Casdorph v. Casdorph
Annotate this Case
January 1995 Term
____________
No. 22687
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JAMES GARLAND CASDORPH, JR.,
Plaintiff Below, Appellant
v.
SHELA GAIL CASDORPH
Defendant Below, Appellee
________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable C. Patrick Casey, Circuit Judge
Civil Action No. CA-75-2544
AFFIRMED
_________________________________________________
Submitted: May 10, 1995
Filed: July 13, 1995
Harold S. Albertson, Jr.
Albertson & Jones
Charleston, West Virginia
Attorney for the Appellant
W. Cassel Pulliam
Mark D. Moreland
Mark D. Moreland, L.C.
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "The awarding of support for adult children who meet the
criteria established in James G. v. Caserta, 175 W. Va. 406, 332 S.E.2d 872 (1985), and McKinney v. McKinney, 175 W. Va. 640, 337 S.E.2d 9 (1985), is within the jurisdiction of both the family law
master and the circuit court." Syl. Pt 2, Kinder v. Schlaegel, 185
W. Va. 56, 404 S.E.2d 545 (1991).
2. "Under the common law where a child is incapable of
supporting himself because of physical or emotional disabilities,
the parents' obligation to support continues beyond the child's age
of majority." Syl. Pt. 10, James G. v. Caserta, 175 W. Va. 406,
332 S.E.2d 872 (1985).
3. A disabled child's entitlement to post-majority child
support is not determined solely by whether onset of the disabling
condition occurred before or after the child reached the age of
majority. When the onset of a child's disability occurs after the
age of majority, the duty of the parent(s) to provide post-majority
child support may be premised upon the trial court's conclusion
that the disabled child has never been emancipated from his/her
parent(s) either prior to or subsequent to attainment of the age of
majority.
4. In making the determination of whether a disabled child
was unemancipated at the time the disability occurred, the trial
court should examine the facts and circumstances of each case,
giving consideration to the following factors, as well as any
others germane to the issue of emancipation: 1) whether the child
continually resided in the home of one of his/her parents; 2)
whether the child continually remained dependent upon his/her
parent(s) for financial support; and 3) whether the child has ever
married.
Workman, J.:
This case is before the Court upon the appeal of James Garland
Casdorph from the June 29, 1994, order of the Circuit Court of
Kanawha County, in which the trial court concluded that the
Appellant has a duty to pay child support to the Appellee, Shela
Gail Casdorph, for the parties' daughter, Stacie Gail Casdorph
(hereinafter Stacie). Stacie is past the age of majority and
unemancipated, as well as totally and permanently disabled due to
an automobile accident. The only issue before the Court is whether
the circuit court erred in ordering the Appellant to pay post-
majority child support. Based on a review of the record, the
parties' briefs, and all other matters submitted before this
Court,See footnote 1 we find that the trial court did not err in its ruling and
accordingly, we affirm.
I.
On April 21, 1966, the Appellee and the Appellant were married
in Kanawha County, West Virginia. The couple had two children
during the marriage, Stacie, who was born on October 18, 1971, and
Courtenay Lynn, who was born on May 24, 1974.
On October 22, 1976, the parties were granted a divorce. The
final divorce order entered that same day provided that the
Appellant was to pay child support for Stacie and Courtenay "so
long as each child is under the age of 18 years, unmarried, and not
emancipated."
Stacie turned eighteen years old on October 18, 1989, and
ceased to be a minor child under the state law.See footnote 2 Consequently,
pursuant to the October 22, 1976, order, the Appellant's decretal
duty to provide child support for Stacie ceased. However, Stacie
never married, continued living at home with the Appellee and
remained dependent upon the Appellee for support.See footnote 3
On February 10, 1991, Stacie was involved in an automobile
accident, and was rendered a quadriplegic due to the severance of
her spinal cord. She also suffered a severe and permanent brain
injury. Stacie was subsequently found incompetent by the Kanawha County Commission, and the Appellee was appointed as her
committee.See footnote 4
From the date of her injury, until over three and one-half
years later, Stacie continued to reside with the Appellee in her
home, and the Appellee took the responsibility for Stacie's care,
as Stacie was unable to attend to any of her own personal needs,
including personal hygiene and nutrition. In November of 1994, the
Appellee placed Stacie in a group home.
