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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2007 Term ________________ No. 33301

FILED November 20, 2007
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


SANDRA LYNN FOSTER (now LILLY),
Plaintiff Below, Appellant
V. JAMES TYRONE FOSTER,
Defendant Below, Appellee
________________________________________________________________ Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Civil Action No. 81-D-380
REVERSED and REMANDED
________________________________________________________________ Submitted: September 12, 2007
Filed: November 20, 2007


David S. Hart Beckley, West Virginia Attorney for Appellant Heidi L. Talmage Charleston, West Virginia Deputy General Counsel for Bureau for Child Support Enforcement

Darl W. Poling Beckley, West Virginia Attorney for Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT

1.

"In reviewing a final order entered by a circuit court judge upon a

review of, or upon refusal to review, a final order of a family court judge, this Court reviews the findings of fact made by the family court judge under the clearly erroneous standard, and the application of the law to the facts under an abuse of discretion standard. Questions of law are reviewed de novo." Syllabus Point 1, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005); Syllabus Point 1, Carr v. Hancock, 216 W. Va. 474, 475-476, 607 S.E.2d 803, 804805 (2004).

2.

"Ordinarily, a judgment of reversal rendered by an intermediate

appellate court which remands a cause for further proceedings in conformity with the opinion of the court is not final, and, therefore, not appealable to a higher appellate court, so long as judicial action in the lower court is required." Syllabus Point 2, Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990).

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PER CURIAM:

This action is before this Court upon the appeal of Sandra Lynn Lilly [hereinafter "Appellant"] from the Circuit Court of Raleigh County's May 22, 2006, order affirming the Family Court of Raleigh County's December 9, 2005, order granting James Tyrone Foster's [hereinafter "Appellee"] Petition for Recovery of Overpayment of Child Support. The Appellant contends that the circuit court erred in holding that the Appellee's Petition for Recovery of Overpayment of Child Support was not barred by the statute of limitations, when it was filed more than three years after the Appellee became aware of his right to petition for recovery of the alleged overpayment. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon the applicable de novo standard of review and for the reasons expressed below, the May 22, 2006, order of the Circuit Court of Raleigh County is reversed and remanded with directions to dismiss Appellee's Petition for Recovery of Overpayment of Child Support.

I.
Factual and Procedural History


The child support obligation at issue in this matter arose, initially, from a Final Order of Divorce that was entered in the Circuit Court of Raleigh County, West Virginia on
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December 23, 1982, terminating the parties' marriage. Under the terms of the final order, Appellee was ordered to pay child support to Appellant for the benefit of the parties' son in the monthly amount of two hundred fifty dollars ($250.00). This child support obligation continued in effect, subject to modification of the amount of the support obligation, until it was terminated on June 1, 1997, based upon the child's emancipation.

Between the time of the parties' divorce and the time that their child was emancipated in 1997, Appellee failed to make a number of monthly child support payments. Decretal judgments accrued to the Appellant, but no action was taken upon some of those judgments until 1997, when Appellant and the West Virginia Bureau of Child Support Enforcement [hereinafter "BCSE"] sought to collect the unpaid child support in response to Appellee's petition to have his support obligation terminated.1

During the family court proceedings which began in 1997, the BCSE continued to withhold money from Appellee's income toward the collection of unpaid child support. On September 28, 1998, Appellee filed a Memorandum of Law arguing that Appellant was barred from collecting on those decretal judgments which were more than ten (10) years old, due to Appellant's failure to timely pursue such decretal judgments for unpaid child support. After substantial litigation, including two separate circuit court appeals, the circuit court

Appellee filed his Petition for Modification on March 31, 1997, seeking to have his child support obligation terminated based upon his son's emancipation.
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concluded, by an order of April 7, 2000, that attempts to collect more than thirty thousand dollars ($30,000) in child support obligations due and owing prior to April 22, 1987, were barred by the statute of limitations.2 In that order, the circuit court fixed the amount of child support arrearages that were owed by and which could be collected from Appellee at twothousand twenty-seven dollars and sixteen cents ($2,027.16) and granted Appellant a decretal judgment against Appellee for unpaid medical expenses incurred for the benefit of the parties' child in the amount of four thousand four hundred fifteen dollars and seventy-eight cents ($4,415.78), less credit for all payments or money received from the Appellee since January 31, 1999. The circuit court directed the BCSE to compile an accounting to reflect Appellee's payment history between the date and time of entry of the Order Establishing Child Support Arrearages to determine the status of the parties' child support account with the BCSE.

