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 posthigh 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 twentyone 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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