IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term
SHELIA D. ALLEN
Plaintiff Below, Appellee,
MICHAEL L. ALLEN,
Defendant Below, Appellant.
Appeal from the Circuit Court of Roane County
Honorable David W. Nibert, Judge
Civil Action No. 97-D-24
AFFIRMED, IN PART, AND REVERSED, IN PART
Submitted: September 23, 2009
Filed: November 16, 2009
Shelia D. Elias
Michael L. Allen
Letart, West Virginia Spencer, West Virginia
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. 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. Syllabus, Carr v. Hancock
, 216 W.Va. 474, 607 S.E.2d 803 (2004).
2. The jurisdiction of family courts is limited to only those matters
specifically authorized by the Legislature, while circuit courts have original and general
jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West
Virginia. Syllabus Point 5, in part, Lindsie D.L. v. Richard W.S.
, 214 W.Va. 750, 591 S.E.2d
3. Pursuant to Article VIII, Sections 6 and 16 of the West Virginia
Constitution, W. Va.Code § 51-2-2 (1978), and the Family Court statutes, W. Va.Code §§
51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to
circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the
original jurisdiction of the circuit courts in this State. Syllabus Point 4, State ex rel. Silver
, 213 W.Va. 692, 584 S.E.2d 548 (2003).
4. To the extent that this Court's prior decision in Ray v. Ray, 216 W.Va.
11, 602 S.E.2d 454 (2004) (per curiam), and its progeny are inconsistent with this holding,
they are expressly overruled.
5.. A family court has continuing jurisdiction to enter, modify or reconsider
a child support order in a domestic relations case, notwithstanding the fact that another order
in the same case has been appealed to a higher court.
In the majority of civil court cases, litigation is supposed to secure a speedy and
inexpensive determination of a disputed issue. (See footnote 1) Unfortunately, in domestic relations cases,
that is not always the guiding rule for parents who are asked to pay support for the benefit
of their children.
The presence of two parties before a family court judge is easily viewed as a
tacit admission of an irreparable relationship. At the conclusion of most family court cases,
in the absence of a child, the parties go their separate ways. But in cases involving child
parenting and support, the child's parents are compelled to continue to interact for many
years until the child reaches the age of majority. Too often, the child's interests become a
batted shuttlecock as one parent seeks to gain some immeasurable physical, financial or
psychological advantage over the other.
For that reason, the jurisdiction of a family court in matters of child parenting
and support is sui generis, wholly unique in character when compared to other types of
actions. (See footnote 2) Family courts are asked to provide a just, speedy and inexpensive determination
of child support questions, and yet constantly inquire, tweak and adjust child support
obligations for many years so that a child can share in his or her parents' ever-changing
standard of living.
The instant appeal from the Family Court and the Circuit Court of Roane
County asks that we delve into the parameters of the jurisdiction of the family courts.
Specifically, we are asked to decide whether a family court loses the authority to consider
questions of child support when an issue in a domestic relations case has been appealed to
a higher court.
As set forth below, we find that a family court has continuing and exclusive
jurisdiction in a domestic relations case to enter, modify or reconsider a child support order,
notwithstanding the fact that another order in the same case has been appealed to a higher
Facts and Background
As this Court discussed in a prior opinion, (See footnote 3)
the pro se
parties _ appellant
Michael L. Allen and appellee Shelia D. Allen (now Elias) _ were divorced on August 25,
1998. They are the parents of two children, and the record supports the family court judge's
statement that these parties are involved in one of the most bitter and highest of conflicts
that the Court has ever witnessed involving constant fighting and bickering over the very
last penny and minute, and every detail that they can think of to fight over. The family court
judge expressed concern that the parties felt the need to control one another through the use
of the children and the court system, so much so that the battle rises close to the level of
child abuse. (See footnote 4)
To understand the subject-matter jurisdiction issue currently pending before
the Court, it is helpful to understand the procedural quagmire that the parties were trapped
in from 2002 to 2006.
