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Supcoe v. Shearer
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998
No. 24995
SUSAN SHEARER SUPCOE, PLAINTIFF
BELOW, Appellee

v.
DAN L. SHEARER, DEFENDANT BELOW,
Appellant

Appeal from the Circuit Court of Monongalia County
Honorable Russell M. Clawges, Jr., Judge
Civil Action No. 92-C-20

AFFIRMED IN PART, REVERSED IN PART, REMANDED

Submitted: September 23, 1998
Filed: December 14, 1998

Michael J. Del Guidice, Esq.  Edmund J. Rollo, Esq.
Ciccarello, Del Guidice & LaFon                      Morgantown, West Virginia
Charleston, West Virginia                                 Attorney for Appellant
Attorneys for Appellee

The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS and JUSTICE STARCHER deeming themselves disqualified, did not participate in this case.
Special Judges FRED RISOVICH II and DARRELL PRATT sitting by special assignment.    
JUSTICE MCGRAW did not participate.

SYLLABUS BY THE COURT
1.
"In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995).

2.
" 'This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, State ex rel. Martin v.

Spry, 196 W. Va. 508, 474 S.E.2d 175 (1996).

3.
"The duty of a parent to support a child is a basic duty owed by the parent to the child, and a parent cannot waive or contract away the child's right to support." Syl. Pt. 3, Wyatt v. Wyatt, 185 W. Va. 472, 408 S.E.2d 51 (1991).

4.
"Mere delay will not bar relief in equity on the ground of laches. 'Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right.' Syllabus point 2, Bank of Marlinton v. McLaughlin, 123 W. Va. 608, 17 S.E.2d 213 (1941)." Syl. Pt. 1, State ex rel. Smith v. Abbot, 187 W. Va. 261, 418 S.E.2d 575 (1992).


Per Curiam:
        This is an appeal by Dan L. Shearer (hereinafter "Mr. Shearer" or "Appellant") from a child support order of the Circuit Court of Monongalia County obligating Mr. Shearer to pay his former wife, Appellee Susan Shearer Supcoe (hereinafter "Mrs. Supcoe" or "Appellee"), retroactive child support of $8970.41 and prospective monthly support of $356.10. Mr. Shearer contends that retroactive child support is patently unfair based upon Mrs. Supcoe's failure to request court-ordered child support in a timely fashion. We affirm in part, reverse in part, and remand.
I. Facts
        Mr. Shearer and Mrs. Supcoe were divorced in 1992, and custody of their child was originally granted to Mr. Shearer. By opinion filed in July 1994, in Shearer v. Shearer, 191 W. Va. 734, 448 S.E.2d 165 (1994), this Court reversed the circuit court decision and ordered that custody be granted to Mrs. Supcoe. Although Mr. Shearer voluntarily provided custody to Mrs. Supcoe subsequent to this Court's decision, a circuit court order reflecting the alteration in custody was not immediately entered, and no child support order was entered. Mr. Shearer maintained regular visitation with the child, but he did not make formal child support payments. He subsequently fathered a child by a different woman, and is voluntarily, without court order, paying $600 per month in support of that child.
        In February 1996, Mr. Shearer and Mrs. Supcoe allegedly agreed that Mr. Shearer would pay $200 per month in child support for their child, and Mr. Shearer has made payments pursuant to that agreement. In January 1997, Mrs. Supcoe requested court-ordered child support during a hearing before a family law master. On February 4, 1997, the lower court entered an order reflecting this Court's July 1994 decision regarding change of custody. The family law master filed findings of fact and conclusions of law on April 25, 1997, recommending that Mr. Shearer pay $376.53 per month in child support prospectively and concluding that Mr. Shearer owed $9283.70 in back support dating from the August 1, 1994, change of custody from Mr. Shearer to Mrs. Supcoe.
        The lower court, by order dated August 1, 1997, reduced the family law master's recommendation of support from $376.53 to $356.10 monthly and recalculated the arrearage at $8970.41. Mr. Shearer appeals that determination, and Mrs. Supcoe has also filed cross assignments of error. Mr. Shearer first maintains that the lower court erred by ordering him to pay child support from August 1, 1994, the date of the de facto change of custody, rather than January 29, 1997, the date upon which Mrs. Supcoe first requested court- ordered child support. Second, Mr. Shearer contends that the lower court erred by ordering
that no part of the $600 voluntarily paid to another child should be an offset to the amount owed to Mrs. Supcoe. Third, Mr. Shearer argues that the lower court erred by finding that he knew of his obligation to support his child and should therefore be required to pay the retroactive support. Fourth, Mr. Shearer alleges that the lower court erred by finding that Mrs. Supcoe's request was not barred by laches.
        Mrs. Supcoe assigns the following cross-assignments of error: The lower court erred by failing to award interest on the arrearage; and the lower court erred by failing to utilize the child support guidelines which became effective on July 1, 1997.
II. Standard of Review         Syllabus point one of Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995), instructs as follows:
            In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.
" 'This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, State ex rel. Martin v. Spry, 196
W. Va. 508, 474 S.E.2d 175 (1996).
III. Retroactivity
        West Virginia Code

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