James W. McNeely, Esquire
R. Brandon Johnson, Esquire
Greenville, West Virginia Stroebel & Johnson
Attorney for Appellant Lewisburg, West Virginia
Susan H. Hewman, Esquire
Richard H. Lorensen, Esquire Lewisburg, West Virginia
Lewisburg, West Virginia Attorneys for Appellee
Guardian ad Litem
JUSTICE SCOTT delivered the Opinion of the Court.
The provisions of West Virginia Code § 48A-4-17 (1999) are clear in
their intent. Failure to comply with the ten-day period for filing exceptions to a
recommended order of a family law master, barring a timely filing of and approval of one
ten-day extension period, is fatal with regard to preserving those exceptions for appeal.
In reviewing the findings of fact and conclusions of law of a circuit
court supporting a civil contempt order, we apply a three-pronged standard of review.
We review the contempt order 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, Carter v. Carter,
196 W.Va. 239, 470 S.E.2d 193 (1996).
3. Where the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner [sic] so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil. Syl. Pt. 2, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).
4. Although Rules 11, 16, and 37 of the West Virginia Rules of Civil
Procedure do not formally require any particular procedure, before issuing a sanction, a
court must ensure it has an adequate foundation either pursuant to the rules or by virtue of
its inherent powers to exercise its authority. The Due Process Clause of Section 10 of
Article III of the West Virginia Constitution requires that there exist a relationship
between the sanctioned party's misconduct and the matters in controversy such that the
transgression threatens to interfere with the rightful decision of the case. Thus, a court
must ensure any sanction imposed is fashioned to address the identified harm caused by
the party's misconduct. Syl. Pt. 1, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827
5. In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case. Syl. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).
6. Before imposing sanctions for filing frivolous pleadings and advancing
frivolous arguments, a trial court must give the alleged contemnor notice and an
opportunity to be heard on the questions of frivolousness, appropriate sanctions, and, if an
award of attorney's fees is to be made, on the necessity and reasonableness of such fees.
At the conclusion of such hearing, the trial court must make sufficient findings of fact and
conclusions of law to enable the appellate court to conduct a meaningful review.
7. A modification of child custody, without notice and hearing, cannot be
ordered to result concurrently with a prospective instance of forbidden conduct.
This consolidated case presents issues surrounding three orders entered by
the Circuit Court of Monroe County See footnote 1
in connection with Appellant Dorothy Kyle Czaja's
(now Wright's) attempt to modify the original grant of unsupervised visitation to
Appellee Mark Czaja. In case number 27316, Appellant seeks a reversal of an order
entered by Judge Irons on March 3, 1999, through which Appellant and her counsel were
found to be in contempt of court for failure to obey the lower court's orders concerning
visitation. Through case number 27317, Appellant seeks a reversal of an order entered by
Judge Irons on February 9, 1999, denying Appellant's exceptions to the November 23,
1998, Recommended Order of the family law master concerning Appellant's motion to
restrict Appellee to supervised visitation. In the third case, number 27318, Appellant
seeks a reversal of an order entered by Judge Kirkpatrick on June 17, 1999, through
which the circuit court found Appellant in contempt for failure to comply with court-
ordered visitation; denied Appellant's Rule 59(a) New Trial motion pertaining to the
March 3, 1999, ruling of Judge Irons; and denied Appellant's Rule 60(b)(1) and (b) (6)
Motions for Relief from Judgment as to the visitation directives set forth in the February
9, 1999, order. After considering the arguments raised in conjunction with the submitted
record in this matter, we affirm, in part, and reverse, in part, and remand for further
proceedings consistent with this opinion.
Beginning with the filing of Appellant's petition to modify visitation
See footnote 3
April 2, 1997, the issue of Appellee's entitlement to his original grant of unsupervised
visitation rights has been the subject of continuous litigation. When the circuit court
denied her motion to modify visitation rights, See footnote 4
Appellant refused to permit Appellee to
exercise his visitation rights scheduled for August 3, 1997, to August 24, 1997. Appellee
filed a motion for contempt, and during the course of the September 2, 1997, contempt
hearing, Appellant alleged, for the first time,See footnote 5
that Appellee had improperly touched his
seven-year-old daughter in June of 1997.See footnote 6
Based on this allegation, Judge Irons referred
the matter to Child Protective Services (CPS) for an investigation
See footnote 7
and the court
directed, by order dated November 6, 1997, that Appellee would have unsupervised
daytime visitation pending the outcome of the CPS investigation. On January 20, 1998,
CPS submitted a one-paragraph report to Judge Irons, in which caseworker Stephanie
Lester states that she was unable to substantiate abuse to the children by Appellee. Ms.
