          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2013 Term
                                                                     FILED
                                                                  April 12, 2013
                                      No. 12-0090                 released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                                                                SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA



                                     CONNIE ELLIS,
                               Intervenor Below, Petitioner

                                            v.

                           LINDA SWISHER, as Administratix of
                              the Estate of Thomas R. Swisher,
                                Plaintiff Below, Respondent



          ______________________________________________________

                   Appeal from the Circuit Court of Randolph County
                      Honorable Jaymie Godwin Wilfong, Judge
                              Civil Action No. 11-C-94

                                 AFFIRMED
            ____________________________________________________

                                Submitted: March 27, 2013
                                  Filed: April 12, 2013

Frank P. Bush, Jr., Esq.                                David H. Wilmoth, Esq.
Elkins, West Virginia                                   Elkins, West Virginia
Counsel for Petitioner                                  Counsel for Respondent



The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT



              1. “In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and the

ultimate disposition under an abuse of discretion standard, and we review the circuit court’s

underlying factual findings under a clearly erroneous standard. Questions of law are subject

to a de novo review.” Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108,

492 SE.2d 167 (1997).



              2. “Money recovered in an action by an administrator . . . for causing the death

of his decedent by wrongful act, neglect, or default, does not constitute general assets of the

estate of such decedent in the hands of the administrator to be administered. . . . Such money

belongs to the particular persons who by law are entitled thereto.” Syl. Pt. 4, in part,

Thompson & Lively v. Mann, 65 W.Va. 648, 64 S.E. 920 (1909).
Per Curiam:

                   Petitioner Connie Ellis appeals from the October 27, 2011, decision of the

Circuit Court of Randolph County in which the circuit court denied her claim for a share in

the settlement proceeds from a wrongful death action.1 The petitioner, the former spouse of

the decedent Thomas R. Swisher,2 sought a share of the settlement yield based on her

monthly receipt of payments from the decedent for a child support arrearage.3 Because Ms.

Ellis could not demonstrate that she was financially dependent on the decedent at the time

of trial, the circuit court ruled that she was not entitled to a portion of the subject settlement

funds. On appeal, the petitioner contends that her monthly receipt of $125 in payment of the

arrearage was sufficient to establish financial dependence on Mr. Swisher. Alternatively, the

petitioner looks to the language of West Virginia Code § 55-7-6(b) (2008) that permits a

court to award wrongful death settlement proceeds based on equitable grounds. Upon our

consideration of the record in this matter in conjunction with the applicable statutory

provisions and decisional law, we find that the trial court did not err in ruling that Ms. Ellis

was not entitled to a share of the wrongful death settlement proceeds. Accordingly, we

affirm.

          1
              See W.Va. Code § 55-7-5 (2008).

        The petitioner and the decedent were married in 1979 and divorced in 1982. Two
          2

children were born of that marriage.

        The record is unclear as to when the petitioner first sought to collect the unpaid child
          3

support. However, when Mr. Swisher began making payments on the arrearage at issue in
2003, the children had already reached the age of majority.

                                                1
                         I. Factual and Procedural Background

              Mr. Swisher died intestate on July 5, 2010, as a result of a motor vehicle

accident. The driver of the vehicle that struck the decedent’s motorcycle head-on had an

insurance policy with $250,000 limits per accident. Mr. Swisher had underinsured coverage

in the amount of $50,000 with his own insurer.                 This combined amount of

insurance–$300,000–was collected by respondent Linda Swisher as the administratrix of the

decedent’s estate. The respondent was Mr. Swisher’s wife at the time of his death.



