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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
PATRICIA A. COTTRILL (NOW FAGAN),
Plaintiff Below, Appellee
DOUGLAS D. COTTRILL,
Defendant Below, Appellant
Appeal from the Circuit Court of Harrison County
Honorable Thomas A. Bedell, Judge
Civil Action No. 80-C-385-4
REVERSED AND REMANDED
Filed: May 12, 2006
Michael F. Niggemyer, Esq.
White Hall, West Virginia
Attorney for Appellant
Patricia A. Fagan
Pro se Apellee
| Kimberly D. Bentley, Esq.
Charleston, West Virginia
Attorney for Appellee, Bureau of Child Support Enforcement
The Opinion of the Court was delivered PER CURIAM.
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. Syl. Pt., Carr
v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
West Virginia Constitution art. III, § 17, the right of self-representation
in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably
denied. Syl. Pt. 1, Blair v. Maynard, 174 W. Va. 247, 324 S.E.2d
ten-year statute of limitations set forth in W. Va. Code, 38-3-18 
and not the doctrine of laches applies when enforcing a decretal judgment which
orders the payment of monthly sums for alimony or child support. Syl. Pt.
6, Robinson v. McKinney, 189 W. Va. 459, 432 S.E.2d 543 (1993).
case is before the Court on appeal from the December 14, 2004, Order of the Circuit
Court of Harrison County refusing Appellant Douglas D. Cottrill's pro se petition
for appeal from the November 3, 2004, Order of the Family Court of Harrison County
resolving a contempt issue in favor of Appellee Patricia A. Cottrill Fagan and
Appellee Bureau of Child Support Enforcement and ordering Appellant to pay $9,504.25
in child support arrearage. This Court has before it the petition for appeal,
the response, the briefs of the parties, and all matters of record. Following
the arguments of the parties and a review of the record herein, this Court finds
that the circuit court erred in refusing Appellant's petition for appeal. Accordingly,
this Court reverses the December 14, 2004, Order of the circuit court and remands
the matter for entry of an order consistent with this opinion.
Douglas D. Cottrill and Appellee Patricia A. Cottrill were married on October
29, 1966. During their marriage, the couple had three children: Kim, born February
14, 1967; Kevin, born September 15, 1972; and Jessica, born October 10, 1976.
After 14 years of marriage, the Cottrills were divorced in September, 1980.
At the time of the divorce, the children were ages 13, 8 and 3, respectively.
Mrs. Cottrill was granted custody of the children, and Mr. Cottrill was ordered
to pay child support in the amount of
sixty dollars per child, per month.
12, 1988, the circuit court entered an Order adopting the recommendation of the
then-Family Law Master that Mr. Cottrill's income be subject to withholding for
child support arrearage. At that time, the children were ages 21, 15, and 11,
respectively. It was found that an arrearage in the amount of $11,100.00 had
accumulated. Because one of the Cottrill's three children had reached the age
of majority, only $120 per month was ordered to be withheld for monthly child
support. (See footnote 1)
10% of Mr. Cottrill's monthly disposable income was withheld to be applied to
29, 2004, over nine years after the Cottrill's last child had reached the age
of majority, the Family Court of Harrison County entered an Order to Show Cause
in response to the Bureau of Child Support Enforcement's (hereinafter, the BCSE)
petition alleging Mr. Cottrill's contempt for failure to pay child support. That
petition alleged that an arrearage of $40,349.09 had accumulated. A hearing on
the matter was originally scheduled for April 21, 2004, but was rescheduled to
October 27, 2004. Mr. Cotrill, appearing pro se
, maintained that he paid
child support directly to Mrs. Cottrill and/or the couple's children. Mrs. Cottrill,
however, asserted that she was not paid by Mr. Cottrill and
that she had no knowledge of whether he ever paid the children. (See
Mr. Cottrill could not produce any documentation of
payment, but explained at the April 21, 2004, hearing:
This many years, I'd never be able to keep anything this long. Where I did
have some papers, all my military stuff and everything else burned down about
four or five years ago; six years ago. I have no way to prove anything. And
I couldn't afford to have a lawyer come up here with me, and I wouldn't have
anything to give him to back me up anyway. I don't have anything.
Mr. Cottrill maintained, though, that he generally paid his child
support payments. He also asserted that $1200 in child support had been intercepted
from money due to him.
Order of November 3, 2004, the family court determined that because the Child
Support Advocate Office was not created until late 1986, January 1, 1987, would
be a reasonable starting date for the purpose of calculating any
arrearage. The family court's order further stated, The defense of the
Statute of Limitations has not been raised by Douglas D. Cottrill, and the court
does not do so now. Based on the calculations of the BCSE for the period
of January 1, 1987, through September 30, 2004, the family court ordered Mr.