Lester did, however, recommend supervised visitation; this recommendation was based
solely on the risk of maltreatment due to Appellee's sexual relationship with a minor
student in 1986. See supra note 3.
Following the issuance of the CPS report, Appellant again refused to permit
Appellee to exercise his visitation rights with his children in February 1998.See footnote 8
dated February 11, 1998, Judge Irons referred these visitation issues to Family Law
Master Wiley. Following four days of hearings in October 1998, FLM Wiley issued his
Recommended Order on November 23, 1998, in which he recommended that Appellant's
motion for supervised visitation be denied based on his conclusion that no credible
evidence of sexual abuse had been established. He further recommended that Appellee be
permitted to have a certain amount of makeup visitation to offset the visitation Appellant
had denied him. See footnote 9
We observe that during the pendency of the referral to the FLM and the
issuance of a decision, Appellee had no visitation with his children. See footnote 10
Not until an order
was entered on December 21, 1998, directing supervised visitation See footnote 11
did Appellee gain the
right to see his children following the circuit court's suspension of unsupervised visitation
in February 1998.See footnote 12
The circuit court, by order entered February 9, 1999, denied See footnote 13 13 Appellant's exceptions to the FLM's recommendations and directed that Appellee's previous grant of unsupervised visitation should be restored. See footnote 14 14 Notwithstanding the court's order, Appellant refused to deliver the children at the designated place on three successive Friday evenings--February 12, 19, and 26, 1999--which forced Appellee to file another contempt motion. See footnote 15 15 At the March 1, 1999, hearing on Appellee's motion, the lower court found both Appellant and her counsel to be in contempt of court orders concerning visitation and required Appellant's counsel to pay opposing counsel's fees .See footnote 16 16
On June 14, 1999, Judge Kirkpatrick See footnote 17 17 heard argument in conjunction with Appellant's post-ruling motions, through which she sought a reversal of the March 3, 1999, contempt order and relief from the visitation requirements set forth in the February 9, 1999, order. After considering the evidence presented, the circuit court denied Appellant's Rule 59 and Rule 60 motions and granted Appellee's March 8, 1999, separate motion for contempt for Appellant's failure to comply with the visitation directives set out in multiple orders. See footnote 18 18 As part of its June 17, 1999, order reflecting these rulings, the lower court outlined a mechanism which expressly authorizes the sheriff, following a contemplated court hearing, to take physical custody of the parties' children for the purpose of transporting same to Appellee in the event that Appellant prospectively decides to deny visitation rights to Appellee.
It is from these orders of February 9, 1999, March 3, 1999, and June 17,
1999, that Appellant brings this consolidated appeal. Each appeal will be separately
discussed in chronological fashion with reference to the entry date of the respective order
from which the appeal is taken.
The statutory provision which governs the filing of exceptions to decisions
of family law masters is West Virginia Code § 48A-4-17 (1999). That section provides
that: Failure to timely file the petition [of exceptions to the FLM's recommended order]
shall constitute a waiver of exceptions, unless the petitioner, prior to the expiration of the
ten-day period, moves for and is granted an extension of time from the circuit court.See footnote 19
Id. (emphasis supplied). In its February 9, 1999, order, the circuit court ruled that:
The recommended decision was served on the Plaintiff by mail on November 23, and the Plaintiff had until December 7, 1998 to file exceptions to this decision. Plaintiff subsequently filed a notice of extension of time to file exceptions, thereby extending the time for the filing of exceptions to December 17, 1998. Plaintiff did not actually file her exceptions until December 28, 1998.
