                              STATE OF WEST VIRGINIA

                         IN THE SUPREME COURT OF APPEALS



     Tabitha P.,
                                                            FILED
     Petitioner Below, Petitioner                                       February 21, 2013

                                                                           released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK
     vs.) No. 11-1293 (Mercer County 10-D-525)                           SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA

     Robby P.,

     Respondent Below, Respondent



                                   MEMORANDUM DECISION

                    The petitioner both herein and below, Tabitha P.1 (“Petitioner”), appeals from
     an order entered August 15, 2011, by the Circuit Court of Mercer County, which denied her
     petition for appeal from a final divorce order entered by the family court on April 28, 2011.
     Petitioner had asserted several assignments of error in her appeal to the circuit court;
     however, on appeal to this Court, her challenge raises only the issue of retroactive child
     support. The appeal was timely perfected by counsel, and the appendix record accompanied
     the petition. Based upon Petitioner’s written submission and oral argument,2 the portions of
     the record designated for our consideration, and the pertinent authorities, we find that the
     circuit court erred in failing to make the increased amount of child support retroactive to the
     month in which the respondent herein and below, Robby P. (“Respondent”), began receiving
     increased income due to the receipt of disability payments. Accordingly, we reverse the
     underlying decision. This Court further finds that this case presents no new or significant
     questions of law, and, thus, will be disposed of through a memorandum decision as
     contemplated by Rule 21 of the Revised Rules of Appellate Procedure.

                  On June 15, 2010, the Family Court of Mercer County issued a Domestic
     Violence Protective Order based on a petition filed by Petitioner against her then husband,


                   1
                    “We follow our past practice in juvenile and domestic relations cases which
     involve sensitive facts and do not utilize the last names of the parties.” State ex rel. West
     Virginia Dep’t of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182
     n.1 (1987).
                   2
                    Respondent, Robby P., has not filed any responsive pleadings. He filed only
     a motion for continuance of the oral argument, which stated that he is incarcerated and
     unable to attend. This Court denied the motion by order entered January 24, 2013.

87
Respondent. At that time, the lower court ordered Respondent to pay $100 per month3 child
support for the parties’ two minor children. Thereafter, on July 21, 2010, Petitioner filed for
divorce. Respondent filed his financial statement on October 26, 2010, utilizing the form
prepared and distributed by this Court’s Administrative Office, which states on its face that
any changes in information “MUST immediately” be reported to the family court. (emphasis
in original). A hearing was held on September 29, 2010, in the family court. On October 19,
2010, the family court entered a temporary order that addressed shared parenting and ordered
Respondent to continue to pay the $100 per month in child support.

                As a result of Respondent’s failure to pay the ordered child support, Petitioner
filed a petition for contempt on December 3, 2010. A contempt hearing was held December
6, 2010, before the family court, during which Respondent testified that his application for
disability insurance payments had been approved in November 2010 and that he hoped to
begin receiving checks soon. The family court found Respondent in contempt for his prior
non-payment of child support, found that the contempt was not willful due to an inability to
pay, and directed him to pay the arrearage “as soon as you can to purge the contempt.”

               Subsequently, on March 31, 2011, a final divorce hearing was held before the
family court. Evidence was presented concerning the parties’ incomes, and it was revealed
that Respondent had begun receiving disability benefits at some point prior to January 24,
2011. The family court determined that Respondent’s current gross income was $2,539 per
month; recalculated child support based upon that income; and ordered Respondent to pay
$521.48 per month to Petitioner, with a start date of April 1, 2011. Petitioner’s counsel
objected at the hearing and, instead, requested that the revised child support amount be made
retroactive to the date that Respondent began receiving the disability income that he had
failed to report to the court. The family court denied the request on the basis that there had
been no motion filed for modification of child support. Counsel for Petitioner asserted that
counsel had no knowledge on which to file a petition to modify because Respondent had
failed to disclose his change in income. The family court again denied the request.

                Petitioner appealed to the circuit court. By order entered August 15, 2011, the
circuit court affirmed the family court’s ruling and rejected the contention that the child
support award should be modified retroactively in the absence of a petition to modify. In so
ruling, the circuit court stated, in pertinent part, that “[c]onstruing W. Va. Code § 48-11-105
and Rule 23 together, the filing of a petition to modify an existing child support obligation



              3
              The amount of child support was based upon income attributed to Respondent
because he had no income.

                                               2

is an integral step for applying a child support modification retroactively.” Petitioner now
appeals from this adverse ruling.

              On appeal to this Court, Petitioner asserts that the child support award should
have been modified retroactively. Petitioner explains that, in the present case, Respondent
had not disclosed the onset date of his receipt of disability income, which prevented
Petitioner from having any knowledge or basis to file a motion to modify the temporary child
support order.

               Before this Court, Petitioner challenges the circuit court’s denial of her appeal
from the adverse ruling of the family court. We review such appeals generally in accordance
with the following standard:
                      In reviewing a final order entered by a circuit court judge
               upon a review of, or upon a refusal to review, a final order of a
               family court judge, we review the findings of fact made by the
               family court judge under the clearly erroneous standard, and the
               application of law to the facts under an abuse of discretion
               standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). In regard to child support,
we previously directed that “[q]uestions relating to alimony and to the maintenance and
custody of the children are within the sound discretion of the court and its action with respect
to such matters will not be disturbed on appeal unless it clearly appears that such discretion
has been abused.” Syl., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). With
these standards in mind, we proceed to consider Petitioner’s argument.