On November 6, 2002, the family court entered an order modifying the parties'
child support obligations. The family court found that Mr. Allen was unemployed but
making good faith efforts to become employed, and attributed minimum wage income to
Mr. Allen. Mr. Allen was required to pay Ms. Elias $100.48 per month as support for the
On December 9, 2002, Ms. Elias (through her lawyer) filed a motion for
reconsideration with the family court contending that the family court had not considered Mr.
Allen's substantial variable income in the years preceding the family court's order. An order
on the motion was not filed by the family court until February 1, 2005. In that order, the
family court concluded that Mr. Allen had failed to properly disclose his variable income
over the years, and found that his child support obligation should be recalculated back to the
year 2000. The family court ordered the parties to appear at a hearing on February 9, 2005
to present evidence on the accurate incomes of the parties dating back to the year 2000.
Mr. Allen (acting pro se
) immediately appealed the family court's February 1,
2005 order to the circuit court. In an order dated November 18, 2005, the circuit court
reversed the family court's order. The circuit court ruled that a motion for reconsideration
of a family court order does not toll the appeal period, and ruled that a family court judge
must statutorily rule on a motion to reconsider within 30 days. (See footnote 5)
Because the family court in
this case did not rule for over two years, the circuit court decided that the family court did
not have jurisdiction to rule on Ms. Elias's motion for reconsideration, and thereby prohibited
the family court from altering Mr. Allen's November 2002 child support obligation.
Ms. Elias then filed two pleadings which are relevant to the instant case. First,
on February 9, 2006, Ms. Elias filed a petition for appeal of the circuit court's order with this
Court. Second, on February 28, 2006, Ms. Elias filed a petition to modify the parties' child
support obligations with the family court. The petition to modify was served on Mr. Allen
on March 6, 2006.
On June 28, 2006, this Court unanimously refused Ms. Elias's petition for
appeal. This Court's order was filed in the Circuit Court of Roane County on July 7, 2006.
Subsequently, a hearing was conducted before the family court, and on March
9, 2007, an order was filed modifying the parties' child support obligations. The family court
found that Mr. Allen was self-employed and had $4,469.03 per month in income. The family
court increased his support obligation to $630.49 per month, and ruled that because Mr. Allen
was served with the modification petition in March 2006, his support obligation would take
effect on April 1, 2006.
Mr. Allen immediately appealed the family court's order to the circuit court,
arguing that because the case was on appeal to the Supreme Court of Appeals when Ms. Elias
filed her petition to modify, the family court was without jurisdiction to ever act on the
petition. Mr. Allen argued that the family court had only one option: to dismiss the
In an order entered March 13, 2008, the circuit court reversed, in part, the
family court's order. The circuit court partially agreed with Mr. Allen that the family court
had no subject matter jurisdiction while the parties' domestic relations case was pending
before the Supreme Court of Appeals. However, once this Court refused Ms. Elias's petition
for appeal, the circuit court found that the family court's subject matter jurisdiction was once
again restored and acquired. The circuit court therefore reverse[d] the Family Court's
order to the extent that it is retroactive to a date prior to July 7, 2006. The circuit court
otherwise affirmed the child support order.
Mr. Allen now appeals the circuit court's March 13, 2008 order.
Standard of Review
Our standard of review was succinctly stated in the Syllabus of Carr v.
, 216 W.Va. 474, 607 S.E.2d 803 (2004):
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.
The primary argument made by the appellant, Mr. Allen, concerns the
parameters of the subject-matter jurisdiction of the family courts. As we have previously
stated, the family courts are courts of limited jurisdiction, and have only those powers
specifically enumerated by the Legislature. See
, Syllabus Point 5, in part, Lindsie D.L. v.
, 214 W.Va. 750, 591 S.E.2d 308 (2003) (The jurisdiction of family courts is
limited to only those matters specifically authorized by the Legislature, while circuit courts
have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the
Constitution of West Virginia.); Syllabus Point 4, State ex rel. Silver v. Wilkes
, 213 W.Va.
692, 584 S.E.2d 548 (2003) (Pursuant to Article VIII, Sections 6 and 16 of the West
Virginia Constitution, W.Va. Code § 51-2-2 (1978), and the Family Court statutes, W.Va.
Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are
inferior to circuit courts. Family courts are, therefore, subject to both the appellate
jurisdiction and the original jurisdiction of the circuit courts in this State.).
Mr. Allen contends that the family court had no jurisdiction to entertain the
appellee's, Ms. Elias's, petition for modification of child support because, when the petition
for modification was filed, this domestic relations case was already pending review before
the Supreme Court of Appeals. Mr. Allen therefore contends that the family court could do
nothing on the petition except dismiss it from the docket. See
, Syllabus Point 1, Hinkle v.
Bauer Lumber & Home Bldg. Center, Inc.
, 158 W.Va. 492, 211 S.E.2d 705 (1975)
(Whenever it is determined that a court has no jurisdiction to entertain the subject matter of
a civil action, the forum court must take no further action in the case other than to dismiss
it from the docket.). In other words, Mr. Allen contends that the family court had no
authority _ even after this Court had refused Ms. Elias's petition for appeal _ to increase his
child support obligation, based solely on the date that the petition to modify was filed. Mr.
Allen therefore contends that the circuit court erred in affirming, in part, the family court's
child support award.
The appellant's argument appears to be founded on the presumption that a
family court automatically has no jurisdiction to make any rulings in a domestic relations
case while another matter in the case is pending review on appeal. We cannot, however, find
any such enumerated legislative limit upon the authority of the family courts, and the
appellant has directed us to no such legislative pronouncement.
The sole authority upon which the appellant bases his argument is a per curiam
opinion, Ray v. Ray
, 216 W.Va. 11, 602 S.E.2d 454 (2004). Unfortunately for the appellant,
we have carefully examined Ray
and find that it is written so broadly that it contravenes both
our child support statutes and the Rules of Practice and Procedure for Family Courts
, Burton v. Burton
, 223 W.Va. 191, ___, 672 S.E.2d 327, 332 (2008) (per curiam
(finding the Court's vague statements in Ray
have not been particularly helpful.).
, the family court entered a child support order on December 4, 2001.
On January 3, 2002, Mr. Ray filed a petition to modify that support order. The child support
modification statute _ W.Va. Code
, 48-11-105  _ requires that the party petitioning for
a modification demonstrate a change in the circumstances of a parent. Mr. Ray, however,
did not allege a new change in circumstances but instead appears to have relitigate[d] the
findings made regarding his income for periods that were determined in the December 4,
2001, order. Ray
, 216 W.Va. at 15 n.15, 602 S.E.2d at 15 n.15. On these facts, we
concluded in Ray
that the family court was without authority under W.Va. Code
to modify the December 4, 2001 child support order, and that Mr. Ray's proper remedy
would have been to appeal the order to the circuit court and/or this Court.
The Court in Ray was correct to find that the child support modification
process under W.Va. Code, 48-11-105 cannot be used to replace the appeal process, and
cannot be used to relitigate the findings made in a prior support order. There are, however,
two significant problems with Ray that we can discern.
First, the Ray opinion answers a jurisdictional question that was neither raised
by the facts nor briefed by the parties. 216 W.Va. at 13, 602 S.E.2d at 456. The Court went
beyond the specific facts of Ray, and concluded that:
Absent a petition for appeal to this Court and an adverse ruling
or the expiration of the appeal period, Mr. Ray could not
challenge the child support order [through a petition for
modification] pursuant to W.Va. Code § 48-11-105.