The BCSE conducted an accounting on April 18, 2000, which showed that the Appellee had paid to the Appellant, through income withholdings, more child support than she was legally entitled to collect. A copy of this accounting was mailed to the parties on April 25, 2000. Appellee admitted, during the proceedings below, that he was aware of the overpayment no later than June 2000, and that he had called the BCSE regarding the same. Appellee, however, waited until September 29, 2003, more than three years later, to file a

The Order Establishing Child Support Arrearages was appealed by the BCSE to this Court on August 28, 2000. That petition for appeal was denied on January 25, 2001.
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petition seeking to collect the overpayment.

In response to Appellee's Petition for Recovery of Overpayment of Child Support, Appellant asserted below3 that any recovery was barred by the statute of limitations because Appellee had waited for more than three years after his right to collect the overpayment had accrued before filing his petition. By order of April 8, 2005, the Raleigh County Family Court held that Appellee's petition was time barred. On May 9, 2005, Appellee appealed this order to the Circuit Court of Raleigh County.

By order of July 27, 2005, the Circuit Court of Raleigh County reversed the family court ruling. The circuit court reasoned that the filing of the Petition for Modification and the relief granted by order of April 7, 2000, was sufficient to toll the running of the statute of limitations against Appellee. The circuit court found that the Appellee's Petition for Recovery of Overpayment of Child Support, filed in September 2003, related back to the Appellee's original Petition for Modification filed in March of 1997, and was an effort to secure the relief that was granted by the order of April 7, 2000. The circuit court also held that the April 7, 2000, order directed that an audit be conducted, which was completed, but that no order was entered to accept or reject the result of the audit.

Appellant filed a Memorandum of Law in Support of Motion to Dismiss Appellee's Petition for Recovery of Overpayment of Child Support on February 9, 2005.
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Based on its reasoning, the circuit court concluded that the statute of limitations that might otherwise apply to Appellee's petition was indefinitely tolled until he filed the Petition for Recovery of Overpayment of Child Support in September 2003, and that Appellee had done that which was necessary to assert his claim for the repayment of an arrearage. The circuit court remanded the matter for further proceedings to review and evaluate the audit, to determine whether Appellee had overpaid child support, and if so, to calculate the arrearage and enter such orders as were necessary.

On remand, the Family Court of Raleigh County concluded, by order of December 9, 2005, that Appellee had overpaid child support in the amount of three thousand four hundred sixty-six dollars and sixty-five cents ($3,466.65), and entered judgment against Appellant and the BCSE in that amount. The family court went on to hold that Appellee could collect this payment from either Appellant or from the BCSE, but that no such collection could be made until the parties had an opportunity to exhaust their opportunities for appeal. The family court also denied Appellee's request for attorney's fees and litigation expenses and his request that Appellant be required to post an appeal bond.

On January 6, 2006, Appellee filed a second Petition for Appeal to the circuit court, alleging that the family court erred by failing to grant his request for attorney fees, and by failing to award him pre-judgment interest on the overpayment. Thereafter, on January 9, 2006, Appellant also filed her Petition for Appeal to the circuit court, again alleging that
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the Appellee's Petition for Recovery of Overpayment of Child Support was barred by the statute of limitations, and alleging that the Appellee should be required to collect any alleged overpayment from the BCSE and not from her. By order of May 22, 2006, the circuit court affirmed the family court's order of December 9, 2005, essentially in its entirety, on the issues of attorneys fees, statute of limitations, and collection of overpayment. In that same order, the circuit court remanded the issue of calculation of interest, requesting that a calculation of interest be included. On June 22, 2006, the BCSE determined that the interest on the principal amount of three thousand four hundred sixty-six dollars and sixty-five cents ($3,466.65) was one hundred sixty-nine dollars and four cents ($169.04).

Appellant now appeals the circuit court's May 22, 2006, order which affirmed the family court order entered on December 9, 2005, following a remand by the circuit court on July 27, 2005. The BCSE also joins Appellant in this appeal.

II.
Standard of Review
The issue before this Court is whether Appellee's Petition for Recovery of Overpayment of Child Support is barred by the statute of limitations. In syllabus point one of Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005), this Court explained that "[i]n 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
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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."; See also Syl. Pt. 1, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Because the issue before this Court is purely a legal question, we review the rulings of the circuit court de novo.

III.
Discussion
The Appellant presents one assignment of error, maintaining that the circuit court erred in holding that the Appellee's Petition for Recovery of Overpayment of Child Support, which was filed more than three years after the right to bring the petition accrued and more than three years after the Appellee became aware of his right to petition for recovery of the alleged overpayment, was not barred by the statute of limitations set forth in West Virginia Code

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