Appellant maintains that the lower court was in error with regard to its
ruling that her exceptions were untimely filed. She contends that the original date from
which the ten-day period for filing extensions typically would be calculated--November
23, 1998, in this case--was not the proper date. Arguing that the FLM erred in not
initially sending a copy of his recommended order to the guardian ad litem, Appellant
notes that the FLM's decision was re-served on the parties and the guardian ad litem on
December 3, 1998, by notice of that date with an indication that December 17, 1998, was
the deadline for filing exceptions. Since Appellant filed and received a ten-day extension
for filing her exceptions, she contends that her pleading was not due to be filed until
December 27, ten days after the December 17, 1998, deadline contained in the second
notice issued by the FLM. We find several flaws in Appellant's self-serving deadline
First and foremost, both of the named parties to this action were served with
the notice and recommended order on November 23, 1998. While the original notice was
not made a part of the record, there are numerous other pleadings submitted which
indicate that the filing date for the exceptions pursuant to the first notice was December 7,
1998.See footnote 20
On the date those exceptions were due--December 7, 1998-- Appellant filed
notice of her request for a ten-day extension, as permitted under West Virginia Code
§ 48A-4-17 and Rule 23 of the Rules of Practice and Procedure for Family Law. In the
December 7, 1998, order granting Appellant's ten-day extension, the lower court
expressly deletedSee footnote 21
language which had specified that Appellant had until December, 27,
1998" to file her exceptions. Given the circuit court's actions in striking the date she
supplied for filing exceptions, we reject Appellant's argument that she had until
December 27, 1998, to file those exceptions. The circuit court clearly granted Appellant
one additional ten-day period to file her exceptions and that period commenced on
December 7, 1998, and ended on December 17, 1998.See footnote 22
The oversight on the part of the FLM in sending a copy of his
recommended order to the guardian ad litem simply cannot be used offensively by
AppellantSee footnote 23
to expand the statutorily-provided period for filing her exceptions. Moreover,
since both the named parties were timely and properly served with both notice and the
recommended decision on November 23, 1998, there is no reason for suggesting that
Appellant should be permitted to benefit by a later deadline that should have attached
only to the guardian ad litem in the event he would have desired to file exceptions to the
recommended decision of the FLM.See footnote 24
Upon our review of the record, this Court is left
with a palpable sense that Appellant's counsel was trying to buy time in any fashion
possible for filing Appellant's exceptions.See footnote 25
The provisions of West Virginia Code § 48A-4-17 are clear in their intent.
Failure to comply with the ten-day period for filing exceptions to a recommended order of
a family law master, barring a timely filing of and approval of one ten-day extension
period, is fatal with regard to preserving those exceptions for appeal. See
W.Va.R.Prac.&Proc.Fam.Law 23. The record in this case demonstrates that the lower
court, in striking Appellant's attempt to further lengthen her exception-filing period from
the language of the December 7, 1998, order, clearly announced its position that the
extension granted was not, as Appellant advocates, until December 27, 1998, but was
instead, until December 17, 1998. Since Appellant admits that she did not file her
exceptions until December 28, 1998, her exceptions were indisputably filed outside the
statutorily-established time frame for preserving those exceptions for appeal. See W.Va.
Code § 48A-4-17.
Just as we are unpersuaded that Appellant timely filed her exceptions, we
are similarly unconvinced by Appellant's argument that the lower court's consideration of
Appellant's exceptions amounted to a waiver of the statutory proscription set forth in
West Virginia Code § 48A-4-17. The lower court made clear in its February 9, 1999,
[a]though the Plaintiff's [Appellant's] exceptions are untimely and are not entitled to any consideration by this Court, because the Plaintiff is seeking supervised visitation, under a theory that the children would [be] at risk, if the Defendant [Appellee] were allowed to have unsupervised visitation, the Court has proceeded to review the exceptions, out of an abundance of precaution, in order to determine if there is any merit to the exceptions.
The lower court could not, simply by virtue of its decision to review Appellant's exceptions out of an abundance of precaution, have abrogated the statutory language which mandates in nondiscretionary terms that a [f]ailure to timely file the petition shall constitute a waiver of exceptions. W.Va. Code § 48A-4-17 (emphasis supplied). Judge Irons made clear that his decision to review the exceptions was prompted by concern that the serious nature of the allegations warranted the court's scrutiny notwithstanding Appellant's failure to properly preserve those exceptions for appellate purposes.
In an arguably analogous case, this Court upheld a lower court's review of a
FLM's recommended decision where no exceptions had been filed and the parties had
thus waived their right to file exceptions. In John D.K. v. Polly A.S.,190 W.Va. 254, 438
S.E.2d 46 (1993), this Court construed the statutory predecessor to West Virginia Code
§ 48A-4-17,See footnote 26
which contained the same mandatory language concerning waiver of
exceptions, and determined that the lower court could review the evidence underlying a
FLM's order despite the parties' statutory waiver of their right to file exceptions. See 190
W.Va. at 258, 438 S.E.2d at 50. Just as the circuit court felt compelled to engage in a
review See footnote 27
in John D.K. despite the absence of filed exceptions, Judge Irons similarly
conducted his review of Appellant's evidence out of a sense of judicial obligation. In the
instant case, the circuit court, like the FLM, found no credible evidence of sexual abuse
which would have warranted supervised visitation. See footnote 28
The lower court's consideration of
the exceptions, and its denial of same, does not nullify the statutory waiver which resulted
from Appellant's untimely filing of her exceptions. Based on our conclusion that
Appellant failed to preserve her exceptions to the FLM's Recommended Order, we do not
address the substance of those exceptions. See W.Va. Code § 48A-4-17.
