                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jeffrey Wayne Burns,
Respondent Below, Petitioner                                                       FILED
                                                                               January 5, 2018
vs) No. 16-1141 (Pocahontas County 96-D-60)                                    EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Elisa J. Burns (now Weber),
Petitioner Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Jeffrey Wayne Burns, by counsel Rebecca A. Judy, appeals the November 7,
2016, order of the Circuit Court of Pocahontas County, refusing his petition for appeal of a prior
family court order that granted respondent a decretal judgment against petitioner in the amount
of $10,200, plus interest from February of 2016. This judgment represents the total amount of
funds that petitioner failed to deposit over seventeen years into a post-high school educational
fund for the couple’s child, who was eighteen months old at the time of the parties’ divorce in
1996. Respondent Elisa J. Burns (now Weber), pro se, filed a response in support of the circuit
court’s order.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                              Factual and Procedural Background

        The parties were married in 1994 and divorced by order entered on October 2, 1996.
There was one child born of the marriage. Under the divorce order, in relevant part, the family
court granted respondent primary custody of the child; the parties agreed to waive the application
of the child support formula, resulting in the family court ordering petitioner to pay $75 per week
in child support; and petitioner agreed to pay $600 annually into a trust fund to be used for the
child’s post-high school education expenses. Based on the parties’ agreement, the family court
ordered petitioner to begin the annual payments to the fund in January of 1997. The divorce
order is silent as to whether petitioner is liable for interest on the principal sum to be deposited.

       The child reached the age of eighteen years in March of 2013, and thereafter graduated
from high school. The child did not pursue post-high school education until 2015, when he
enrolled in vocational school and incurred approximately $25,000 in tuition expenses. It is
undisputed that petitioner made none of the required annual payments into the fund for the

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child’s post-high school education expenses. Based on seventeen annual deposits from 1997 to
2013, petitioner should have deposited a principal sum of $10,200 into the fund. In February of
2016, respondent sent petitioner a letter demanding payment of the funds that he should have
deposited. Petitioner did not comply, and, as a result, respondent filed a contempt petition with
the Family Court of Pocahontas County.

        The family court conducted a hearing on the contempt petition in July of 2016. The
family court found that, since the entry of the divorce order in 1996, the parties had been before
either the family court or the circuit court eight times regarding issues unrelated to the post-high
school education fund, and petitioner had never challenged his agreement to pay into the fund.

        In his opposition to the contempt petition, petitioner argued that West Virginia Code §
48-11-103(c) mandates that the divorce order’s trust fund provision be vacated. West Virginia
Code § 48-11-103 governs when a court may award child support beyond the age of eighteen
years. Subsection (c) provides as follows:

       (c) The reenactment of this section during the regular session of the Legislature in
       the year one thousand nine hundred ninety-four shall not, by operation of law,
       have any effect upon or vacate any order or portion thereof entered under the prior
       enactment of this section which awarded educational and related expenses for an
       adult child accepted or enrolled and making satisfactory progress in an
       educational program at a certified or accredited college. Any such order or portion
       thereof shall continue in full force and effect until the court, upon motion of a
       party, modifies or vacates the order upon a finding that:

       (1) The facts and circumstances which supported the entry of the original order
       have changed, in which case the order may be modified;

       (2) The facts and circumstances which supported the entry of the original order no
       longer exist because the child has not been accepted or is not enrolled in and
       making satisfactory progress in an educational program at a certified or accredited
       college or the parent ordered to pay such educational and related expenses is no
       longer able to make such payments, in which case the order shall be vacated;

       (3) The child, at the time the order was entered, was under the age of sixteen
       years, in which case the order shall be vacated;

       (4) The amount ordered to be paid was determined by an application of child
       support guidelines in accordance with the provisions of section one hundred one,
       article thirteen, et seq., of this chapter, or legislative rules promulgated
       thereunder, in which case the order may be modified or vacated; or

       (5) The order was entered after the fourteenth day of March, one thousand nine
       hundred ninety-four, in which case the order shall be vacated.




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Petitioner argued that the trust fund provision in the 1996 divorce order should be vacated for the
following three reasons: First, under subsections (c)(1) and (2), circumstances have changed;
second, under subsection (c)(3), the child was under the age of 16 years when the divorce order
was entered; and third, under subsection (c)(5), the divorce order was entered after March 14,
1994.