Since the Appellant refused to make any personal or financial
contribution to Stacie's care and maintenance, on December 22,
1992, the Appellee filed a petition for modification of child
support and determination of past-due child support, seeking an
order requiring the Appellant to pay child support for Stacie
retroactive to the date of her injury.See footnote 5 By recommended order dated
March 22, 1994, the family law master, after conducting a hearing
on the petition, found that the Appellant had no duty to support
his disabled daughter. The Appellee filed a petition for review of the recommended order with the circuit court, and the circuit
court, after conducting a hearing, concluded that the Appellant was
legally obligated to pay child support for Stacie and, therefore,
entered the order modifying child support.
II.
The only issue before the Court is whether a parent is legally
obligated to provide child support to a disabled child where the
child's disability did not occur until after the child attained the
age of majority. The Appellant argues that a parent's legal duty
to support a child must have a predictable limit, which the
Appellant maintains is the age of majority. Thus, the Appellant
contends that since his daughter's disability occurred after she
reached the age of majority, no legal duty to support her exists.See footnote 6 In contrast, the Appellee relies upon this Court's decision in
James G. v. Caserta, 175 W. Va. 406, 332 S.E.2d 872 (1985), as
support for the proposition that the Appellant has a legal duty to
provide support for their disabled daughter. The Appellee
maintains that the duty to provide support for a disabled child who
is physically and mentally unable to provide for her own needs
cannot hinge on whether the disability will be suffered before that
child turns eighteen, but rather should be determined by whether
the child is emancipated from his/her parents when the disability
was incurred.
We initially addressed a parent's duty to provide support for
a disabled child in Caserta, a decision involving two consolidated
cases of parents seeking to recover damages from health care
providers for wrongful pregnancy, wrongful life and wrong birth.
Id. at 408, 332 S.E.2d at 874. The causes of action arose out of
a physician's alleged negligence in the performance of a tubal
ligation, and another physician's alleged failure to perform an
amniocentesis test which would have revealed a birth defect in the
fetus. Id. In examining whether the parents could recover the extraordinary costs incurred as a result of the birth defect after
the child reached the age of majority, we held that "[u]nder the
common law where a child is incapable of supporting himself because
of physical or emotional disabilities, the parents' obligation to
support continues beyond the child's age of majority."See footnote 7 Id. at
416, 332 S.E.2d at 882 and Syl. Pt. 10. Additionally, we observed
that "'[t]he duty on the parent to provide post-majority support
arises not from the nature of the support or benefits sought, but
from the condition of the child seeking the benefit.'" Id.
(quoting Lieberman v. Lieberman, 517 S.W.2d 478, 480 (Mo.App.
1974)).
The first divorce action before this Court concerning the
issue of a post-majority child support award involved a circuit
court's order requiring a father to continue to pay child support
until his son reached twenty-one years of age. McKinney v.
McKinney, 175 W. Va. 640, 337 S.E.2d 9 (1985). In McKinney, we
held that "[a]lthough we do not encourage parents to jettison their
children upon the day those children reach their majority, parents
are not legally obligated to take care of their children beyond that day."See footnote 8 Id. at 642, 337 S.E.2d at 10. However, we limited
this holding with the following caveat:
There may well be special circumstances
where a parent will be legally liable to
support an adult child. Such a case is not
before us now so we will not anticipate our
decision. We will note, however, that
although the general rule is one of non-
liability, there is an exception for an adult
child who is unmarried, unemancipated and
insolvent and physically or mentally
incapacitated from supporting himself.
Id. at n.2.
Finally, in Kinder v. Schlaegel, 185 W. Va. 56, 404 S.E.2d 545
(1991), a father sought review before the circuit court of a family law master's finding in a divorce proceeding that the father had a
duty to provide support for his disabled child who was over the age
of majority. The circuit court overturned the decision of the
family law master, ruling instead that neither the family law
master nor the circuit court had jurisdiction to enter a child
support award since the child was beyond the age of majority. Id.
at 57, 404 S.E.2d at 546. The record in Kinder established that
the child had been mentally retarded since birth; however, he was
over the age of eighteen at the time the divorce proceeding was
initiated. Id. Moreover, due to the disability, the child was
precluded from supporting himself. Id. at 56, 404 S.E.2d 545. We
concluded that because parents may have a duty to provide post-
majority child support to an adult child who is physically and/or
mentally unable to support himself, the circuit court and the
family law master had jurisdiction. Id. at 58, 404 S.E.2d at 547.