216 W.Va. at 14, 602 W.Va. at 457. This conclusion is contrary to W.Va. Code, 48-11-105,
which allows a family court to modify a child support order, for the benefit of the child,
but only if _ since the last child support order was entered _ there is a substantial change in
circumstances. (See footnote 6) A petition to modify a past child support order under W.Va. Code, 48-11-105 is not a challenge to the past order; it is, instead, a request that the family court enter
a new order governing the future but which reflects the current status of the parties and the
Second, the opinion in Ray incorrectly interprets another statute _ W.Va. Code,
51-2A-10 _ that was also not raised by the parties. W.Va. Code, 51-2A-10 (See footnote 7) permits a party
to file a motion for reconsideration of a past child support order within a reasonable time,
but not more than one year, after the entry of the order. The statute states that a family
court must enter an order ruling on the motion within thirty days of the date of the filing of
the motion. In footnote 16, the Court in Ray concluded that the thirty day window for
ruling on a motion for reconsideration is mandatory because a motion for reconsideration does not toll the time for appeal. Ray, 216 W.Va. at 15 n.16, 602 W.Va. at 458 n.16
(emphasis added, quotations and citations omitted). The Court went on to find that because
the family court in the Ray case did not issue a ruling within 30 days of Mr. Ray's motion,
that even if Mr. Ray had tried to rely on W.Va. Code, 51-2A-10, the family court was
without jurisdiction to enter the order[.] Id.
Our conclusion in footnote 16 of Ray that a motion for reconsideration under W.Va. Code, 51-2A-10 does not toll the time for appeal is, unfortunately, flatly
contradicted by the Rules of Practice and Procedure for Family Court. Rule 25 of the Rules makes it clear that a petition to appeal a family court order tolls the time for filing a motion
for reconsideration, and vice-versa, Rule 28 makes it clear that a motion for reconsideration
filed within the appeal period tolls the time for filing an appeal. Rule 25 states:
Any party may file a motion for reconsideration of a family
court order as provided in W.Va. Code, § 51-2A-10. If an
appeal has been filed within the time period for filing a motion
for reconsideration, the time for filing a motion for
reconsideration will be suspended during the pendency of the
Conversely, Rule 28(a) states:
A party aggrieved by a final order of a family court may file a
petition for appeal to the circuit court no later than thirty days
after the family court final order was entered in the circuit
clerk's office. If a motion for reconsideration has been filed
within the time period to file an appeal, the time period for filing
an appeal is suspended during the pendency of the motion for
In light of the language of these rules, our statement in footnote 16 of Ray _ that a ruling on
a motion for reconsideration within 30 days is mandatory because a motion for
reconsideration does not toll the time for appeal _ is plainly wrong. A motion for
reconsideration does toll the time for appeal, and a timely petition for appeal does toll the
time for filing a motion for reconsideration, and there is nothing else in the statute to indicate
that the 30-day time limit is a jurisdictional requirement.
In summary, the essence of our decision in Ray _ that a petition to modify a
child support order under W.Va. Code, 48-11-105 may not be used in lieu of an appeal _ was
correct. But the remainder of the per curiam opinion pertaining to the jurisdiction of the
family courts is _ without question _ wrong. We therefore overrule Ray in all respects except
for its conclusion that a petition to modify a child support order may not be used in lieu of
Because the parties have cited us to no other authority regarding the
jurisdiction of the family courts over child support questions in a domestic relations case
when an issue in the case has been appealed to a higher court, we must therefore carefully
examine the statutes setting forth the borders of the family courts' authority over child
The family courts plainly have original and continuing jurisdiction over matters
of child support in domestic relations actions. The Legislature has made this clear. First, in
the statutes establishing the family courts, W.Va. Code, 51-2A-2(a)(2) and (a)(9) , the
The family court shall exercise jurisdiction over the following
matters: . . .
(2) All actions to obtain orders of child support . . .
(9) All motions for modification of an order . . . for child
Further, the Legislature has stated when a marriage that involves children is dissolved, the
family court must enter an order setting the parties' child support obligations, and may upon
motion of any party revisit and revise those obligations so long as the children are minors. (See footnote 8)
And finally, the Uniform Interstate Family Support Act adopted by the Legislature says that
the jurisdiction of the family courts over child support matters is continuing and
exclusive if the parent and child reside in this State. (See footnote 9)
The question raised by the appellant is whether the Legislature intended to
divest the family courts of continuing and exclusive jurisdiction over matters of child support
in a domestic relations action, when an issue in the action has been appealed. We find that
it did not.
The Legislature established a statutory system for appealing orders from the
family court to both the circuit court and this Court. See W.Va. Code, 51-2A-10 to -16. In
that statutory system, we find a scheme that has as its polar star the best interests of the
children. None of these appellate provisions deprive the family court of jurisdiction over
child support matters while an appeal is pending, and none require a stay of any or all
proceedings while an appeal is pending.
