Richard Edward Crisp v. Mary Jo Crisp ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Richard Edward Crisp, FILED
Respondent Below, Petitioner November 8, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-0122 (Summers County 02-D-08) OF WEST VIRGINIA
Mary Jo Crisp (now Pitzer),
Petitioner, Below, Respondent
MEMORANDUM DECISION
Petitioner Richard Edward Crisp, by counsel Paul S. Detch, appeals the “Order Refusing
Appeal” entered by the Circuit Court of Summers County on December 14, 2012. The circuit
court’s order refused a petition for appeal and a cross-petition for appeal from a June 22, 2012,
order of the Family Court of Summers County. Petitioner argues that the lower courts erred in
concluding that he owes back child support and medical expenses. Respondent Mary Jo Crisp
Pitzer, by counsel Winifred L. Bucy, and Respondent West Virginia Bureau of Child Support
Enforcement (“BCSE”), by counsel Kimberly D. Bentley, respond in support of the lower courts’
orders.
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 is appropriate under Rule 21 of the Rules of
Appellate Procedure.
Mr. Crisp and Ms. Pitzer were divorced by final order entered on May 9, 2002. Pursuant
to that order, custody of their minor child was allocated to Ms. Pitzer, and Mr. Crisp was ordered
to pay $486 per month in child support directly to Ms. Pitzer beginning on June 1, 2002. Mr.
Crisp was also ordered to pay a portion of the child’s medical expenses.
On December 29, 2011, the BCSE filed a motion on Ms. Pitzer’s behalf asserting that
Mr. Crisp owed $72,580.92 in unpaid child support and accrued interest. Ms. Pitzer retained
separate counsel and asserted that in addition to the unpaid child support, Mr. Crisp also owed
her $1,340.92 as his share of the child’s medical expenses. Mr. Crisp filed a petition to determine
arrearage and child support. He argued below, and argues in this appeal, that Ms. Pitzer should
be estopped from asserting any claim for back support or medical expenses. He contends that
shortly after entry of the final divorce order, he and Ms. Pitzer verbally agreed to ignore the child
support order and, instead, Mr. Crisp would pay a portion of the child’s expenses as they arose.
He asserts that he acted in conformity with the verbal agreement for approximately nine years
and has paid thousands of dollars for the child’s needs. No motion to modify the child support
award was filed regarding this alleged agreement. Ms. Pitzer denies that she agreed to forego
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child support and asserts that threats by Mr. Crisp dissuaded her from pursuing back child
support earlier. Ms. Pitzer also denies that Mr. Crisp has paid as much of the child’s expenses
over the years as he now claims to have paid.
The family court refused Mr. Crisp’s request to apply the doctrine of laches to Ms.
Pitzer’s claim. On June 22, 2012, the family court entered a decretal judgment order against Mr.
Crisp for back child support and interest in the amount of $72,580.92, plus $1,340.92 for Mr.
Crisp’s share of the child’s medical expenses and pre-judgment interest thereon.1 When
calculating the back child support, the family court gave Mr. Crisp credit for ten payments that
he had made to Ms. Pitzer, but did not allow credit for amounts that he asserts he spent directly
on the child. In a supplemental order, the family court awarded attorney’s fees to Ms. Pitzer. By
order entered December 14, 2012, the circuit court refused cross-appeals of the family court’s
orders.
Mr. Crisp now appeals to this Court. In the sole Syllabus Point of Carr v. Hancock, 216
W.Va. 474, 607 S.E.2d 803 (2004), we held the following regarding the standard of review:
In reviewing a final order entered by a circuit 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.
First, Mr. Crisp argues that the family court erred by not declaring that Ms. Pitzer and the
BSCE were estopped by laches from collecting the past due support. He notes that Ms. Pitzer’s
claims were not brought in court until nine years after the entry of the final divorce order. We
reject this argument as being contrary to well-established law. When a provision for periodic
payments of child support is made in a divorce decree, these installments become decretal as
they become due. Syl. Pt. 1, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987); Syl. Pt. 5,
Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d. 543 (1993). Furthermore, West Virginia
Code § 38-3-18 provides for a ten year statute of limitations on the collection of judgments. We
held 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.’ Syllabus Point 6, Robinson v. McKinney, 189 W.Va.
459, 432 S.E.2d 543 (1993).” Syl. Pt. 1, Shaffer v. Stanley, 215 W.Va. 58, 593 S.E.2d 629
(2003). All of the support payments at issue in this case were due and owing fewer than ten years
from the date that the BSCE and Ms. Pitzer filed motions to collect. Accordingly, the claims
were brought within the ten-year limitations period and were timely under the law.
Mr. Crisp cites to our per curiam opinion in Runner v. Howell, 205 W.Va. 359, 518
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In addition, the child moved to Mr. Crisp’s home in December of 2011 and, as part of
the current proceedings, Mr. Crisp moved for modification of the support order. The family court
prospectively modified the child support award. However, the instant appeal only concerns
amounts owed up through December 1, 2011, prior to the filing of Mr. Crisp’s request for
modification.
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S.E.2d 363 (1999), to urge us to apply the doctrine of equitable estoppel. In Runner, we found no
basis to apply equitable estoppel. The Runner opinion discussed a prior case, Kimble v. Kimble,
176 W.Va. 45, 341 S.E.2d 420 (1986). In Syllabus Point 3 of Kimble, we allowed a very narrow
exception where, if the welfare of the child has not been adversely affected, a custodial parent
may be barred by equitable estoppel from seeking enforcement of the decretal obligation of a
noncustodial parent who has executed formal consent for the child’s adoption, but the adoption
was not consummated due to the inaction of the custodial parent. Id., 176 W.Va. at 47, 341
S.E.2d at 422. The facts of the case sub judice are in no way similar to the facts of Kimble.
Among other differences, Mr. Crisp has not executed any consent to adoption. We decline Mr.
Crisp’s invitation to broaden the Kimble exception.
Finally, Mr. Crisp argues that it was error for the family court to refuse to credit monies
he spent under what he believed to be a verbal agreement with Ms. Pitzer. Once again, Mr.
Crisp’s argument is not supported by the law. The parties to a child support order do not have the
power to contract away a court-ordered child support award. We held in Syllabus Point 2 of
Kimble, 176 W.Va. at 47, 341 S.E.2d at 422, that “[a] decretal child support obligation may not
be modified, suspended, or terminated by an agreement between the parties to the divorce
decree.” Moreover, Syllabus Point 2 of Goff provides that “[t]he authority of the circuit courts to
modify alimony or child support awards is prospective only and, absent a showing of fraud or
other judicially cognizable circumstance in procuring the original award, a circuit court is
without authority to modify or cancel accrued alimony or child support installments.” Id., 177
W.Va. at 744, 356 S.E.2d at 498. There are no allegations of fraud or other judicially cognizable
circumstance in the procurement of the original award, and Mr. Crisp never filed a motion to
modify his child support obligation based upon the alleged verbal agreement.
Mr. Crisp suggests that the law regarding modification of a child support order should be
disregarded because he was pro se when obtaining the divorce and did not know of the need to
file a motion for modification and obtain a court order. We find that his purported ignorance of
the law is no excuse, particularly considering that the purpose of the award was for the care and
support of a child.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 8, 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
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