Ex-wife owed $57K in child support can't make claim in wrongful death settlement

By Nathan Bass | Apr 17, 2013

CHARLESTON - The state Supreme Court ruled that an ex-wife who was owed back child support on her now adult children does not a have claim on a wrongful death award received as a result of her former husband’s death.

The court delivered the per curiam opinion on April 12. The case was on appeal from the Circuit Court of Randolph County.

The petitioner, Connie Ellis, was represented by Frank P. Bush, Jr. from Elkins and the respondent, Linda Swisher as Administratix of the Estate of Thomas R. Swisher, was represented by David H. Wilmoth, also of Elkins.

Thomas R. Swisher died as a result of a motor vehicle accident in 2010 and the driver who struck Swisher’s motorcycle head-on had an insurance policy that paid $250,000. Swisher had underinsured coverage of $50,000 with his own insurer.

The combined amount was collected by Linda Swisher as the administratrix of Swisher’s estate. Linda Swisher was the wife of Thomas R. Swisher at the time of his death.

When Linda Swisher sought the circuit court’s approval of the wrongful death settlement proceeds and the distribution of the funds, Connie Ellis filed a motion to intervene in the proceeding.

Ellis and Thomas R. Swisher were married and 1979 and divorced in 1982. Their union produced two children.

Ellis was allowed intervenor status and she introduced evidence that Thomas R. Swisher had been paying her $125 a month since 2003 on child support arrearage. The arrearage total at the time of the intervention was approximately $57,000.

The circuit court denied Ellis’ claim, citing Ellis' testimony that she gave the arrearage payments to her children. It also ruled that due to this, she could not establish that she was financially dependent on Thomas R. Swisher.

Ellis appealed the circuit court ruling to the state’s high court.

Ellis argued on appeal that as a former spouse receiving payments against a child support arrearage, she was “per se financially dependent on the decedent for purposes of recovery under our Wrongful Death Act.” The act allows for a proportion of wrongful death damages to be distributed to persons other than the relatives specifically listed in the statute who were financially dependent on the decedent when they died.

“Seeking to circumscribe the trial court’s ruling concerning her lack of financial dependency on the decedent,” the court wrote, “Ms. Ellis maintains that this Court has liberally construed the language of West Virginia Code § 55-7-6(b) to permit recovery of wrongful death benefits based on either the regular receipt of financial assistance or some type of services from the decedent”

The court acknowledged that there had been some rulings in the past that were somewhat analogous to the situation before them including in the Bond case. In the Bond case, the court had relied on the 1965 version of the applicable code which did not include a requirement that “the surviving dependent be legally dependent on the deceased for support.”

“In the intervening years since Bond was decided, subsection 6(b) has been amended multiple times. Under the current statutory enactment, a showing of financial dependency is required for those persons who do not come within the statutory list of beneficiaries designated based on familial relationship.

“Based on the petitioner’s unwavering testimony that she did not keep any of the child support arrearage payments for herself, the trial court had little difficulty concluding that Ms. Ellis was not financially dependent on Mr. Swisher at the time of his death.

“Given this Court’s longstanding recognition that a wrongful death action is for the benefit of the decedent’s beneficiaries rather than his creditors, we would be abandoning over a century of unwavering precedent if we determined that wrongful death damages could be obtained, under the facts of this case, to satisfy an outstanding child support arrearage.

“In this case, the record is clear that the petitioner sought to demonstrate entitlement to the settlement moneys at issue based merely on her receipt of the monthly arrearage payments and nothing more.

“Based on the forgoing, we do not find that the circuit court erred in its decision to deny the petitioner a share of the wrongful death settlement moneys at issue in this case. Accordingly, the decision of the Circuit Court of Randolph County is affirmed. “

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