Cottrill to pay principal child support arrears of $7,190 with interest in the
amount of $2314.25, for a total of $9,504.25. The court found no contempt.
again acting pro se, filed an appeal before the circuit court on November
16, 2004. In that appeal, Mr. Cottrill, seizing on language contained in the
family court's Order, raised the issue of the statute of limitations, arguing
that such a defense was not known to him until the family court mentioned it
in its order. He also argued that the family court's Order created an undue financial
burden on him. Neither Mrs. Cottrill nor the BCSE filed a response to the petition.
After examining the record, the circuit court refused the petition for appeal.
Specifically, the circuit court determined that the Statute of Limitations
is an affirmative defense which must affirmatively be raised either prior to
the hearing in the party's pleadings or at the hearing by way of amendment of
the pleadings. The circuit court concluded that because Mr. Cottrill did
not raise the defense prior to or during the hearing before the family court,
it could not now consider the defense on appeal. The circuit court further found
that the family court had not otherwise erred or abused its discretion. Mr. Cottrill
STANDARD OF REVIEW
Court has previously held that [i]n 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. Syl. Pt., Carr v. Hancock, 216 W. Va.
607 S.E.2d 803 (2004). See also, Syl. Pt. 2, Lucas v. Lucas,
215 W. Va. 1, 592 S.E.2d 646 (2003).
again find ourselves faced with issues that arise when a pro se litigant
finds his or her rights potentially compromised by his or her unfamiliarity
with the law. We have recognized that [u]nder West Virginia Constitution
art. III, § 17, the right of self-representation in civil proceedings
is a fundamental right which cannot be arbitrarily or unreasonably denied. Syl.
Pt. 1, Blair v. Maynard, 174 W. Va. 247, 324 S.E.2d 391 (1984).
At the same time, we have recognized that a pro se litigant's other
rights under the law should not be abridged simply because he or she is unfamiliar
with legal procedures. To that end, we have advised that the trial court
must 'strive to insure that no person's cause or defense is defeated solely
by reason of their unfamiliarity with procedural or evidentiary rules.' Bego
v. Bego, 177 W. Va. 74, 76, 350 S.E.2d 701, 703-704 (1986) (citing Blair
v. Maynard, 174 W. Va. 247, 252-253, 324 S.E.2d 391, 395-396). We
believe that this is such a case. Because of his unfamiliarity with the law
and civil procedure, Mr. Cottrill now finds himself in a situation where he
may be forced to pay a child support arrearage which would otherwise be deemed
long ago barred by the statute of limitations.
case, the initial child support obligation was imposed on September 2,
1980. Eight years later, another Order was entered which approved the withholding
of income from Mr. Cottrill due to child support arrearage. But it was another
fifteen-and-a- half years after that_and twenty-four years after the initial
obligation was imposed_before the BCSE attempted to take any further action
on the arrearage. At that point, the couple's children were 37, 31, and 27,
respectively, and the statute of limitations on the obligation had expired.
long been our law that [o]n a judgment, execution may be issued within
ten years after the date thereof. West Virginia Code § 38-3-18 (1923).
We have also found that this statute of limitations specifically applies to child
support cases just as it does in other cases, holding: The ten-year statute
of limitations set forth in W. Va. Code, 38-3- 18  and not the doctrine
of laches applies when enforcing a decretal judgment which orders the payment
of monthly sums for alimony or child support. Syl. Pt. 6, Robinson v.
McKinney, 189 W. Va. 459, 432 S.E.2d 543 (1993).
of limitations is an affirmative defense which must be pled in a responsive pleading.
West Virginia Rule of Civil Procedure 8(c). Mr. Cottrill did not file an answer
to the BCSE's Petition for Order to Show Cause, so he did not plead the affirmative
defense of the statute of limitations. Indeed, he was apparently unaware that
such a defense even existed until the family court mentioned the statute of limitations
in its Order
of November 3, 2004. Accordingly, Mr. Cottrill did not specifically raise the
defense until his appeal to the circuit court.
benefit of counsel, Mr. Cottrill asserts that although he did not affirmatively
plead the defense, he did allude to it during the hearing before the family court.