              When Mrs. Swisher sought the circuit court’s approval of the wrongful death

settlement proceeds and distribution of those funds, the petitioner filed a motion to intervene

in the proceeding. Upon being granted intervenor status, Ms. Ellis introduced evidence to

support her claim to a portion of the settlement proceeds. Through her personal testimony

and documentary evidence prepared by the Bureau for Child Support Enforcement, the

petitioner demonstrated an established child support arrearage at the time of Mr. Swisher’s

death. Starting on August 31, 2003, Mr. Swisher began paying the petitioner $125 per month

on the aggregate arrearage. At the time of his death, the amount of the arrearage was either

$56,134.44 or $58,286.66.4


       4
         Referring to a schedule prepared by the Bureau for Child Support Enforcement, Ms.
Ellis testified at the hearing held on September 27, 2011, that the amount of the arrearage
was $56,134.44 as of August 31, 2010–a date almost two months after the decedent’s death.
In her brief submitted to this Court and at the oral argument of this matter, counsel for Ms.
                                                                                (continued...)

                                              2
              In ruling on the distribution of the settlement proceeds, the trial court

determined that Mrs. Swisher and each of the decedent’s six children5 were entitled to the

wrongful death proceeds. With regard to the petitioner, however, the circuit court denied her

claim. As support for its ruling, the circuit court cited Ms. Ellis’ testimony that she gave the

arrearage payments to her children and reasoned accordingly that the petitioner “could not

establish that she was financially dependant on Thomas R. Swisher.” Through this appeal,

Ms. Ellis asks this Court to reverse the trial court’s decision regarding her entitlement to a

portion of the wrongful death settlement proceeds.



                                  II. Standard of Review

              We articulated the controlling standard of review for rulings issued by a circuit

court in syllabus point two of Walker v. West Virginia Ethics Commission, 201 W.Va. 108,

492 SE.2d 167 (1997):

                     In reviewing challenges to the findings and conclusions
              of the circuit court, we apply a two-prong deferential standard
              of review. We review the final order and the ultimate
              disposition under an abuse of discretion standard, and we review
              the circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

       4
        (...continued)
Ellis represented that the amount of the arrearage at the time of the decedent’s death was
$58,286.66.

       Mr. Swisher had two children with the petitioner; three children with the respondent,
       5

the youngest of whom is still a minor; and one child out of wedlock.

                                               3
With these standards in mind, we proceed to determine whether the circuit court committed

error by denying the petitioner’s claim to the wrongful death proceeds at issue in this case.



                                         III. Discussion

                 In challenging the trial court’s ruling, Ms. Ellis asserts two arguments. As an

initial ground of appeal, the petitioner contends that the circuit court erred in ruling that she

was not financially dependent on Mr. Swisher at the time of his death. She seeks a ruling

from this Court that a former spouse who is receiving payments against a child support

arrearage is per se financially dependent on the decedent for purposes of recovery under our

Wrongful Death Act. See W.Va. Code §§ 55-7-5 to -7 (2008).6 As an alternative argument,

Ms. Ellis asserts a right to receive wrongful death damages based on the language of West

Virginia Code § 55-7-6(b) which permits recovery upon a showing of equitable entitlement.7


       6
        As we observed in Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539
(1981), our Wrongful Death Act is comprised of three statutes: West Virginia Code §§ 55-7-
5 to -7. 166 W.Va. at 584 n.1, 276 S.E.2d at 541 n.1.
       7
           Subsection 6(b) provides, in pertinent part, that the jury or a court

                 may award such [wrongful death] damages as to it may seem
                 fair and just, and, may direct in what proportions the damages
                 shall be distributed to the surviving spouse and children,
                 including adopted children and stepchildren, brothers, sisters,
                 parents, and any persons who were financially dependent upon
                 the decedent at the time of his or her death or would otherwise
                 be equitably entitled to share in such distribution. . . .

W.Va. Code § 55-7-6(b) (emphasis supplied).