Appellant contends that the circuit court lacked jurisdiction to enter a
contempt ruling based on her allegation that she was served with a copy of the order to
show cause setting a time for the hearing, but not an accompanying petition for contempt.
She also asserts a notice problem with regard to the fact that she was not informed that
the circuit court would consider evidence as to any visitation denials other than that which
was denied on February 12, 1999, or any court orders other than the one entered on
February 9, 1999. Like Judge Kirkpatrick, who reviewed these same issues in
conjunction with Appellant's post-ruling motions, we agree that the essence of
Appellant's procedural challenge to the contempt ruling is notice-based, rather than
jurisdictional in nature. In his June 17, 1999, order, Judge Kirkpatrick ruled, when
considering Appellant's motion for relief from the March 3, 1999, contempt ruling:
The undersigned special judge observes that the issue outlined by plaintiff's counsel is actually a claimed problem relating to notice. At the present hearing of June 14, 1999, the court learned that plaintiff asserts that she was served only a copy of the Order to Show Cause, with no petition attached. Upon an examination of the court file, the court is of the opinion that the Order to Show Cause alone provided the plaintiff with significant actual knowledge of a contempt matter to be heard on March 1, 1999, so as to be generally informed of the proceedings. Combining such factor with the additional fact that plaintiff's counsel of record admitted at the hearing of June 14 that he did receive a copy of the petition, via United States Mail, cured any defect of notice which may have existed in connection with the March 1, 1999 hearing. The transcript of record clearly indicates that neither the plaintiff or [sic] her counsel suffered from surprise in regard to the visitation issues raised at this hearing. (emphasis supplied)
Just as Judge Kirkpatrick was convinced that Appellant was fully-informed of the nature of the contempt proceedings, our review of the record similarly reveals no impediment to enforcement of the contempt ruling arising from any notice-based concerns. See footnote 33 33
Given the interrelatedness of each of the visitation denials and the core similarity of the legal issue presented by such denials, we would be hard-pressed to find a constitutionally significant notice problem with regard to the court's consideration of each instance where visitation was denied after the entry of the February 9, 1999, order, rather than limiting its ruling to only those missed visitations that were expressly delineated on the petition for contempt. See footnote 34 34 Like Appellant's claims concerning the deadline for filing exceptions to the FLM's order, we find this one to be overly technical and aimed solely at avoiding the effects of a deleterious ruling. Appellant's attempt to convince us that the lower court abused its discretion in entering the contempt ruling by expanding the dates of missed visitation to encompass all those dates between the entry of the February 9, 1999, order and the March 1, 1999, hearing is unavailing. In this Court's opinion, the lower court would have been remiss were it to have limited its contempt ruling to the one date of denied visitation specified in the petition. Moreover, the lower court's arguable expansion of the scope of the contempt proceeding to include those dates where visitation denial occurred subsequent to the filing of the contempt petition was within the circuit court's plenary power to order and enforce a noncustodial parent's visitation rights with his or her children. Syl. Pt. 2, in part, Carter, 196 W.Va. at 241, 470 S.E.2d at 195.