       The family court rejected petitioner’s argument regarding a change in circumstances
because petitioner had never filed a petition to modify his support obligation, and the family
court stated that it lacked jurisdiction to retroactively modify it. With respect to petitioner’s
remaining two challenges to the trust fund provision, the family court ruled that the trust fund
provision in the 1996 divorce order was not entered pursuant to the prior law, which was enacted
in 1993,1 which permitted an award of child support for post-high school education expenses.
The family court went on to cite Shortt v. Damron, 220 W. Va. 710, 649 S.E.2d 283 (2007), in
which this Court held that an order requiring a parent to pay for his son’s college expenses, based
on the parties’ agreement, was valid because the order was entered six years prior to the 1994
enactment of West Virginia Code § 48-11-103(c). Because the trust fund provision in the present
case was not entered pursuant to the authority of the prior statute, but, rather, was entered
according to the agreement of the parties, the family court ruled that the trust fund provision was
not invalidated by West Virginia Code § 48-11-103(c). Additionally, the family court cited
language in Shortt that “[t]here is nothing in the law, however, which precludes a parent from
contracting to support his or her children after they reach the age of legal capacity.” Id. at 713,
649 S.E.2d at 286. Accordingly, the family court concluded that West Virginia Code § 48-11­
103(c) did not apply to the trust fund provision in the parties’ divorce order.

        The family court then addressed the remedy sought by respondent, which was the
principal sum of $10,200, plus interest from the date of each installment. Because the divorce
order was silent with respect to petitioner’s liability for interest, and the child did not seek post-
high school education until two years after graduation, the family court ruled that respondent was
not entitled to interest until the time she made a demand for payment, which was February of
2016. Accordingly, by order entered on July 28, 2016, the family court granted respondent a
decretal judgment against petitioner in the amount of $10,200, plus interest thereon from
February 1, 2016, to date.

        Petitioner appealed to the Circuit Court of Pocahontas County, arguing that (1) the trust
fund provision must be vacated under West Virginia Code § 48-11-103(c)(5) because the divorce
order was entered after March 14, 1994; (2) the trust fund provision must be vacated under West
Virginia Code § 48-11-103(c)(3) because the child was less than sixteen years old when the
divorce order was entered; and (3) the family court erred by awarding a decretal judgment based
on petitioner’s voluntary agreement. Respondent did not file a response to the petition for appeal.
By order entered on November 7, 2016, the circuit court made findings of fact and conclusions
of law that echoed those of the family court and refused petitioner’s petition for appeal.
Petitioner now appeals to this Court.



       1
         The prior version of the statute that permitted child support for post-high school
education was codified at West Virginia Code § 48-2-15d.
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                                            Discussion

       We apply the following standard of review to the circuit court’s order:

       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. W.Va.
       Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 1, In Re S.H., 237 W. Va. 626, 789 S.E.2d 163 (2016).

        Petitioner raises three assignments of error on appeal. In his first assignment of error, he
challenges the circuit court’s finding that he had not previously moved the family court to
modify or vacate the divorce order. Petitioner contends the finding is erroneous because he made
such a motion verbally at the beginning of the July 26, 2016, family court hearing on
respondent’s contempt petition when the family law judge inquired if the parties had any
“preliminary” motions. In its order refusing petitioner’s appeal, the circuit court made the
following finding, among many others: “Procedurally, [petitioner] has never filed a petition to
modify/vacate the Family Court Order of October 2, 1996, ordering the payment of $600.00
yearly into the trust fund for post-high school expenses.”

        We find no error. First, the circuit court’s finding is undisputedly true; petitioner had
never filed such a motion. But even if we were to consider petitioner’s verbal motion at the start
of the contempt hearing, we still find no error because the circuit court’s ultimate refusal of
petitioner’s appeal did not rest on this one finding. From our review, it seems clear that the point
of the finding was to say that, over the course of almost twenty years since the parties’ divorce,
petitioner never formally challenged the requirement that he contribute to the fund, despite the
fact that the parties were before the family court and circuit court eight times for other reasons,
and that each year for seventeen years, he failed to make the annual payment he had agreed to
make. Petitioner’s verbal motion made only after respondent filed a contempt petition against
him for failing to make any of the payments, and made only at the very start of the hearing on his
obligation to pay, is not, under the facts of this case, sufficient to qualify as a “petition to
modify/vacate the Family Court Order of October 2, 1996, ordering the payment of $600.00
yearly into the trust fund for post-high school expenses.” Accordingly, petitioner’s first
assignment of error is without merit.

       In his second assignment of error, petitioner argues that West Virginia Code § 48-11­
103(c)(3) and (5) mandate that the trust fund provision in the divorce order be vacated.
Relatedly, he argues in his third assignment of error that Shortt is not applicable to the facts of
this case. We address these arguments together. Initially, we note that petitioner does not
genuinely challenge the voluntariness of his agreement at the time of the divorce to help pay for




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his son’s post-high school education;2 rather, he now seeks the benefit of a statute he contends
negates his obligation. For the following reasons, we find no error in the family court’s issuance
of a decretal judgment against petitioner in favor of respondent.