Instead, the statutes make it clear that an appeal of a family court order _ any order _ to a circuit court does not automatically stay the enforcement of that order, and does
not automatically stay any other proceedings. (See footnote 10) Under W.Va. Code, 51-2A-12, a stay is
entirely discretionary upon the courts. W.Va. Code, 51-2A-12(a) states that if an appeal is
filed in the circuit court, a family court judge may (sua sponte or on motion of a party) enter
an order halting all or part of a final order or granting a stay of proceedings. W.Va.
Code, 51-2A-12(b) states that if the family court denies a stay, or affords unacceptable relief,
then a party may ask the circuit court for a stay. See, Deitz v. Deitz, 222 W.Va. 46, 659
S.E.2d 331 (2008) (per curiam) (circuit court cannot grant a stay sua sponte, but can only
grant a stay on motion of a party).
But, most importantly, the Legislature made it clear that an order by a family
court or circuit court granting a stay of any kind may not include a stay of an award for the
payment of . . . child support pending the appeal[.] W.Va. Code, 51-2A-12(c). See also,
Rule 27, Rules of Practice and Procedure for Family Court.
As for appeals to this Court, the Legislature did not prescribe any measures
regarding stays. However, our Rules of Appellate Procedure make clear that in civil cases,
the issuance of a stay when a final order is appealed to this Court is discretionary, both by
the circuit court and by this Court. W.Va.R.App.Pro., Rule 6 . (See footnote 11) Further, a stay
operates in a civil case as a stay of proceeding, which the Rules of Appellate Procedure define as a proceeding to stay execution of a judgment pending an appeal. In other words,
in an appeal to this Court, a stay does not automatically halt all proceedings in the court
below, but is limited only to halting the operation of the final order subject to appeal.
Reading these various statutes and rules together in the context of orders
pertaining to child support in domestic relations actions, we find a system that is sui generis and unlike a typical civil appeal. The system clearly contemplates that a final family court
child support order may be challenged directly via an appeal or a motion to reconsider. A
party may seek a stay of all or part of most family court orders, but not orders pertaining to
contemporaneous child support payments. And while that order is being reconsidered or
reviewed on appeal, the system clearly contemplates a parent seeking an entirely new,
prospective child support order based upon a significant change in the parties'
circumstances. (See footnote 12)
We can conceive of circumstances where a family court has entered a child
support or other domestic relation order, and while that order is on appeal _ to either the
circuit court or this Court _ a parent's or child's circumstances may have dramatically
changed such that a new, prospective child support order is compelled by events. A parent
may have lost a job, gotten a job, received a significant pay raise, moved or become
homeless, or a child may have come of majority, developed a serious medical condition, or
chosen to live with a different parent a majority of the time. Worse yet, there could be
allegations of domestic violence, or a party may be contemptuously flouting the family
court's rulings and be refusing to pay the child support ordered. In such circumstances, we
cannot accept the appellant's argument that the Legislature intended for the filing of an
appeal to automatically deny the family court any authority to address the best interests of the
Accordingly, we conclude that a family court has continuing jurisdiction to
enter, modify or reconsider a child support order in a domestic relations case,
notwithstanding the fact that another order in the same case has been appealed to a higher
In the instant case, the circuit court concluded that, because an appeal was
pending before this Court between February 9, 2006 and July 7, 2006, the family court was
automatically divested of any jurisdiction to modify the parties' child support obligations.
This holding was clearly in error and must be reversed. The case must also be remanded for
entry of an order reinstating the family court's March 9, 2007 order.
The circuit court did conclude _ correctly, we believe _ that the family court
could modify the parties' child support obligations for dates after July 2006. While the
appellant disagrees with this conclusion, we find that the circuit court's ruling should be
affirmed. (See footnote 13)
Affirmed, in part, reversed, in part, and remanded.
See W.Va. Rules of Civil Procedure
Rule 1 .
, Wampler Foods, Inc. v. Workers' Compensation Div.