A circuit court's authority to enter a contempt ruling in a domestic matter is
governed by the provisions of West Virginia Code § 48-2-22 (1999). Advocating a
construction of the statutory provisions which would defeat the lower court's finding of
contempt, Appellant argues that the lower court failed to adhere to the requirement
imposed by subsection twenty-two by not first making a finding that she had a method
available for purging herself of the contempt. Contrary to her contentions, subsection
22(b) is not written in terms of requiring the court to first make a finding regarding the
contemnor's ability to purge herself before imposing a contempt sanction. The statute is
stated in conditional terms: [I]f the court further finds the person has the ability to purge
himself of contempt, the court shall afford the contemnor a reasonable time and method
whereby he may purge himself of contempt. W.Va. Code § 48-2-22(b). Thus, the
statute only mandates the identification of a method and reasonable time for purging if
the lower court determines that purging can be accomplished. Clearly, under the
circumstances for which contempt was found in this case--thirteen instances of refused
visitation--Appellant could not have been found by the circuit court to be capable of
purging herself of those dates where visitation had already been denied.See footnote 35
While citing no law in support of this proposition, Appellant contends that by imposing a fine Judge Irons converted the civil contempt proceeding into a criminal matter. See footnote 36 36 In a recent opinion addressing the use of West Virginia Code § 48-2-22 in connection with enforcement of visitation rights, this Court both characterized and affirmed the entry of a contempt ruling, which included a $300 fine, as civil. See Carter, 196 W.Va. at 242-43, 470 S.E.2d at 196-97. Likewise, in State ex rel. Lambert v. Stephens, 200 W.Va. 802, 490 S.E.2d 891 (1997), this Court, in discussing the distinctions between civil and criminal contempt, stated: Another appropriate sanction in civil contempt cases is an order requiring the contemner to pay a fine as a form of compensation or damages to the party aggrieved by the contemptuous conduct. See footnote 37 37 Id. at 806, 490 S.E.2d at 895 (citing Syl. Pt. 3, State ex rel. Robinson v. Michael, 166 W.Va. at 660-61, 276 S.E.2d at 813). Thus, we find the law well-settled regarding the assessment of fines as a permissible sanction for civil contempt rulings. See also United States v. United Mine Workers, 330 U.S. 258, 303-04 (1947) (discussing use of fines in civil contempt proceedings for purpose of compensating party or to coerce compliance with court order).
Appellant circuitously reasons that, because the circuit court failed to
impose a sanction that included a method for purging the contempt, the civil contempt
proceeding necessarily was transformed into a criminal matter. This argument fails
because the determination of whether a contempt is civil or criminal is made with
reference to the purpose being served by the imposition of the sanction rather than the
nature of the sanction imposed.See footnote 38
Robinson, 166 W.Va. at 670, 276 S.E.2d at 818; accord
Stephens, 200 W.Va. at 806, 490 S.E.2d at 895. In syllabus point two of Robinson this
Court explained: Where the purpose to be served by imposing a sanction for contempt is
to compel compliance with a court order by the contemner [sic] so as to benefit the party
bringing the contempt action by enforcing, protecting, or assuring the right of that party
under the order, the contempt is civil. See footnote 39
166 W.Va. at 660, 276 S.E.2d at 813. Since the
contempt ruling arose from, and was directed at, compelling compliance with an existing
order concerning visitation to be afforded Appellee, the purpose of the sanction was
clearly consonant with the objectives underlying civil contempt.
While we find no procedural impediment to the imposition of a ruling of
summary contempt against Appellant's counsel based on the record before us, See footnote 40
error with regard to the lower court's award of attorney's fees and costs against said
counsel. During the March 1, 1999, hearing, Judge Irons decided, sua sponte, to award
attorney's fees to Appellee's counsel that were incurred between the entry of the February
9, 1999, order and the March 1, 1999, hearing. As its basis for awarding attorney's fees,
the lower court states in the March 3, 1999, order: [T]he frivolous filings by plaintiff's
counsel since the entry of the February 9, 1999 Order herein. See footnote 41
Appellant argues, and we
agree, that the lower court was required to provide him with notice and an opportunity to
be heard on the issue of sanctions being awarded, apparently under Rule 11 of the West
Virginia Rules of Civil Procedure, before levying such sanctions against him.
The sole authority cited by the lower court for its entry of an order awarding
attorney's fees against Appellant is this Court's decision in Daily Gazette Co. v. Canady,
175 W.Va. 249, 332 S.E.2d 262 (1985). While that decision clearly recognized the
authority of a court, both inherent and rule-based, to assess attorney's fees, See footnote 42
nonetheless admonished that [l]ike other sanctions, attorney's fees certainly should not
be assessed lightly or without fair notice and an opportunity for a hearing on the record.
Id. at 251, 332 S.E.2d at 264. In this case, the lower court decided to award attorney's
fees and then, without providing Appellant's counsel an opportunity to address either
Appellee's entitlement to fees or the reasonableness of the fee award itself, the circuit
court approved an order prepared by Appellee's counsel, which directed that $6080.50 in
cumulative fees and costs were to be paid by Appellant's counsel within seven days.
