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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2004 Term
Petitioner Below, Appellant,
Defendant Below, Appellee.
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Civil Action No. 96-D-2183
REVERSED AND REMANDED
Submitted: June 8, 2004
Filed: June 23, 2004
James M. Cagle
Charleston, West Virginia Parkersburg,
Attorney for Appellant Attorney
The Opinion of the Court was
delivered PER CURIAM.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
reviewing a final order of a family court judge [when the circuit court has
denied a petition for appeal], 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
. Syllabus point 1, May v. May
, 214 W. Va. 394,
589 S.E.2d 536 (2003).
neither party to an appeal raises, briefs, or argues a jurisdictional question
presented, this Court has the inherent power and duty to determine [the issue]
unilaterally[.] Syllabus point 2, in part, James M.B. v. Carolyn
M., 193 W. Va. 289, 456 S.E.2d 16 (1995).
Tammi Ray (hereinafter referred
to as Ms. Ray), appellant/plaintiff below, appeals an order recommended
by the Family Court of Kanawha County and affirmed by the Circuit Court of Kanawha
County. Here, Ms. Ray assigns error to the family court judge's order which modified
a previous child support order by reducing Mr. Ray's child support payments.
The same order also required her to repay overpayments for past child
support. After a careful review of the briefs and record in this case, the decision
of the family court is reversed.
FACTUAL AND PROCEDURAL HISTORY
Ms. Ray and Jimmie Ray (hereinafter
referred to as Mr. Ray). appellee/defendant below, were married in
December 1982. Two children were born of the marriage. (See
In September of 1996 the parties separated, and
Ms. Ray later filed a complaint for divorce. At some point in 2000, a final order
was entered granting a divorce. (See
A subsequent order was entered on December 4, 2001, (See
that obligated Mr. Ray to pay monthly child
support in a total amount of $3,894. (See
On January 3, 2002, Mr.
Ray filed a petition to modify child support, asserting that the initial
child support order was chimeric and based upon legally and factually
erroneous assumptions and findings[.] After taking evidence, the family
court judge entered an order on February 11, 2003, that reduced child support
payments to a total of $368.08 per month. (See
footnote 5) The family court judge also awarded Mr. Ray
$36,832.20, as child support overpayments for the period from January 2002
to October 2002 during which the modification proceeding was pending. Additionally,
the family court judge suspended further child support payments until Ms.
Ray had repaid the overpayment in full to Mr. Ray.
Ms. Ray filed a petition for
appeal with the circuit court, challenging the child support modification order. The circuit court denied the petition for appeal. (See
footnote 6) Thereafter, Ms. Ray filed an appeal to
STANDARD OF REVIEW
In Syllabus point 1 of May v. May
, 214 W. Va.
394, 589 S.E.2d 536 (2003), we set out the applicable standard of review as follows:
a final order of a family court judge [when the circuit court has denied a petition
for appeal], 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
With these principles in view, we will proceed to the issues presented in this
A. Petition to Modify Child Support Cannot
Substitute for a Timely Appeal
The initial issue we must address,
which was not briefed by the parties, involves the subject matter jurisdiction
of the family court to entertain the petition to modify child support filed in this case. We have held that [w]here neither
party to an appeal raises, briefs, or argues a jurisdictional question presented,
this Court has the inherent power and duty to determine [the issue] unilaterally[.] Syl.
pt. 2, in part, James M.B. v. Carolyn M
., 193 W. Va. 289, 456 S.E.2d
16 (1995). Insofar as subject matter jurisdiction is not waivable, we may
sua sponte address the matter. See Snider v. Snider
, 209 W.
Va. 771, 777, 551 S.E.2d 693, 699 (2001) (Whether a court has subject
matter jurisdiction over an issue is a question of law which may be raised
at any point in the proceedings.).
Mr. Ray filed a Petition
for Modification of the child support order with the family court on
January 3, 2002. (See
footnote 7) In that petition, Mr. Ray expressly alleged
that he was filing the petition pursuant to W. Va. Code § 48-11-105
(2001) (Repl. Vol. 2001). (See
footnote 8) Further, Mr. Ray's petition alleged that he was seeking to modify the December 4,
2001, child support order. The jurisdictional issue presented by the above
facts is whether the December 4, 2001, child support order had to be initially
challenged by an appeal, or the appeal period had to have expired, before
a petition to modify under W. Va. Code § 48-11-105 could be entertained by the family court. (See
footnote 9) As we shall explain below, the family court
did not have jurisdiction to entertain a petition for modification of
the child support order under W. Va. Code § 48-11-105 while that
order was appealable.