The distinguishing factor between the instant case and Kinder
is that while the children in both cases were past the age of
majority at the time child support was sought, in Kinder the
disability existed prior to the child reaching the age of majority,
and both parents were aware of their child's disability prior to
the divorce proceeding. In the present case, the child was not
disabled prior to attaining the age of majority, and the onset of
the disability did not occur until after child support had
terminated in accordance with the provisions of the divorce decree. Thus, the issue here is whether a parent has a duty to support a
child who becomes disabled subsequent to reaching the age of
majority where the child has continually remained dependent upon
either one or both parent(s) since attaining the age of majority.
Clearly, there would seem to be a moral duty for any
responsible parent with the ability to assist in the support of his
or her disabled child to do so. The legal issue, however, is more
difficult.
We note at the outset, that a majority of jurisdictions either
require that the child be incapacitated at the time of reaching the
age of majority as a prerequisite to a parent's duty to provide
post-majority support to the child, or else have only addressed the
issue of post-majority support where the disabling condition was
present prior to the child becoming that age. See Martin v.
Martin, 494 So. 2d 97, 99-100 (Ala. Civ. App. 1986); Petty v. Petty,
252 Ark. 1032, 1035-37, 482 S.E.2d 119, 120-21 (1972); Koltay v.
Koltay, 667 P.2d 1374, 1376 (Colo. 1983); Nelson v. Nelson, 548 A.2d 109, 116 (D.C. 1988); Breuer v. Dowden, 207 Ky. 12, 15, 268 S.W. 541, 542 (1925); Castle v. Castle, 15 Ohio St.3d 279, 283, 473 N.E.2d 803, 804 (1984); see also Noralyn O. Harlow, Annotation,
Postmajority Disability as Reviving Parental Duty to Support Child,
48 A.L.R. 4th 919, 926 (1986); see generally Todd R. Smyth,
Annotation, Child Support: Court's Authority to Reinstitute Parent's Support Obligation After Terms of Prior Decree Have Been
Fulfilled, 48 A.L.R. 4th 952, 960-61 (1986). However, a few
jurisdictions have held that a parent has a legal duty to support
a disabled child regardless of whether her disability commenced
before or after the child either was emancipated or attained the
age of majority. See Levy v. Levy, 245 Cal. App. 2d 341, 363, 53 Cal. Rptr. 790, 803 (1966) (stating that "[w]here an adult child is
incapable of self support the duty [of a parent to provide support]
may continue or arise"); Sininger v. Sininger, 300 Md. 604, 611,
479 A.2d 1354, 1358 (1984)(stating that "a parent who has the
means to do so, has a duty to support an incapacitated adult child
whose disability commenced after she attained the age of
majority").
The limited issue before us is whether any obligation of
support is owed a child who becomes disabled after reaching the age
of majority, but who has neither married, nor ceased living at home
with the custodial parent, and who has remained dependent upon that
parent for support continuously since attaining the age of
majority.See footnote 9
To resolve this issue, it is necessary to further explore the
concept of emancipation and what it entails. The Legislature, by
enacting West Virginia Code § 48-2-15d,See footnote 10 has already recognized
that a child who turns eighteen is not necessarily "emancipated" in
accordance with West Virginia Code § 2-3-1, where the child is
unmarried and residing with a parent, but is continuing substantial
work towards a diploma in a secondary educational or vocational
program.See footnote 11.Parental support of an unemancipated disabled adult child
is somewhat analogous to support of a state hospital resident.
With the enactment of West Virginia Code § 27-8-1 (1992), the
Legislature enabled the state to collect reimbursement for the
cost of the maintenance of patients admitted to state hospitals
from "each patient or from the committee or guardian of the
estate of the patient, or the estate of the patient if deceased,
or if that be insufficient, then from the patient's husband or
wife, or if the patient be an unemancipated child, the father and
mother, or any of them." Id. (emphasis added).See footnote 12 See W. Va. Code § 48-2-15d; see also supra note 7.
Further, West Virginia Code § 49-7-27 (1995), reflects an
appreciation of the fact that emancipation may encompass more than
the child's age as the following statutory language demonstrates:
"[a] child over the age of sixteen may petition a court to be
declared emancipated[,] . . . [u]pon a showing that such child can
provide for his physical and financial well-being and has the
ability to make decisions for himself. . . ." Id. Even in
McKinney, we indicated that, in the case of the disabled child,
attention would be given to more than just whether the child had reached the age of eighteen, when we discussed the disabled adult
child in terms of whether he was "unmarried, unemancipated and
insolvent and physically or mentally incapacitated from supporting
himself." 175 W. Va. at 42, 337 S.E.2d at 10, n.2.
