656 S.E.2d 47
Albright, Justice:
This matter is before the Court on direct appeal of an order entered on
September 27, 2006, by the Family Court of Cabell County (See footnote 1) in which the petition of
Christopher Adkins (hereinafter referred to as “Appellant”) to modify a child support
obligation was denied. Appellant petitioned for modification of child support payments (See footnote 2) on
the basis that he was unable to work because he had been incarcerated since his divorce from
Angela Adkins (See footnote 3) (hereinafter referred to as “Appellee”) was finalized. He had maintained
below that incarceration was the type of change in circumstance which warranted a
reduction in child support. We are also told that Appellant alternatively proposed that the
amount of child support be recalculated on the basis of attributed minimum wage as opposed
to his pre-incarceration wages. (See footnote 4) After careful study of these matters and for the reasons set
forth in our discussion below, we find that incarceration does not relieve a parent of the
obligation to pay child support, but the amount of child support a parent may be obligated
to pay while incarcerated should be calculated on the actual income and assets then available
to that parent. Accordingly, the decision of the family court is affirmed, in part, and
reversed, in part, and this case is remanded for further action consistent with this opinion.
Appellant first filed a petition with the family court seeking modification of
his child support obligation on March 8, 2006, when he lost his job after pleading guilty to
the sexual assault charges. The request for modification was summarily denied by order
entered March 17, 2006. On June 5, 2006, after being sentenced and at the onset of serving
his prison term, Appellant filed a second petition to modify his child support obligation.
Appellant indicated in the second petition that his incarceration was a material change in
circumstances and that he could no longer pay child support. This petition contained a
request to eliminate the obligation or to reduce it to the statutory minimum of fifty dollars
a month (See footnote 7) “so that his mother could help him pay the same” until he was released and able
to return to work. On September 27, 2006, modification again was denied by order of the
family court. It was indicated in this order that no change would be made in the child
support obligation because Appellant was in jail as a result of his own behavior and
commission of a crime is the same as voluntarily quitting a job, making it an unacceptable
reason to modify the obligation. The order did grant Appellant's request to enjoin the
Bureau for Child Support Enforcement (See footnote 8) (hereinafter referred to as “BCSE”) from initiating
proceedings to revoke his driver's license so he would be in a better position to seek
employment after his release.
The parties jointly waived their right to petition for appeal to the circuit court
and elected instead to directly seek review from this Court. Such review was granted by
order entered on February 15, 2007.
In reviewing a final order of a family court judge that is
appealed directly to this Court, we review findings of fact by a
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.
[C]hild support shall remain as currently set because
Respondent is in jail due to his own behavior. It is his fault that
he cannot work. When he committed the crime, it was the same
as voluntarily quitting his job and therefore he cannot reduce his
child support.
Appellant argues that the family court's decision to attribute as income his pre-incarceration
earnings is incorrect because it is impossible for him while incarcerated to earn the same
amount of money he did when the child support obligation was calculated. He additionally
maintains that the family court's conclusion that committing a crime is on equal footing with
voluntarily quitting a job is unreasonable for child support purposes.
While the question of whether a reduction in wages due to incarceration
should be considered a basis for modifying child support obligations is a matter of first
impression for this Court, other jurisdictions have wrestled with the issue and have arrived
at varying conclusions. See Frank J. Wozniak, Loss of Income Due to Incarceration as
Affecting Child Support Obligation, 27 A.L.R.5th 540 (1995). The determinations reached
in these cases may be divided roughly into three different approaches to the problem. As
summarized by the Pennsylvania Supreme Court in Yerkes v. Yerkes, 824 A.2d 1169 (Pa.
2003),
The first approach, dubbed the “no justification” rule, generally
deems criminal incarceration as insufficient to justify
elimination or reduction of an open obligation to pay child
support. The second approach, known as the “complete
justification” rule, generally deems incarceration for criminal
conduct as sufficient to justify elimination or reduction of an
existing child support obligation. Finally, the third approach is
the “one factor” rule, which generally requires the trial court to
simply consider the fact of criminal incarceration along with
other factors in determining whether to eliminate or reduce an
open obligation to pay child support.
Id. at 1172 (internal citations omitted).