                                                 4
              In ruling that the petitioner “could not establish that she was financially

dependent on Thomas R. Swisher,” the trial court looked to the testimony she tendered at the

September 27, 2011, hearing. Ms. Ellis explained that she either gave one of her two adult

children the entire $125 on a rotating monthly basis, or she split the amount and gave them

each $62.50. With absolute certainty, she testified: “But always, the child support, I split

it just between them.”8 Based on the petitioner’s unwavering testimony that she did not keep

any of the child support arrearage payments for herself, the trial court had little difficulty

concluding that Ms. Ellis was not financially dependent on Mr. Swisher at the time of his

death.



              Seeking to circumscribe the trial court’s ruling concerning her lack of financial

dependency on the decedent, Ms. Ellis maintains that this Court has liberally construed the

language of West Virginia Code § 55-7-6(b) to permit recovery of wrongful death benefits

based on either the regular receipt of financial assistance or some type of services from the

decedent. As support for her position, she relies on Bond v. City of Huntington, 166 W.Va.

581, 276 S.E.2d 539 (1981), a case in which we considered whether the surviving parents of

a deceased unmarried daughter could recover wrongful death damages for their daughter’s

provision of non-monetary household services. Id. at 586, 276 S.E.2d at 542. In deciding




       This explanation followed her testimony that with regard to income tax refunds,
         8

“sometimes we’d split that three (3) ways.”

                                              5
that the parents had established a factual dependency based on their daughter’s provision of

household services for which a monetary value could be estimated, we focused in Bond on

the absence of any language in the 1965 version of West Virginia Code § 55-7-6(b) which

required that “the surviving dependent be legally dependent on the deceased for support.”

Id. at 589-90, 276 S.E.2d at 543-44. In the intervening years since Bond was decided,

subsection 6(b) has been amended multiple times.9 Under the current statutory enactment,

a showing of financial dependency is required for those persons who do not come within the

statutory list of beneficiaries designated based on familial relationship.10 This is clear from

the statutory language that extends wrongful death recovery to “any persons who were

financially dependent upon the decedent at the time of his or her death.” W.Va. Code § 55-7-

6(b) (emphasis supplied). And, as the trial court ruled below, Ms. Ellis failed to demonstrate

that she was financially dependent on Mr. Swisher at the time of his death.




       9
         As we commented in White v. Gosiene, 187 W.Va. 576, 420 S.E.2d 567 (1992): “It
is obvious by the number of changes made to the wrongful death statute in recent years that
this is a matter of some interest to the legislature.” Id. at 583, 420 S.E.2d at 574; see, e.g.,
Rice v. Ryder, 184W.Va. 255, 257-58, 400 S.E.2d 263, 265-66 (1990) (comparing 1965,
1976, 1985, and 1989 versions of subsection 6(b)); Bond, 166 W.Va. at 584-85, 276 S.E.2d
at 541 (discussing history of Wrongful Death Act and specific limitations on recovery under
1931, 1955, and 1961 statutes).
       10
          See Bond, 166 W.Va. at 585 n.3, 276 S.E.2d at 541 n.3 (clarifying that dependency
is not required for those familial relationships initially listed in W.Va. Code § 55-7-6(b), but
is required for remainder class).

                                               6
              The petitioner urges this Court to decide that an established child support

arrearage constitutes the requisite financial dependence on a decedent for purposes of West

Virginia Code § 55-7-6(b). Despite the laudable objectives of enforcing child support

obligations, we are not persuaded by this policy-based argument.11 As the respondent

correctly observes, this Court has consistently disallowed the debts of an estate to be settled

from the proceeds of a wrongful death action. Since we first addressed this issue in

Thompson & Lively v. Mann, 65 W.Va. 648, 64 S.E. 920 (1909), wrongful death recoveries

have been determined to exist solely for the benefit of a decedent’s beneficiaries. As we

recognized in Mann,

                             Money recovered in an action by an
                      administrator . . . for causing the death of his
                      decedent by wrongful act, neglect, or default,
                      does not constitute general assets of the estate of
                      such decedent in the hands of the administrator to
                      be administered. . . . Such money belongs to the
                      particular persons who by law are entitled thereto.