       West Virginia Code § 48-11-103(c)(3) and (5) (1994) provide as follows:

       (c) The reenactment of this section during the regular session of the Legislature in
       the year one thousand nine hundred ninety-four shall not, by operation of law,
       have any effect upon or vacate any order or portion thereof entered under the prior
       enactment of this section which awarded educational and related expenses for an
       adult child accepted or enrolled and making satisfactory progress in an
       educational program at a certified or accredited college. Any such order or
       portion thereof shall continue in full force and effect until the court, upon motion
       of a party, modifies or vacates the order upon a finding that:

       ***

       (3) The child, at the time the order was entered, was under the age of sixteen
       years, in which case the order shall be vacated;

       ***

       (5) The order was entered after the fourteenth day of March, one thousand nine
       hundred ninety-four, in which case the order shall be vacated.

(Emphasis added).

       Even petitioner acknowledges that subsection (c), as quoted above, refers only to orders
that were entered under the prior enactment of the statute, that is, the 1993 version. The divorce
order at issue in the present case was issued in 1996; thus, it was issued under the current
enactment of the statute. Accordingly, we do not find that subsections (c)(3) and (5) control the
outcome of this case. Instead, we look to West Virginia Code § 48-11-103(a), which provides as
follows:

       An order for child support shall 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, guardian or custodian 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.

       2
         In his brief, petitioner states that “there is no evidence of a voluntary agreement except
for the wording ‘[petitioner] agrees to pay a sum of $600 per year [into the fund.]’ As a pro se
defendant in a divorce action, Mr. Burns did not believe he was agreeing to this but thought he
had no option.” Other than this passing statement, petitioner identifies no facts in the record that
would indicate his agreement was involuntary.
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        Petitioner contends that he should prevail in negating the trust fund provision because his
child was over twenty years old when he enrolled in post-high school education and was twenty-
one years old when respondent demanded the money. However, under the plain language of
West Virginia Code § 48-11-103(a), neither of these facts are dispositive. The statute allows for
a child support order to extend beyond the child reaching eighteen years old, but states that
“payments may not extend past the date that the child reaches age of twenty.” In the present case,
the only reason petitioner was faced with making a payment after his son reached age twenty was
that he undisputedly failed to make a single annual payment for seventeen years. Stated another
way, the provision in his divorce decree that he now seeks to negate required that he make an
annual payment of $600 from the time his son was approximately eighteen months old until he
was eighteen years old; under the divorce order, the family court did not require that the annual
payments extend past the child’s twentieth birthday, as prohibited by West Virginia Code § 48­
11-103(a). Likewise, the fact that respondent waited until the child enrolled in post-high school
education to demand that petitioner comply with the divorce order is of no moment to our
analysis.

        Furthermore, our analysis does not focus solely on the applicable statutes. Indeed, when
the parties divorced in 1996, part of their agreement was that petitioner would make an annual
$600 payment for his son’s post-high school education for seventeen years; it was not something
the family court ordered on its own against the wishes of petitioner. This point is important
because this Court has recognized that, “[t]here is nothing in the law . . . which precludes a
parent from contracting to support his or her children after they reach the age of legal capacity.”
Shortt, 220 W. Va. at 713, 649 S.E.2d at 286. Petitioner urges this Court to disregard Shortt
because it involved a divorce order entered in 1987, under the prior enactment of West Virginia
Code § 48-11-103. However, contrary to petitioner’s implication, the current statute does not
expressly prohibit parties from contracting for the payment of post-high school education
expenses, as petitioner and respondent did in their 1996 divorce. Accordingly, we do not find
Shortt to be inapplicable to the present case, as petitioner argues.

        In conclusion, the undisputed fact is that petitioner agreed to make seventeen annual
payments of $600 each for the purpose of assisting with his son’s post-high school education
expenses. He did not make a single payment. When respondent demanded that he pay in 2016,
petitioner – for the first time since 1996 – claimed that the required payments violated the
statute. We reject his arguments. Neither the law nor equity demands that we negate petitioner’s
agreement or the provision of the parties’ divorce order derived from that agreement. Therefore,
we find no error in the granting of a decretal judgment in favor of respondent against petitioner
in the principal sum of $10,200, plus interest thereon from February 1, 2016, to date.

       For the foregoing reasons, we affirm the Circuit Court of Pocahontas County’s “Order
Refusing Petition for Appeal” entered on November 7, 2016.


                                                                                        Affirmed.

ISSUED: January 5, 2018



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CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis




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