It is also instructive to examine the decisions of other
jurisdictions in which it has been determined that the concept of
emancipation entails more than just attaining the age of majority.
For instance, in Turner v. McCune, 4 Mass. App. Ct. 864, 357 N.E.2d 942 (1976), the appeals court stated that emancipation "does not
occur automatically upon reaching the age of majority." Id. at
865, 357 N.E.2d at 943. Further, the Court of Appeals of Ohio
discussed whether child support payments had terminated for a child
who had social and learning disabilities in In re Owens, 96 Ohio
App. 3d 429, 645 N.E.2d 130 (1994). In Owens, the child was
enrolled in the Federal Job Corps, and while that federal program
provided him with room and board, his mother continued to give him
money, clothing, and other necessities. Id. at 431, 645 N.E.2d at
131. Prior to the father filing a motion to terminate child
support on the basis that the child was emancipated, the child had
dropped out of the program and was again residing with his mother.
Id. at 432, 645 N.E.2d at 131. The Ohio court found that
"[o]rdinarily, emancipation alludes to the freeing of a minor child
from parental control. The question as to when a child is
emancipated so as to relieve a parent from the obligation of support depends upon the particular facts and circumstances of each
case." Id., 645 N.E.2d at 132 (citations omitted). Additionally,
in Wilkosz v. Wilkosz, 124 Ill. App. 3d 904, 464 N.E.2d 1232
(1984), the Appellate Court of Illinois, in holding that a child
who had reached the age of majority was not emancipated for
purposes of the parental immunity doctrine, concluded that "age is
not the sole determinative factor in defining what constitutes an
emancipation[,]" stating that
what constitutes an emancipation is a question
of law, but whether there has been an
emancipation is a question of fact. Thus
defendant's contention that solely because she
reached the age of 18 she is emancipated is a
legal, not factual, question. Rather, the
facts and circumstances surrounding the
emancipation would be a question of fact.
This would include questions of residency,
marital status, and such considerations as
one's address on a driver's license.
Id. at 910, 464 N.E.2d at 1236 (citing, in part, State Farm Mut.
Auto. Ins. Co. v. Differding, 46 Ill. App. 3d 15, 20, 360 N.E.2d 522, 525, rev'd on other grounds, 69 Ill. 2d 103, 370 N.E.2d 543
(1977)). Even the Supreme Court of Arkansas, which ultimately held
in Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985), that a
father was under no duty to support his child who had become
disabled after attaining the age of majority, imparted some
significance to the fact that the parties had stipulated that the
child was emancipated before the accident in that "[the child] . .
. decided, as he well should have, where he wanted to live, where he wanted to go to college, and how he would live." Id. at 119,
685 S.E.2d at 158.See footnote 13
Consequently, a disabled child's entitlement to post-majority
child support is not determined solely by whether the disabling
condition occurred before or after the child reached the age of
majority. When the onset of a child's disability occurs after the
age of majority, the duty of the parent(s) to provide post-majority
child supportSee footnote 14 may be premised upon the trial court's conclusion
that the disabled child has never been emancipated from his/her
parent(s) either prior to or subsequent to attainment of the age of
majority.
In making the determination of whether a disabled child was
unemancipated at the time the disability occurred, the trial court
should examine the facts and circumstances of each case, giving
consideration to the following factors, as well as any others
germane to the issue of emancipation: 1) whether the child
continually resided in the home of one of his/her parents; 2) whether the child continually remained dependent on his/her
parent(s) for financial support; and 3) whether the child has ever
married. Furthermore, prior to awarding post-majority child
support, the trial court should first determine that the child,
after the onset of the mental and/or physical disability, remains
unemancipated.
Applying the preceding criteria to the present case, it is
clear that the Appellant's daughter, while having reached the age
of majority, had not become emancipated from the Appellee at the
time of her disabling accident. Therefore, the trial court
properly concluded that the Appellant had a duty to provide his
disabled daughter with post-majority support.
Based on the foregoing, the decision of the Circuit Court of
Kanawha County is hereby affirmed.
Affirmed.