                The issue before this Court does not concern the amount of child support
ordered by the lower courts. Rather, the case subjudice requires a determination of the
appropriate date on which the higher child support amount should be applied. As recognized
by the circuit court’s order, “no petition to modify the temporary order setting the amount of
child support was ever filed.” Thus, the circuit court reasoned that “because there was
already a child support order in effect at the time the respondent’s income substantially
increased, filing a petition to modify the existing child support obligation was integral to the
family court’s authority to make a child support award retroactive.” The circuit court based
its decision on its interpretation of W. Va. Code § 48-11-105 (2008) (Repl. Vol. 2009) and
Rule 23 of the West Virginia Rules of Practice and Procedure for Family Court. In pertinent
part, W. Va. Code § 48-11-105(a) states that “[t]he court may modify a child support order,
for the benefit of the child, when a motion is made that alleges a change in the circumstances
of a parent or another proper person or persons. . . .” Additionally, Rule 23 states that,
“[e]xcept for good cause shown, orders granting relief in the form of spousal support or child
support shall make such relief retroactive to the date of service of the motion for relief.”

                                               3

               In the instant case, the lower courts determined that retroactive relief was
precluded because no motion for modification had been filed. Indeed, this Court’s long-
standing precedent has made clear that “[t]he authority of a family court to modify a spousal
support or child support award is prospective only and, absent a showing of fraud or other
judicially cognizable circumstance in procuring the original award, a family court is without
authority to modify or cancel accrued alimony or child support installments.” Syl. pt. 2,
Hayhurst v. Shepard, 219 W. Va. 327, 633 S.E.2d 272 (2006). Accordingly, a modification
of a child support award must be preceded by a motion to modify, and any relief granted shall
be made retroactive to the date of service of the motion.

                While Petitioner agrees with the general legal principles applied by the lower
courts, Petitioner argues that the lower courts’ application of the same to the present case is
misguided. The instant proceeding involves a temporary order entered during a domestic
violence proceeding, which temporary order was continued when the petition for divorce was
filed. Here, the family court set the temporary child support at $100 per month based upon
Respondent’s testimony that he had no income. Once the family court received information
from Respondent at the final divorce hearing in March 2011 concerning the increase in his
income via the disability benefits that he began receiving some months earlier, it applied the
statutory guidelines to calculate child support. However, it then denied petitioner’s request
that the re-calculated amount of child support be retroactive to the date on which Respondent
began receiving disability benefits. We agree with Petitioner that the lower courts erred.
The higher child support amount should have been effective on the date when the
Respondent’s income had increased.

                After Petitioner filed her petition for divorce, Respondent filed his answer,
along with his financial statement. In bold lettering on the preprinted form, the Respondent
was cautioned that, “[i]f the information you provide in this form, or file with this form
changes after you file the form, you MUST immediately provide the new information.”
(emphasis in original). See, e.g., W. Va. Code § 48-11-102(b) (2001) (Repl Vol. 2009)
(requiring timely financial updates be made regarding changes in gross income). Subsequent
to the filing of the Respondent’s financial statement, he began receiving monthly disability
insurance payments around January 24, 2011. Respondent, however, failed to provide this
information to either the family court or to Petitioner. Rather, it was only during
Respondent’s testimony at the final divorce hearing on March 31, 2011, that it was revealed
that Respondent’s monthly gross income had increased from zero to $2,539, and had been
such for several months.

              The guidelines for fixing the amount of child support direct that “[a] child
support order is determined by dividing the total child support obligation between the parents

                                              4

in proportion to their income. Both parents’ adjusted gross income is used to determine the
amount of child support.” W. Va. Code § 48-13-201 (2001) (Repl. Vol. 2009). As part of
his adjusted gross income, Respondent’s disability payments were properly considered in
calculating the child support award. However, the lower courts erred in setting the effective
date subsequent to Respondent’s late disclosure.4 The income information was possessed
solely by Respondent, and he should not benefit from, or be rewarded for, his nondisclosure.
Cf. Syl. pt. 1, in part, Maples v. West Virginia Dep’t of Commerce, Div. of Parks &
Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996) (“A litigant may not silently acquiesce
to an alleged error, or actively contribute to such error[.]”). Based on the full evidence
presented, the higher child support amount was warranted and should have been made
payable from the time Respondent began receiving the additional income as his obligation
to update Petitioner on his increased income was triggered when he began receiving the
disability payments. To the extent that the final order had not been entered at the time the
additional income was discovered during the hearing testimony, there was nothing to modify
or alter retroactively, and Petitioner had no basis or knowledge on which to file a motion to
modify.5

                For the foregoing reasons, we find that the lower courts erred in setting April
1, 2011, as the effective date of the increased child support amount. In light of the evidence
that Respondent’s income increased sometime prior to January 24, 2011, the effective date
of the increased child support amount should coincide with the date of Respondent’s receipt
of his disability payments. Therefore, the case is reversed and remanded for a determination
of the actual date on which the increased monthly income became effective.

              4
               But cf. Skidmore v. Skidmore, 225 W. Va. 235, 691 S.E.2d 830 (2010) (per
curiam) (finding that obligee had burden to seek discovery or enforcement of the reporting
requirement once the court-ordered annual deadline for exchange of tax information had
passed without the information being supplied by the obligor). In the present case, however,
there was no court-ordered specified deadline for reporting that could be enforced by
Petitioner.
              5
               Moreover, it bears pointing out that, while the lower courts determined that
the child support award could not be afforded retroactive effect in the absence of a motion
for modification, they found no issue with altering the amount of the temporary child support
award once evidence of Respondent’s increased income was received. If the lower courts’
reasoning on the retroactive effect of the award was followed, it also would be improper to
adjust the amount of the award absent a filing of a motion for modification. See W. Va.
Code § 48-11-105(a) (“The court may modify a child support order, for the benefit of the
child, when a motion is made that alleges a change in the circumstances of a parent or
another proper person or persons. . . .” (emphasis added)).

                                              5

                                       Reversed and Remanded.

ISSUED: February 21, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                  6