At the time Mr. Ray filed
his petition for modification, the Legislature had enacted W. Va. Code § 51-2A-10
(a) (2001), which became effective January 1, 2002, and provides the exclusive
procedure for challenging a final order of the family court prior to filing
an appeal. (See
footnote 10) This statute provides as follows:
may file a motion for reconsideration of a temporary or final order of the family
court for the following reasons: (1) Mistake, inadvertence, surprise, excusable
neglect or unavoidable cause; (2) newly discovered evidence which by due diligence
could not have been available at the time the matter was submitted to the court
for decision; (3) fraud, misrepresentation or other misconduct of an adverse
party; (4) clerical or other technical deficiencies contained in the order; or
(5) any other reason justifying relief from the operation of the order.
W. Va. Code § 51-2A-10(a). See also Rule 25, West Virginia
Rules of Practice and Procedure for Family Court (Any party may file
a motion for reconsideration of a family court order as provided in W. Va. Code, § 51-2A-10.).
Mr. Ray did not avail himself
of the relief permitted by W. Va. Code § 51-2A- 10(a). Instead, Mr.
Ray erroneously invoked W. Va. Code § 48-11-105. (See
footnote 11) Absent a petition for appeal to this Court
and an adverse ruling or the expiration of the appeal period, (See
footnote 12) Mr. Ray could not challenge the child support
order pursuant to W. Va. Code § 48-11-105. (See
footnote 13) He had to invoke W. Va. Code § 51-2A-10(a). (See
footnote 14) Consequently, the family court judge did
not have jurisdiction over the petition for modification filed on January
3, 2002, pursuant to W. Va. Code § 48-11-105. (See
footnote 15) See Syl. pt. 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.). (See
In view of the above analysis,
the family court's order modifying child support must be reversed. (See
B. Availability of Costs and Attorney's Fees
As a final matter, we note that
Ms. Ray has requested attorney's fees and costs associated with bringing this
appeal. We find that, under the facts of this case, the requested attorney's
fees and costs are appropriate. Therefore, we order that Mr. Ray pay Ms. Ray's
reasonable attorney's fees and costs incurred in bringing this appeal, and order
that a hearing be scheduled to determine Ms. Ray's reasonable attorney's fees
and costs in accordance with this opinion. See Wilson v. Wilson, 214 W. Va.14, 18, 585 S.E.2d 14, 18 (2003) (per curiam); Rogers v. Rogers,
197 W. Va. 365, 374, 475 S.E.2d 457, 466 (1996); Ball v. Wills, 190 W.
Va. 517, 526, 438 S.E.2d 860, 869 (1993).
In view of the foregoing, that
part of the family court's order entered on February 11, 2003, modifying child
support is reversed, (See
and the December 4, 2001, child support order
of the circuit court is reinstated. This case is remanded to the family court
for a determination of the amount of costs and reasonable attorney's fees to
which Ms. Ray is entitled for prosecuting this appeal.
The oldest child, Whitney, was born
May 13, 1987. The youngest child, Justin, was born December 14, 1990.
In 2000, Mr. Ray filed for a writ
of prohibition with this Court seeking to prohibit enforcement of an order
awarding Ms. Ray temporary alimony. We denied the writ. See State ex rel.
Ray v. Canady, 208 W. Va. 182, 539 S.E.2d 442 (2000) (per curiam).
The parties give conflicting dates
as to when the final order was entered regarding child support. Ms. Ray's
brief indicates that the date was November 27, 2001. Mr. Ray argued to the
family court judge and in his brief before this Court that the complained
of order was entered on December 4, 2001. The order has not been made a part
of the record in this appeal. Therefore, we will rely upon the date given
to the family court judge by Mr. Ray. Our resolution of this case would be
the same regardless of which date is the correct one.
The record does not indicate how
this amount was divided between the two children.
The new child support award was
divided as follows: $211.71 for Whitney, and $156.37 for Justin.
See W. Va. Code § 51-2A-14(a)
(2001) (Supp. 2003) (The circuit court may refuse to consider the petition
for appeal, may affirm or reverse the order, may affirm or reverse the order
in part or may remand the case with instructions for further hearing before
the family court judge.).
At the time the circuit court entered
its December 4, 2001, order, the current family court system was not in existence. Effective
January 1, 2002, the Legislature significantly revamped the family courts
of West Virginia by replacing the family law master system with a new system
of family court judges. Delapp v. Delapp, 213 W. Va. 757, 759 n.2,
584 S.E.2d 899, 901 n.2 (2003) (per curiam).
West Virginia Code § 48-11-105
reads in full:
(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 substantial change.