That is, he indicated to the family court that he had made payments, but, due
to the passage of time and a fire in his home, he was now unable to provide documentation
of such payments. Mr. Cottrill argues that, knowing that the statute of limitations
was an issue in the case and knowing that Mr. Cottrill was unfamiliar with the
law, the family court should have made reasonable accommodations to assist him
in protecting his rights.
on the other hand, argues that a pro se litigant must bear the responsibility
for and accept the consequences of his or her mistakes. Furthermore, the BCSE
contends that it is not up to a court to become a surrogate attorney for
a pro se litigant. Indeed, the BCSE argues, a court is not permitted to
assert affirmative defenses for pro se litigants.
with the BCSE that there exists a line between accommodating a pro se litigant
and advocating for a pro se litigant which courts cannot cross. The court's
approach should be one of balance. Thus, we have held that:
courts possess a discretionary range of control over parties and proceedings
which will allow reasonable accommodations to pro se litigants without
resultant prejudice to adverse parties. Pro se parties, like other litigants,
should be provided the opportunity to have their cases 'fully and fairly heard
so far as such latitude is consistent with the just rights of any adverse party.' Conservation
Commission v. Price, 193 Conn. 414, 479 A.2d 187, 192 n. 4 (1984). Blair
v. Maynard, 174 W. Va. 247, 252, 324 S.E.2d 391, 396 (1984).
we believe that a reasonable accommodation could have been made to
Mr. Cottrill on appeal to the circuit court. At that time, Mr. Cottrill asserted
the defense of the statute of limitations. While the circuit court correctly
recognized that the statute of limitations is an affirmative defense which should
be pled in a responsive pleading and not on appeal, we find that the BCSE would
not have been prejudiced if the circuit court had granted the appeal and considered
the statute of limitations argument since the BCSE had no rights to prejudice
at that point due to the expiration of the statute of limitations. Likewise,
we see no reason in equity to countenance the BCSE's delay in this matter.
find that it would not have been improper for the circuit court to consider the
defense on appeal because, though it was not formally raised in the record below,
Mr. Cottrill did allude to the defense in his testimony before the family court
when he referenced the passage of time in explaining why he was not able to show
proof of any payments. We have held that '[a] skeletal argument, really
nothing more than an assertion, does not preserve a claim.... Judges are not
like pigs, hunting for truffles buried in
briefs.' United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991);
accord Teague, 35 F.3d at 985 n. 5; State v. Honaker, 193 W. Va.
51, 56 n. 4, 454 S.E.2d 96, 101 n. 4 (1994). State, Dept. of Health
and Human Resources, Child Advocate Office on Behalf of Robert Michael B. v.
Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995).
However, in the specific circumstances of this case, where a pro se litigant
does not have the legal training to recognize and put the correct name to an
absolute defense before him, we find that a skeletal argument is
enough to preserve a claim for appeal, especially where the court can recognize
the defense for itself, which the family court clearly did as noted in its
is not a new notion. In Hedrick v. Hedrick, 218 W. Va.116, 624 S.E.2d
463 (2005), we held that it is sufficient for a party to informally plead the
statute of limitations. Perhaps Mr. Cottrill did not plead the statute of limitations
as clearly as Mr. Hedrick, who specifically noted the statute of limitations
in a letter to the family court, but he alluded to it nonetheless, noting how
much time had passed and the difficulty that passage posed in proving the payment
of child support. And after all, as we stated in Blair v. Maynard:
court must not overlook the rules to the prejudice of any party. The court should
strive, however, to ensure that the diligent pro se party does not forfeit
any substantial rights by inadvertent omission or mistake. Cases should be decided
on the merits, and to that end, justice is served by reasonably accommodating
all parties, whether represented by counsel or not. This 'reasonable accommodation'
is purposed upon protecting the meaningful exercise of a litigant's constitutional
right of access to the courts. 174 W. Va. 247, 253, 324 S.E.2d 391,
There can be no doubt that, in this case, Mr. Cottrill forfeited substantial
rights when he failed to formally assert the defense of the statute of limitations.
Therefore, the circuit court should have come to Mr. Cottrill's aid by hearing
Mr. Cottrill's appeal of the family court order.
established that Mr. Cottrill has a valid defense in the statute of limitations,
that his status as a pro se litigant put him at a great disadvantage
in protecting his rights, and that the BCSE would not be prejudiced, we find
that the circuit court should have made reasonable accommodations to protect
Mr. Cottrill and his rights. Accordingly, this matter is reversed and remanded
to the lower court for entry of an order consistent with this opinion.
Reversed and remanded.
Footnote: 1 According
to the record, the Cottrill's second child reached the age of majority in 1990,
and their last child reached the age of majority in 1994.
Footnote: 2 The
family court notes in its Order that Mrs. Cottrill did not inquire of her children
prior to the hearing whether they had ever received any such payments.