In failing to accord Appellant's counsel an opportunity to respond to the lower court's basis for assessing fees and costs, the most basic of all protections inherent to our judicial system has been violated. Even a cursory reading of Rule 11, which permits sanctions to be awarded against counsel for pleadings that are either not supported in law or fact or are wrongly filed for harassment, cost-enhancement purposes, or to promote delay, demonstrates that a circuit court must still afford the party, whose conduct has spawned the need to consider sanctions, notice and a reasonable opportunity to respond. W.Va.R.Civ.P.11(c). We observed in State ex rel. Dodrill v. Egnor, 198 W.Va. 409, 481 S.E.2d 504 (1996), that ordinarily a party about to be sanctioned is given an opportunity to explain the default or to argue for a lesser penalty. Id. at 414, 481 S.E.2d at 509. The record in this case demonstrates that the lower court merely announced its decision to award attorney's fees and did not permit any argument to be heard on this issue.
In syllabus points one and two of Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996), we addressed the underlying procedural concerns inherent to an award of sanctions:
Although Rules 11, 16, and 37 of the West Virginia Rules of Civil Procedure do not formally require any particular procedure, before issuing a sanction, a court must ensure it has an adequate foundation either pursuant to the rules or by virtue of its inherent powers to exercise its authority. The Due Process Clause of Section 10 of Article III of the West Virginia Constitution requires that there exist a relationship between the sanctioned party's misconduct and the matters in controversy such that the transgression threatens to interfere with the rightful decision of the case. Thus, a court must ensure any sanction imposed is fashioned to address the identified harm caused by the party's misconduct.
In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.
In rendering its award of attorney's fees, the lower court failed to heed basic due process principles of notice and opportunity to be heard, as well as the foundational relationship concerns discussed in Bartles.
While we do not question the lower court's authority to subject Appellant's
counsel to sanctions in the form of attorney's fees, we cannot approve the summary
method by which Judge Irons concluded that attorney's fees were warranted and then
permitted Appellee's counsel to submit their fees, without any opportunity for Appellant
to challenge the reasonableness of such fees. Before imposing sanctions for filing
frivolous pleadings and advancing frivolous arguments, a trial court must give the alleged
contemnor notice and an opportunity to be heard on the questions of frivolousness,
appropriate sanctions, and, if an award of attorney's fees is to be made, on the necessity
and reasonableness of such fees. At the conclusion of such hearing, the trial court must
make sufficient findings of fact and conclusions of law to enable the appellate court to
conduct a meaningful review. Accordingly, we find that the lower court abused its
discretion in imposing the sanction of attorney's fees by not first permitting Appellant's
counsel an opportunity to be heard on the issue underlying the trial court's award of
sanctions and by not holding a hearing on the reasonableness of the fees. See Bartles, 196
W.Va. at 389-90, 472 S.E.2d at 835-36. On remand, the lower court is directed to
conduct a hearing for the purpose of permitting Appellant's counsel an opportunity to
respond to the circuit court's position regarding the frivolous pleadings counsel filed
between February 9, 1999, and March 1, 1999, and if sanctions in the form of attorney's
fees are still deemed appropriate by the lower court, Appellee's counsel should address
the reasonableness of the fees submitted and Appellant's counsel should then be provided
an opportunity to challenge the submitted fees on the ground of reasonableness. See footnote 43
Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986).
As support for her Rule 59(a) motion seeking a new trial with regard to
the March 3, 1999, contempt ruling, Appellant asserted that she had not been served with
the petition for contempt. Dispensing with this jurisdictional challenge, the lower court
reframed Appellant's concerns as actually involving issues of notice, and concluded that
there was no merit to Appellant's averments since her counsel admitted to receiving the
contempt petition.See footnote 44
The circuit court found additionally that Appellant was not
surprised by the visitation issues considered in that proceeding. We find no error with
regard to the denial of the Rule 59(a) motion. Judge Kirkpatrick also found no merit to
Appellant's Rule 60 (b) (1) and (b) (6) challenges to the February 9, 1999, order adopting
the recommended order of FLM Wiley.See footnote 45
For the same reasons we did not address
Appellant's assignments of error pertinent to the February 9, 1999, order, we likewise do
not address the denial of motions seeking post-ruling relief from this same order.See footnote 46
Although we find no error with regard to Judge Kirkpatrick's entry of a contempt ruling against Appellant for her admitted failure to comply with the visitation directives set forth in multiple orders,See footnote 47 47 the mechanism set in place designed to restore the relationship between father and children in the event that Appellant chooses to prospectively deny visitation requires certain modifications. The June 17, 1999, order provides that:
Although the court does not anticipate that the plaintiff [Appellant] will now continue to prevent visitation; out of an abundance of precaution and in view of past actions, the undersigned does set forth hereafter a mechanism to be utilized upon failure of the plaintiff to follow the visitation directive. . . .