Footnote: 1
Consideration in rendering this decision was given to an
amicus curiae brief submitted to the Court by the Office of the
Child Advocate. Footnote: 2
West Virginia Code § 2-3-1 (1994) provides, in pertinent
part, that "no person who is eighteen years of age or older shall
lack legal capacity, by reason of his age, to enter into
contracts, sell or purchase real or personal property, create a
lien, execute any legal or other written instrument, prosecute or
defend legal actions, assert claims or deal in his own affairs in
any manner whatsoever." Id. Footnote: 3
Obviously, if the child has his or her own financial
resources, or if the child receives sufficient financial
resources by virtue of a civil action or otherwise, then that
child would not be financially dependent upon his or her
parent(s). Footnote: 4
The Social Security Administration also determined that
Stacie was totally and permanently disabled. Based on this
determination, she receives supplemental security income.Footnote: 5
At the time the Appellee filed her petition, the Appellant
was in arrears with respect to the payment of child support
pursuant to prior court orders. However, since the filing of
said petition, the Appellant has paid the child support
arrearage. Accordingly, this is not an issue before the Court.Footnote: 6
The Appellant also argues, without any supporting
authority, that the circuit court erred in awarding child support
because its jurisdiction to award further child support ceased
when the Appellant stopped paying child support for his daughter
when she turned eighteen. The Appellee, however, correctly
argues that since the father was in arrears with respect to the
payment of child support at the time the Appellee's petition was
filed, the circuit court had continuing jurisdiction over the
parties.
In Robinson v. McKinney, 189 W. Va. 459, 432 S.E.2d 543
(1993), we found that "[t]he W. Va. Code also provides that
'[c]hild support shall, under all circumstances, always be
subject to continuing judicial modification.'" Id. at 464, 432 S.E.2d at 548 (quoting, in part, W. Va. Code § 48-2-16(a)
(1984)). Further, in Kinder v. Schlaegel, 185 W. Va. 56, 404 S.E.2d 545 (1991), we held that "[t]he awarding of support for
adult children who meet the criteria established in James G. v.
Caserta, 175 W. Va. 406, 332 S.E.2d 872 (1985), and McKinney v.
McKinney, 175 W. Va. 640, 337 S.E.2d 9 (1985), is within the
jurisdiction of both the family law master and the circuit
court." Id. at 56, 404 S.E.2d at 545, Syl. Pt. 2; see supra text
for detailed discussion of Caserta and McKinney. Accordingly, we
find the Appellant's jurisdictional argument is without merit.Footnote: 7
See Comment, The Parental Duty to Support Disabled Adult
Children, 9 DePaul L. Rev. 245 (1959-60) (discussing generally
the evolution of this parental duty of support).Footnote: 8
The McKinney case has been modified by the Legislature with
the enactment of West Virginia Code § 48-2-15d (1995), which
provides, in pertinent part, that:
(a) Upon a specific finding of good
cause shown and upon findings of fact and
conclusions of law in support thereof, an
order for child support may provide that
payments of such support continue beyond the
date when the child reaches the age of
eighteen, so long as the child is unmarried
and residing with a parent and is enrolled as
a full-time student in a secondary
educational or vocational program and making
substantial progress towards a diploma:
Provided, That such payments may not extend
past the date that the child reaches the age
of twenty.
(b) Nothing herein shall be construed to
abrogate or modify existing case law
regarding the eligibility of handicapped or
disabled children to receive child support
beyond the age of eighteen.
Footnote: 9
Obviously, the even more difficult issue, one not before us
at this time, would involve the imposition of an obligation of
support on parents when the child has become disabled by virtue
of an accident or disease where the child has not only attained
the age of majority but, until the disability, was self-
sufficient and totally independent from his parents.Footnote: 10
See supra note 7.Footnote: 11
Similarly, parental support of an unemancipated disabled
adult child is somewhat analogous to support of a state hospital
resident, which the Legislature dealt with in the enactment of
West Virginia Code § 27-8-1 (1992). The Legislature enabled the
state to collect reimbursement for the cost of the maintenance of
patients admitted to state hospitals from "each patient or from
the committee or guardian of the estate of the patient, or the
estate of the patient if deceased, or if that be insufficient,
then from the patient's husband or wife, or if the patient be an
unemancipated child, the father and mother, or any of them." Id.
(emphasis added).Footnote: 12
Footnote: 13
See Robert M. Washburn, Post-Majority Support: Oh Dad,
Poor Dad, 44 Temp. L.Q. 319, 345 (1970-71) (stating that "[t]he
logical framework here is simply that mere age should not be
determinative of the right to support")(emphasis added).
Footnote: 14
Of course, like any other child support case, the trial
court must give consideration to the financial resources of the
parent(s) and their consequent ability to pay child support in
determining an appropriate award.
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