Id. at 648-49, 64 S.E. at 920, syl. pt. 4, in part; see Stone v. CSX Transp., Inc., 10 F.Supp.2d

602, 604 (S.D. W.Va. 1998) (recognizing that wrongful death claims do not belong to the

estate); Syl. Pt. 4, McClure v. McClure, 184 W.Va. 649, 403 S.E.2d 197 (1991) (“Under . .



       11
         Should the Legislature disagree with our ruling, it can amend the statute to provide
for a new beneficiary class under subsection 6(b) premised solely on the existence of a child
support obligation with no concomitant showing of financial dependence on such support.
The statute, as currently written, clearly allows an ex-spouse who has minor children in the
home, and who has an enforceable child support arrearage at the time of her ex-spouse’s
death, to establish financial dependence based on such support. See W.Va. Code § 55-7-6(b).

                                               7
. our wrongful death statute, the personal representative has a fiduciary obligation to the

beneficiaries of the deceased because the personal representative is merely a nominal party

and any recovery passes to the beneficiaries designated in the wrongful death statute and not

to the decedent’s estate.”); Trail v. Hawley, 163 W.Va. 626, 628, 259 S.E.2d 423, 425 (1979)

(“There can be no action against the assets of the decedent’s estate, since the fiduciary when

bringing a wrongful death action is not the agent for the estate.”); see also White v. Gosiene,

187 W.Va. 576, 582, 420 S.E.2d 567, 573 (1992) (observing that “purpose of the wrongful

death act is to compensate the beneficiaries for the loss they have suffered as a result of the

decedent’s death”).



              Given this Court’s longstanding recognition that a wrongful death action is for

the benefit of the decedent’s beneficiaries rather than his creditors, we would be abandoning

over a century of unwavering precedent if we determined that wrongful death damages could

be obtained, under the facts of this case, to satisfy an outstanding child support arrearage.12

And since wrongful death is not based in common law but arises solely from legislative fiat,

this Court lacks the authority to create a new class of beneficiaries under the Wrongful Death




        An ex-spouse, as previously discussed, may be entitled to receive wrongful death
       12

damages under West Virginia Code § 55-7-6(b) upon demonstrating financial dependence
on an existing child support obligation. See supra note11.

                                              8
Act.13 See Gosiene, 187 W.Va. at 582, 420 S.E.2d at 573 (recognizing that “[w]e are not

authorized to alter the provisions of the [wrongful death] statute”).



                 We are similarly unpersuaded by the argument that the necessary authority to

award Ms. Ellis wrongful death damages is found in the statutory language which references

persons “who would otherwise be equitably entitled to share in such distribution.” W.Va.

Code § 55-7-6(b). By including that language, the Legislature clearly intended to provide

the courts of this state with the necessary latitude to consider whether the circumstances of

a given case suggest that an individual, who is otherwise excluded by the statutorily-specified

list of beneficiaries, should still be entitled to recover wrongful death damages. At the same

time, however, we do not believe that the inclusion of this equity-based language was

designed to permit the trial courts of this state to elude the statutory underpinnings of who

is intended to benefit from a wrongful death action.



                 In this case, the record is clear that the petitioner sought to demonstrate

entitlement to the settlement moneys at issue based merely on her receipt of the monthly

arrearage payments and nothing more. As discussed above, the receipt of that payment by

itself was not on the facts of this case sufficient to demonstrate the statutory requirement of

financial dependence. See W.Va. Code § 55-7-6(b). Critically, Ms. Ellis has asserted no


       13
            See supra note 11.

                                               9
additional grounds in support of her equity-based appeal for entitlement to the subject

settlement proceeds.




                                      IV. Conclusion

              Based on the forgoing, we do not find that the circuit court erred in its decision

to deny the petitioner a share of the wrongful death settlement moneys at issue in this case.

Accordingly, the decision of the Circuit Court of Randolph County is affirmed.

                                                                                     Affirmed.




                                              10