So, in the event of a further instance of denial of
unsupervised visitation by the plaintiff, the court will invoke
the following procedure as a remedial, not punitive, measure
designed to restore the relationship between father and
1. A prompt hearing upon notice will be scheduled in Monroe County before the undersigned to determine whether or not the defendant [Appellee] was enabled to exercise his visitation prescribed herein.
2. If it is established that the defendant was further denied his specified visitation by plaintiff, the care, custody and control of these children shall be transferred forthwith from the plaintiff to the defendant.
3. The Sheriff of Monroe County will be directed to retrieve and transport these children to the home of the defendant to effect this custody arrangement.
4. At such hearing, visitation privileges to be afforded to the plaintiff will be determined.
As justification for its four-pronged method of resolving future instances of
visitation denial, the lower court cited this Court's decision in Arbogast v. Arbogast, 174
W.Va. 498, 327 S.E.2d 675 (1984). Judge Kirkpatrick refers to the following passage
from that decision:
The custody change does not appear to have been ordered because of any isolated or technical disregard of the district court's authority, but because Jacquelyn consistently and willfully refused to allow her son any contact with the Arbogast family, denying her son the right to know and share the companionship, affection and society of his father and his parental grandparents. A mother's very act of preventing . . . children of tender age from seeing and being with their father is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the mother is unfit to act as custodial parent.
Id. at 505, 327 S.E.2d at 682. By focusing solely on the above-quoted language, the lower court obscures the fact that, in Arbogast, this Court was enforcing a modification of custody that had already been ordered by a Kansas court. Since our actions in that case were governed by the Parental Kidnaping Prevention Act,See footnote 48 48 Arbogast is clearly inapposite. Our decision in that case cannot be read as sanctioning a modification of custody based solely on visitation denial.See footnote 49 49
Since a change in legal custody can only result pursuant to the statutory procedures set forth in West Virginia Code § 48-2-15(e) (1999), which entail the filing of a motion seeking a change in custody and presume a hearing on such motion, the mechanism included in the June 17, 1999, order wrongly suggests circumvention of the statutorily-required method of obtaining a custody modification.See footnote 50 50 While the order correctly requires a hearing following notice to the parties on the issue of denied visitation, the order continues by directing, in mandatory terms, that legal custody shall forthwith be transferred from Appellant to Appellee upon proof of denied visitation. A modification of child custody, without notice and hearing, cannot be ordered to result concurrently with a prospective instance of forbidden conduct. Certainly, one parent's continued refusal to permit the non-custodial parent to exercise his/her visitation rights could be considered by the court upon a proper motion for a change in custody. A modification in custody cannot result, however, simply by virtue of a visitation denial. Because any modification must result from a petition, followed by a hearing on the evidence and can only be ordered following compliance with the standard established for custody modifications,See footnote 51 51 the lower court erred through its prospective directive that would authorize the sheriff to retrieve and transport the parties children as a remedial measure intended to coerce Appellant into compliance with the visitation directives already in place.See footnote 52 52 Accordingly, item numbers two, three, and four must be omitted from the list of procedures set in place by Judge Kirkpatrick to address future denials of visitation. Upon deletion of these conditions from the June 17, 1999, contempt ruling, the order is properly sustainable, given Appellant's admissions with regard to the visitation denials which are the subject of the contempt ruling.
Based on the foregoing, the February 9, 1999, order of the Circuit Court of
Monroe County is hereby affirmed; the March 3, 1999, order of the Circuit Court of
Monroe County is reversed as to the award of attorney's fees and remanded for
proceedings consistent with this opinion, but otherwise affirmed; and the June 17, 1999,
order of the Circuit Court of Monroe County is reversed as to the mechanism designated
for transferring physical and legal custody upon a prospective visitation denial and
remanded for entry of an order omitting such mechanism, but otherwise affirmed.
Affirmed, in part; Reversed in part; and Remanded With Directions.
children. Since Appellant only asked for the cessation of unsupervised visitation through her January 30, 1998, motion, we must question why no efforts were taken on the part of Appellee or the lower court to instigate supervised visitation at a time earlier than December 21, 1998.