More recently, the Supreme Court of Indiana in Lambert v. Lambert, 861
N.E.2d 1176 (Ind. 2007), examined a less substantial number of cases that deal with the
narrower question which is more in the context of the case now pending: Whether for child
support purposes pre-incarceration income should be attributed to a parent serving a jail
sentence. The high court of Indiana found that the conclusions of these courts also fell into
three different classifications. In one line of cases, imprisonment was found to serve as an
absolute or complete justification for modifying or suspending child support. In a second
grouping, the conclusion reached was that pre-incarceration income may be attributed, or
imputed as the practice is termed under Indiana law, to the imprisoned parent because the
criminal act was voluntary and thus caused a voluntary reduction in income. The third
approach results in pre-incarceration income not being subject to attribution because a
person in prison has no earning capacity. In examining these approaches the court in Lambert observed that the attributed income rule unfairly burdens the very poor who lack
the capacity to pay the child support obligation either during the confinement or upon
release, whereas the complete justification rule unfairly benefits the very wealthy who would
have other sources of income to pay child support. The Indiana high court ultimately
concluded for practical reasons that the approach most consistent with Indiana's relevant
statutory and case law and most likely to produce actual support was not to attribute pre-
incarceration income. As stated in the Lambert decision:
[A]doption of the non-imputation approach preserves the
traditional rule imposing support without ignoring the realities
of incarceration. Unlike the absolute justification rule, the non-
imputation approach allows courts to . . . [impose] . . . the
minimal support order as provided by [the child support
guidelines]. This serves the child support system by ensuring
that all non-custodial parents remain responsible _ at least to
some degree _ for the support of their children.
Id. at 1181. We find this reasoning persuasive in light of the compatible goals evidenced in
the relevant statutory and case law of West Virginia.
It is clear from legislative enactment that imprisonment simply may not in and
of itself provide complete justification for modifying or suspending child support payments
in this state. As BCSE aptly points out and Appellant conceded during oral argument, by
enacting West Virginia Code § 25-1-3c (2005) (Supp. 2007), the Legislature has made clear
that child support obligations continue even when a parent is imprisoned. (See footnote 9) By its terms,
West Virginia Code § 25-1-3c unambiguously conveys the intent of the Legislature for
inmates to retain responsibility for outstanding court-ordered obligations, including child
support. As we stated in syllabus point two of Crockett v. Andrews, 153 W.Va. 714, 172
S.E.2d 384 (1970), “[w]here the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation” by the courts. See
also Syl. Pt. 2, Pond Creek Pocahontas Co. v. Alexander, 137 W.Va. 864, 74 S.E.2d 590
(1953) (“Where the meaning of a statute is clear and its provisions are unambiguous, this
Court will not undertake to construe and interpret it, but will apply the statute as its exact
terms require.”). We note that the statute not only underscores the public policy of this state
that parents remain responsible for supporting their children even when incarcerated, but
it also places particular duties on the state's correctional system to assist in accomplishing
this goal. Notwithstanding the clarity of legislative intent regarding an inmate's continued
obligation to honor court-ordered support during periods of incarceration, we find nothing
in its terms or in related statutes which conveys legislative intent to completely disallow
modification of support orders during incarceration. Absent such a bar, modification of
support obligations imposed on incarcerated persons may be sought in the same manner as
any parent. See W.Va. Code §§ 48-11-105, -106, -106a, and § 48-14-107. Moreover, we
find no legislative direction specifically addressing pre-incarceration earnings in the context
of attribution of income for child support purposes.
Attribution of income is a legislative invention. State ex rel. Dept. of Health
and Human Resources, Child Support Enforcement Div. v. Baker, 210 W.Va. 213, 217, 557
S.E.2d 267, 271 (2001). Under West Virginia Code § 48-1-205 (2001) (Repl. Vol. 2004),
income in the form of wages may be attributed under certain circumstances to a parent who
is unemployed, not working full time or working below full-earning capacity. As expressly
provided in subsection (b) of West Virginia Code § 48-1-205:
If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full-earning
capacity; (2) is able to work and is available for full-time work
for which he or she is fitted by prior training or experience; and
(3) is not seeking employment in the manner that a reasonably
prudent person in his or her circumstances would do, then an
alternative method for the court to determine gross income is to
attribute to the person an earning capacity based on his or her
previous income.
In Baker we overturned a lower court's judgment finding that an involuntary
employment termination was the legal equivalent of a voluntary act solely because the
underlying reason for the termination of employment was intentional misconduct. We held
that the voluntary action contemplated by the provisions of the attribution statute requires
some evidence that the child support obligor “effectuated a dismissal from his/her place of
employment for the express purpose of avoiding or affecting child support payments.” Baker at Syl. Pt. 5. We further noted in Baker that “an involuntary termination, including
those that are for cause and which involve intentional conduct, does not come within the
statutory purview of voluntary action required to invoke the specific provisions of West
Virginia Code § . . . [48-1-205 (b)] concerning attribution of income based on an obligor's
prior level of income.” Id.
Aside from a conviction for violating West Virginia Code § 61-5-29 (1999)
(Repl. Vol. 2005) by failing to pay child support, (See footnote 10) generally the mere conviction of a
criminal offense would not of itself demonstrate a voluntary act as contemplated by the
attribution statute. In the case now pending, Appellant was involuntarily terminated when
his employer was made aware that Appellant had pled guilty to sexual assault charges.
Without distinguishing our holding in Baker, the family court found that, for attribution
purposes, committing a crime was equivalent to voluntarily quitting a job. Although the
obligor in Baker was involuntarily terminated for reasons not involving criminal charges,
the logic underlying our decision in Baker is equally vital under the facts of the present case.
