Hedrick v. Hedrick

624 S.E.2d 463, 218 W. Va. 116, 2005 W. Va. LEXIS 123
CourtWest Virginia Supreme Court
DecidedNovember 17, 2005
DocketNo. 32571
StatusPublished
Cited by2 cases

This text of 624 S.E.2d 463 (Hedrick v. Hedrick) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hedrick v. Hedrick, 624 S.E.2d 463, 218 W. Va. 116, 2005 W. Va. LEXIS 123 (W. Va. 2005).

Opinion

PER CURIAM:

This is an appeal by David Wayne Hedrick (hereinafter “Appellant”) from an order of the Circuit Court of Kanawha County holding that a child support arrearage collection was not barred by the ten-year statute of limitations. On appeal, the Appellant maintains that the lower court incorrectly determined that the statute of limitations did not bar the action against him. • Upon thorough review of the record, the briefs, and applicable precedent, this Court reverses the decision of the Circuit Court of Kanawha County.

I. Factual and Procedural History

The Appellant and his former wife, Carolyn Hedrick, were divorced by order entered on June 18, 1975. In that June 18, 1975, order, child support of $150.00 monthly was granted for the benefit of the parties’ two sons, the younger of whom reached the age of majority on July 17, 1988. The record reflects that various attempts were made between 1975 and the present to collect child support from the Appellant. On October 8, 1985, for instance, a suggestee execution was issued in an attempt to collect the owed child support. In 1989, three income withholding notices were sent to the Appellant. Prior to June 1990, the Appellant relocated to the State of Florida, and attempts to obtain federal and state tax refund offsets were made at least seven times from 1989 to 2001. The calculations contained in the record reflect that the Appellant was in arrears in the payment of child support by $67,483.07, including interest, from June 1, 1975, to October 31, 2002.

On January 15, 2002, the West Virginia Bureau for Child Support Enforcement (hereinafter “Bureau”) issued a wage withholding order to obtain the child support arrearage. The Appellant sought relief from that wage withholding order, and on December 10, 2002, an order was issued by the Family Court of Kanawha County holding that the statute of limitations barred enforcement of the wage withholding order against the Appellant. The Family Court reasoned that “[t]he entire notion of administrative collection attempts, such as wage with holding [sic] and tax intercepts, are new to the law and are not on the same level as a court-sanctioned collection attempts, such as a writ of execution or a suggestion.”

The Bureau and Mrs. Taylor appealed that determination to the Circuit Court of Kana-wha County. On June 16, 2003, the Circuit Court reversed the Family Court order, reasoning that the Bureau “has taken enforcement action through income withholding and income tax refund intercept, and that there was never a 10-year period within which collection efforts were not made.” Further, the Circuit Court held that the Appellant had not properly pled or raised the statute of limitations defense. On March 15, 2005, this Court granted the Appellant’s petition for appeal from the Circuit Court order.

II. Standard of Review

In examining the Circuit Court’s order currently on appeal, this Court has consistently been guided by the rule that “[t]his Court reviews the circuit court’s final [118]*118order and ultimate disposition under an abuse of discretion standard. We revievp challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). Utilizing that standard of review, we examine the issues presented sub judice.

III. Discussion

A. The Statute of Limitations

The statute of limitations governing the execution of judgment is found at West Virginia Code § 38-3-18 (1923) (Repl. Vol. 1997), and provides as follows:

On a judgment, execution may be issued within ten years after the date thereof. Where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which has been returned unsatisfied. An action, suit or scire facias may be brought upon a judgment where there has been a change of parties by death or otherwise at any time within ten years next after the date of the judgment; or within ten years from the return day of the last execution issued thereon on which there is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire facias be against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative.

B. Shaffer v. Stanley

Approximately five months after the issuance of the lower court’s order in this matter, this Court encountered a remarkably similar ease and issued an opinion in Shaffer v. Stanley, 215 W.Va. 58, 593 S.E.2d 629 (2003). In Shaffer, released on November 26, 2003, this Court held that administrative actions to obtain child support payments, such as the tax refund intercepts attempted in the present case, do not act to toll the running of the statute of limitations. In Shaffer, a former husband had sought to terminate social security withholding by the Bureau of Child Support Enforcement for collection on judgment for support arrearag-es. In addressing the arguments raised in that case, this Court reiterated the principle that “when a provision for periodic payments of child support is made in a divorce decree, these installments become decretal judgments as they become due.” 215 W.Va. at 63, 593 S.E.2d at 634. In syllabus point six of Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993), this Court had previously clarified that “[t]he ten-year statute of limitations set forth in W.Va.Code, 38-3-18 [1923] and not the doctrine of laches applies when enforcing a decretal judgment which orders the payment of monthly sums for alimony or child support.”

The Shaffer Court reasoned that “[a] comparison of the traditional definition of and procedure for the execution of a judgment with the provisions for tax offsets indicates to this Court that a tax offset is not an execution....” 215 W.Va. at 65, 593 S.E.2d at 636. A tax offset, the Shaffer Court explained, “does not involve a process of the court that results in the issuance of a judicial writ.” Id. at 65, 593 S.E.2d at 636. “Rather, a tax offset is a purely administrative action initiated and carried out by executive agencies.” Id.1 The Shaffer Court ultimately concluded that the Bureau’s attempts to in-[119]*119tercept the former husband’s income tax refunds did not constitute an execution, for purposes of tolling ten-year limitations period to collect on judgment.2 Specifically, in syllabus point five of Shaffer, this Court explained as follows:

The procedure utilized by the Bureau for Child Support Enforcement to obtain payment of past due child support from Federal and State tax refunds from over-payments made to the Secretary of the Treasury of the United States or the State Tax Commissioner, as provided for in W.Va.Code § 48-18-117 (2001) and W.Va.

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Bluebook (online)
624 S.E.2d 463, 218 W. Va. 116, 2005 W. Va. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hedrick-v-hedrick-wva-2005.