(c) An order that modifies the
amount of child support to be paid shall conform to the support guidelines set
forth in article 13-101, et seq., of this chapter unless the court disregards
the guidelines or adjusts the award as provided for in section 13-702.
(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.
Mr. Ray also cited Rule 49 of the West Virginia Rules
of Practice and Procedure for Family Court. Rule 49 reads in full:
of court shall not be required for filing a petition for modification. A
petition for modification shall be in writing, specify facts which demonstrate
good cause for relief, be filed with the circuit clerk, and sent to all parties.
Within five days of the filing of a petition for modification the circuit
clerk shall notify the family court. If a petition for modification is filed
in a closed case, the petition shall be filed with three copies of a case
information statement, and served on all parties. Within five days of receipt
of a petition for modification the family court shall send a scheduling order
to all parties.
Under W. Va. Code § 58-5-4
(1998) (Supp. 2003), a party generally has four months from the entry date
of a final order in which to petition for appeal to this Court.
Although the final order was entered
by the circuit court, and not the family court, W. Va. Code § 51-2A-10(a)
could have been used because [e]ffective January 1, 2002, all family
court cases pending before the circuit court, whether on review of recommended
order or otherwise, [were] transferred to the jurisdiction of the family
court. Rule 3(b), West Virginia Rules of Practice and Procedure for
W. Va. Code § 48-11-105 and
W. Va. Code § 51-2A-10(a) require different standards of proof. Under
W. Va. Code § 48-11-105, the dispositive factor is a showing of substantial
change in circumstances, whereas W. Va. Code § 51-2A-10(a) requires
proof of (1) mistake, inadvertence, surprise, excusable neglect or unavoidable
cause; (2) newly discovered evidence; (3) fraud, misrepresentation or other
misconduct of an adverse party; (4) clerical or other technical deficiencies
contained in the order; or (5) any other reason justifying relief.
During oral arguments counsel for
Mr. Ray admitted that, prior to filing the petition for modification, Mr.
Ray did not file a petition for appeal of the December 4, 2001, order with
Even prior to the enactment of W.
Va. Code § 51-2A-10(a), litigants could not invoke W. Va. Code § 48-11-105
to challenge a child support order before the expiration of the appeal period.
Instead, the decisions of this Court permitted litigants to challenge an appealable
domestic relations final order through a motion under Rule 60(b) of the West
Virginia Rules of Civil Procedure. See, e.g., Delapp v. Delapp,
213 W. Va. 757, 584 S.E.2d 899 ( 2003) (per curiam); Wooten v. Wooten,
203 W. Va. 686, 510 S.E.2d 760 (1998) (per curiam); Kapfer v. Kapfer,
187 W. Va. 396, 419 S.E.2d 464 (1992) (per curiam); Pauley v. Pauley,
164 W. Va. 349, 263 S.E.2d 897 (1980) (per curiam). Rule 60(b) provides
a basis for relieving a party from a final judgment upon the following grounds:
(1) mistake, surprise, excusable neglect, or unavoidable cause; (2) newly discovered
evidence; (3) fraud, misrepresentation, or misconduct; (4) the judgment is
void; (5) the judgment has been satisfied or vacated; or (6) any other reason
justifying relief. Syl. pt. 1, Savas v. Savas, 181 W. Va. 316,
382 S.E.2d 510 (1989). Mr. Ray did not avail himself of Rule 60(b) while the
case was still under the jurisdiction of the circuit court, i.e., before
January 1, 2002. Moreover, as a result of the enactment of W. Va. Code § 51-2A-10(a),
Rule 60(b) is no longer the appropriate procedure for challenging a final domestic
relations order prior to the expiration of the appeal period. This is because the grounds for relief
under W. Va. Code § 51-2A-10(a) are almost identical to those contained
in Rule 60(b).
We have held that other procedural
remedies cannot substitute for an appeal. See, e.g., Syl. pt. 3, Hustead
on Behalf of Adkins v. Ashland Oil, Inc., 197 W. Va. 55, 475 S.E.2d 55 (1996)
(A declaratory judgment action can not be used as a substitute for
a direct appeal.); Syl. pt. 3, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996) (Prohibition . . . may not
be used as a substitute for [a petition for appeal] or certiorari.);
Syl. pt. 2, Nancy Darlene M. v. James Lee M., 195 W. Va. 153, 464 S.E.2d
795 (1995) (Rule 60(b)(5) of the West Virginia Rules of Civil Procedure
. . . is not to be invoked as a substitute for an appeal.); State
ex rel. Phillips v. Legursky, 187 W. Va. 607, 608, 420 S.E.2d 743, 744 (1992)
(Traditionally, we have held that habeas corpus is not a substitute
for an appeal[.]); North v. West Virginia Board of Regents, 160 W.