Proof of voluntariness remains the same whether or not the action which triggered dismissal
from employment rose to the level of a crime or generated the filing of criminal charges.
Thus for the family court to attribute pre-incarceration income to Appellant, there had to be
some evidence that demonstrated the sexual assault offenses were committed “for the
express purpose of avoiding or affecting child support payments.” Baker at Syl. Pt. 5.
Furthermore, Appellant's circumstances while incarcerated do not appear to meet the
remainder of the statutory qualifiers for application of the attribution of income statute.
While Appellant is incarcerated he would not likely be available for full-time work for
which he is trained and/or experienced, and no incarcerated person, “reasonably prudent”
or not, would be free to seek such employment while serving a criminal sentence. W.Va.
Code § 48-1-205(b). We conclude, therefore, that pre-incarceration income from
employment earnings may not be attributed as income for child support purposes while a
parent is incarcerated because such income fails to meet the qualifications set forth in West
Virginia Code § 48-1-205(b). Being that the lower court erred as a matter of law, we reverse
the ruling and remand the case for further action consistent with this opinion.
Despite our finding that pre-incarceration income from wages may not be
attributed as income for child support purposes, nothing stands in the way of family courts
entering support orders that reflect actual income and resources of an incarcerated parent.
Plainly, parents have an abiding duty to provide support for their dependent children. Courts
remain obligated under the relevant statutory guidelines for child support awards to consider
all sources of income or other property when calculating support payments initially or upon
modification. Nor should our holding be taken to suggest that the provisions of West
Virginia Code § 48-13-302 regarding minimum child support payments are rendered
meaningless when a parent is incarcerated. Accordingly, we further hold that the support
obligation of an incarcerated person should be set in light of that person's actual earnings
while incarcerated and other assets of the incarcerated person practically available to provide
such support.
In advancement of the goal to have child support obligations reflect as
accurately as possible the present earning capacity of parents, the Indiana Supreme Court
endorsed the practice of incorporating a prospective provision in the orders issued cases
involving incarcerated parents in order to automatically return the child support obligation
to the pre-incarceration level upon the release of the affected parent. As explained by the
Indiana court in Lambert, such practice relieves the custodial parent from having to monitor
when the incarcerated parent will be released so that modification may be timely sought, and
shifts the responsibility for seeking modification to the parent who has the knowledge and
information about post-incarceration employment. 861 N.E. at 1182. We appreciate the
convenience of such approach, but as with most simplistic answers it has its weaknesses.
Most notably, a release may occur so far into the future that the pre-incarceration income
level would no longer comport with changes in larger economic realities such as minimum
wage rates. In such instances, the custodial parent would not be relieved of the task of
independently monitoring the income of the obligor parent to ascertain whether it has any
correlation to the prospectively awarded child support rate. A more workable solution
would be for the courts having jurisdiction of the support matter to be advised by the penal
institution of the impending release date of a child support obligor so that a hearing may be
set and notices issued.
We noted earlier that the Legislature has imposed additional duties on the
correctional system regarding child support obligations of inmates. Bearing the designation
of “Financial Responsibility Program for Inmates,” West Virginia Code § 25-1-3c requires
the Division of Corrections to assist each inmate in developing a financial plan for meeting
any child support obligations that exist; directs the warden, within prescribed limits, to
deduct from an inmate's earnings certain court-ordered obligations, including child support;
and charges the Division of Corrections with the responsibility of developing a record-
keeping system which contains complete information about an inmate's wages and child
support payments during the period of incarceration. W.Va. Code § 25-1-3c (b) and (c). (See footnote 11) In furtherance of the legislative initiative to assist incarcerated parents in meeting their child
support obligations, we hold that the penal institution, operating under the authority of the
Division of Corrections, where a person who is subject to court-ordered child support is
incarcerated should assist the inmate in developing a plan designed to meet his or her child
support obligation, and advise the court having jurisdiction of the support matter of the
impending release of such persons from incarceration. At the same time, any modification
order involving a child support obligation of a person known by the court to be incarcerated
may fix a time for reconsideration of the modification upon release of the obligor from
incarceration, and include provision for notice to the obligee, the obligor and, if appropriate,
the Bureau of Child Support Enforcement, the production of post-incarceration earnings of
the obligor and any other information necessary or convenient for such post-incarceration
modification of the support obligation.
In sum, we find that incarceration does not relieve a parent of the obligation
to pay child support. Nonetheless, the amount of child support a parent who is incarcerated
may be ordered to pay must be calculated on the actual income and assets available to the
person during confinement. It is contrary to the provisions of West Virginia Code § 48-1-
205 to attribute pre-incarceration income to an incarcerated parent during the course of
confinement. Once an obligor is released from incarceration, a reassessment of financial
status should occur in a timely fashion. To facilitate this reassessment, penal institutions
should advise the courts of the impending release of inmates who are child support obligors
so that a modification hearing may be docketed and relevant information may be collected.