, 216 W.Va. 129, 142,
602 S.E.2d 805, 818 (2004) (workers' compensation law is a sui generis
hodge-podge that stands alone from all other areas of the law, causing decisions rendered in
the workers' compensation realm to be almost wholly unusable in any other area of the law,
Allen v. Allen
, 212 W.Va. 283, 569 S.E.2d 804 (2002) (per curiam
The appellee expressed during oral argument that, because of the appellant's litigious
nature, her highest hope is that this Court will issue an order that the appellant won't be able
The circuit court's decision was based exclusively on an interpretation of the statute
pertaining to motions for reconsideration, W.Va. Code
, 51-2A-10, that was contained in
footnote 16 of Ray v. Ray
, 216 W.Va. 11, 15, 602 S.E.2d 454, 458 (2004). As we discuss
later in this opinion, we overrule Ray
because it is contrary to our child support statutes and
our Rules of Practice and Procedure for Family Courts
W.Va. Code, 48-11-105  states:
(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. A motion for modification of a child support order may
be brought by a custodial parent or any other lawful custodian
or guardian of the child, by a parent or other person obligated to
pay child support for the child or by the Bureau for Child
Support Enforcement of the Department of Health and Human
Resources of this state.
(b) The provisions of the order may be modified if there
is a substantial change in circumstances. If application of the
guideline would result in a new order that is more than fifteen
percent different, then the circumstances are considered a
(c) An order that modifies the amount of child support to
be paid shall conform to the support guidelines set forth in
section one hundred one, article thirteen, et seq., of this chapter
unless the court disregards the guidelines or adjusts the award as
provided in section seven hundred two of said article.
(d) The Supreme Court of Appeals shall make available
to the courts a standard form for a petition for modification of
an order for support, which form will allege that the existing
order should be altered or revised because of a loss or change of
employment or other substantial change affecting income or that
the amount of support required to be paid is not within fifteen
percent of the child support guidelines. The clerk of the circuit
court and the secretary-clerk of the family court shall make the
forms available to persons desiring to represent themselves in
filing a motion for modification of the support award.
(e) Upon entry of an order modifying a child support
amount the court shall, no later than five days from entry of the
order, provide a copy of the modified order to the Bureau for
Child Support Enforcement. If an overpayment to one of the
parties occurs as a result of the modified terms of the order,
funds properly withheld by the Bureau for Child Support
Enforcement pursuant the terms of the original order shall not be
returned until such time as the Bureau for Child Support
Enforcement receives repayment from the party in possession of
The appellant, Mr. Allen, raised two other points of error in his petition for appeal.
First, Mr. Allen questions the family court's decision to use his 2006 income rather
than an undetermined average of his prior income. The circuit court refused to consider this
question since it was raised for the first time on appeal, and we see no error in the circuit
Second, Mr. Allen demands that the appellee's former attorney be sanctioned for
obtaining copies of Mr. Allen's income tax forms from the State Tax Commissioner through
use of a subpoena, rather than a court order, and then filing those forms with the court. (The
family court judge later had those tax documents removed from the court record). Mr. Allen
asserts that, under Rule 6 of the Rules of Practice and Procedure for Family Court, a party's
income tax forms are confidential records.
Rule 6(d) lists various confidential records that cannot be obtained by subpoena
(unless the subject of the records waives confidentiality in writing) but are only accessible
by a court order:
Such records include, but are not limited to: confidential
medical and educational records; and confidential records of the
West Virginia Department of Health and Human Resources; the
Office of Social Services; the Office of Economic Services; the
child support enforcement agency; West Virginia juvenile court
proceedings; mental health treatment and counseling; substance
abuse treatment; and domestic violence shelters.
We do not perceive how income tax records _ which the family court mandated that the
parties exchange annually but which Mr. Allen apparently refused to produce _ are
confidential records on par with those listed in Rule 6(d). Furthermore, we find nothing
mandating a party or their counsel be punished for an alleged violation of the Rule. We
therefore cannot say that the family court erred in refusing to award sanctions, and decline
to give further consideration to the appellant's argument.