Va. 248, 259, 233 S.E.2d 411, 418 (1977) ([C]ertiorari is not a substitute
for an appeal or writ of error.); State ex rel. Cooper v. Garvin, 139
W. Va. 845, 849, 82 S.E.2d 612, 615 (1954) (Mandamus will not be utilized
as a substitute for an appeal or writ of error.).
Assuming, for the sake of discussion,
that a petition for modification could have been brought under W. Va. Code § 48-11-105,
the family court's ruling would still have to be reversed. This is because,
in modifying the child support order, the family court permitted Mr. Ray
to relitigate the findings made regarding his income for periods that were
determined in the December 4, 2001, order. Specifically, Mr. Ray alleged
in his petition that he did not have actual income in the year 2001[.] Insofar
as Mr. Ray did not appeal the December 4, 2001, order, his income status
in 2001 could not be reopened in a modification proceeding under W. Va. Code § 48-11-105.
In other words, had the matter been properly before the family court, the
family court would have had to accept, under the doctrine of res judicata,
the 2001 determination of Mr. Ray's income status. See Pelliccioni v. Pelliccioni,
214 W. Va. 28, 36, 585 S.E.2d 28, 36 (2003) (per curiam) (Accordingly,
in calculating child support in this instance, the FLM was bound by the previous
final orders entered in this case which set forth Mr. Pelliccioni's income
for prior years.).
Had Mr. Ray invoked W. Va. Code § 51-2A-10(a),
the family court was still without jurisdiction to enter the order, as it
did, on February 11, 2003. This is because W. Va. Code § 51-2A-10(b)
expressly provides that [t]he family court must enter an order ruling
on the motion within thirty days of the date of the filing of the motion. (Emphasis
added.) This thirty day window for ruling on a motion for reconsideration
is mandatory because a motion for reconsideration does not toll the
time for appeal. Rowan v. McKnight, 184 W. Va. 763, 764 n.2, 403 S.E.2d
780, 781 n.2 (1991). Thus, insofar as Mr. Ray filed his petition on January
, if the matter had been brought as a motion for reconsideration
under W. Va. Code § 51-2A-10(a), the family court was statutorily required
to enter an order ruling on the matter by February 3, 2002. As indicated,
the family court did not enter an order on the petition until February 11,
2003_well beyond the limited jurisdictional period granted by W. Va. Code § 51-2A-10(b).
Of course, we understand that, as a practical matter, the family court was
not fully operational when Mr. Ray sought to challenge the child support
order. However, this fact did not preclude Mr. Ray from filing a petition
for appeal with this Court.
To the extent this Court could have
actually addressed the merits of the family court's decision, we would have
reversed that decision on the merits. Modification of child support under W.
Va. Code § 48-11-105(b) requires showing a substantial change in
circumstances[.] In this proceeding, Mr. Ray contended that between the
period December 4, 2001, when the child support order was entered, and January
3, 2002, when he filed his petition (roughly thirty days), a substantial change
occurred in his income status. No facts were presented to show any substantial
change in his income status during this roughly thirty day period. In fact,
the record indicates that at the time of the modification request, Mr. Ray
had assets in excess of two million dollars. It is of no moment to this Court
that Mr. Ray may have voluntarily or involuntarily ceased his employment before
or after the December 4th
order. For the purposes of his child support
obligations, he had and still has assets sufficient to pay the required child
support, such that income could be attributed to him. See Syl.
pt. 4, Porter v. Bego, 200 W. Va. 168, 488 S.E.2d 443 (1997) ('Attributed
income' means income not actually earned by a parent, but which may be attributed
to the parent because he or she is unemployed, is not working full time, is
working below full earning capacity, or has non-performing or under-performing
assets. Attributed income consists of moneys which a support obligor should
have earned had he or she diligently pursued reasonable employment opportunities, or reasonably utilized, applied, or invested
his or her assets.); W. Va. Code § 48-1-205 (2001) (defining attributed
income). If Mr. Ray chooses not to work, his assets can be voluntarily or
involuntarily made liquid so as to pay his child support obligations.
The family court's February 11,
2003, order addressed additional issues that are not before this Court. Consequently,
our decision in this case does not affect the validity of the additional
issues resolved by that order.