STATE OF WEST VIRGINIA
 

IN THE SUPREME COURT OF APPEALS
 

FILED Tabitha P.,
 

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. 

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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 

anychanges in information “MUST immediately” be reported to the familycourt. (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. 

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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.” 

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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 longstanding 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 temporaryorder 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 timelyfinancial 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 

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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)). 

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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 

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