Prior to ordering supervised visitation pursuant to W.Va. Code, 48-2-15(b)(1) , if there is an allegation involving whether one of the parents sexually abused the child involved, a family law master or circuit court must make a finding with respect to whether that parent sexually abused the child. A finding that sexual abuse has occurred must be supported by credible evidence. The family law master or circuit court may
condition such supervised visitation upon the offending parent
seeking treatment. Prior to ordering supervised visitation, the
family law master or circuit court should weigh the risk of harm
of such visitation or the deprivation of any visitation to the
parent who allegedly committed the sexual abuse against the
risk of harm of such visitation to the child. Furthermore, the
family law master or circuit court should ascertain that the
allegation of sexual abuse under these circumstances is
meritorious and if made in the context of the family law
proceeding, that such allegation is reported to the appropriate
law enforcement agency or prosecutor for the county in which
the alleged sexual abuse took place. . . .
Conducting its review under this standard, the circuit court concluded that the FLM was correct in not requiring supervised visitation since there was no credible evidence of any sexual abuse by Appellee to the children. The circuit court states in its February 9, 1999, order:
There was no direct testimony of sexual abuse by the Defendant
[Appellee], directed toward either child, other then [sic] that of
the Plaintiff [Appellant]; there was no testimony from the
children to the effect the Defendant had abused either child; and
there was no expert testimony on this point, even though this
Court had previously referred the children and the parties for a
psychological evaluation. Other then [sic] the hearsay testimony
of the Plaintiff, concerning the allegation of fondling, all other
testimony of sexual abuse concerned events predating the
separation, in 1994. This is particularly significant, in light of
Plaintiff's obligation to show a change of circumstances, in
order to modify an existing visitation order.
Decision, invoked an automatic stay under Rule 62(a) of the West Virginia Rules of Civil Procedure. Appellant reasons that the visitation directives set forth in the February 9, 1999, order could not be enforced vis-a-vis the contempt order based on her filing of the new trial motion. Critically, the order from which Appellant sought a new hearing was a denial of her petition to modify visitation.See footnote 53 The circuit court's denial of Appellant's motion to modify impliedly continued the previously-ordered visitation pursuant to the final order of divorce entered in 1996. We simply cannot sanction the offensive use of a procedural mechanism intended to postpone enforcement of a judgment in a manner unintended by the rule--to support Appellant's position that she had no obligation to comply with directives concerning visitation pending a ruling on her Rule 59(a) motion.
contempt ruling. Clearly, the lower court had jurisdiction to consider the entry of a contempt ruling that emanated from a previous order which it had entered. See W.Va. Code § 48-2-22 (1999).
129 (2nd Cir. 1998) (stating that the power of a court to punish for contempt may be
'inherent' but noting that penalties are determined by Congress) (citing Ex Parte Robinson,
86 U.S. (19 Wall.)). We recognized in Bartles that [t]he choice of imposition of sanctions
for failing to comply with a court order lies with the trial court, and we will not lightly
disturb that decision. 193 W.Va. at 389, 472 S.E.2d at 835. Moreover, in examining the
provisions of West Virginia Code § 48-2-22, it is clear that the statute itself contemplates a
fusing of criminal and civil contempts as subsection b permits a trial court to treat a finding
of criminal contempt as a civil contempt. W.Va. Code § 48-2-22(b).
We further recognize the arguable impotence that a circuit court has with regard to imposing an effective means to both sanction a contumacious party's flagrant violation of court orders regarding indiscrete issues, such as visitation directives, and, at the same time, to compel compliance with those orders. Short of incarceration, the lower court had no other means of coercing Appellant into complying with the court's directives concerning visitation. While this case does not present the opportunity for this Court to reconsider the continued viability of its decision in Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980), with regard to our ruling that jury trials are required whenever a circuit court intends to incarcerate a contemnor, we question whether that ruling comports with the reasoning of the United States Supreme Court decisions which only require jury trials where the criminal contempt can be viewed as serious based on the length of the incarceratory period, with serious being defined as involving a period of incarceration that minimally spans six months. See Bagwell, 512 U.S. at 827; Taylor v. Hayes, 418 U.S. 488, 495 (1974) (holding that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute); Bloom v. State of Illinois, 391 U.S. 194, 207 (1968) (segmenting right to jury trials between those contempts which qualify as petty offenses based on nominal period of incarceration and contempts where sentence renders offense serious, without specifying bright line rule as to what sentence length necessarily converts offense into serious category, and observing that [p]rosecutions for contempt play a significant role in the proper functioning of our judicial system). We leave that issue for another day since the lower court did not impose the penalty of incarceration in this case.
A court may order payment by an attorney to a prevailing
party reasonable attorney fees and costs incurred as the result of
his or her vexatious, wanton, or oppressive assertion of a claim
or defense that cannot be supported by a good faith argument for
the application, extension, modification, or reversal of existing
175 W.Va. at 250, 332 S.E.2d at 263.