Rory Perry: Topics-Family

First seven opinions of the September 2008 term

Thu, 16 Oct 2008 13:48:15 GMT

Summaries of the first seven opinions issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment.

The final day of arguments in the September term of court is Tuesday, October 29.

ABUSE & NEGLECT :: Grandparent visitation

Thu, 16 Oct 2008 13:42:15 GMT

IN RE: SAMANTHA S. AND HOPE S., No. 33713 (Per Curiam)(Sept. 26, 2008). Granting mixed relief from an order of the Circuit Court of Mingo County that terminated parental rights and awarded physical custody to the paternal grandparents. Holding that the circuit court correctly terminated parental rights and awarded custody to the paternal grandparents. Holding that the circuit court erred in granting unsupervised visitation to the maternal grandparents, and remanding for entry of an order terminating the visitation rights of the maternal grandparents.

Jnauary term opinions summarized

Wed, 16 Jul 2008 17:49:23 GMT

Posted today were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.

CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.)

ABUSE & NEGLECT :: GAL request to amend petition

Wed, 16 Jul 2008 17:46:19 GMT

IN RE: SUMMER D., No. 33386 (Per Curiam)(February 26, 2008). Reversing an order of the Circuit Court of Brooke County that denied a motion by the guardian ad litem to amend an abuse & neglect petition. Holding that the circuit court erred in denying the motion to amend, because reasonable cause to believe additional abuse and neglect is imminent, but not encompassed by the allegations of the petition. Holding that the record is insufficient to determine the ability of the father to parent the child. Remanding for further proceedings.

ABUSE & NEGLECT, GUARDIANSHIP :: Infant guardianship, overlap

Wed, 16 Jul 2008 17:45:26 GMT

IN RE: ABBIGAIL FAY B., No. 33716 (DAVIS, J.)(May 23, 2008). Affirming an order of the Circuit Court of Cabell County that denied an infant guardianship petition sought by the maternal grandparents, and returned the child's custody to her biological parents. Concluding that the circuit court properly determined that the appellants did not carry their burden of proving that the child was abused or neglected and failed to show that the biological mother was not a fit parent. Clarifying the circumstances in which a guardian may be appointed, and addressing aspects of Family Court Rule 48a, wherein allegations of abuse and neglect arise in family court and are subsequently transferred to circuit court for disposition.

CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support

Wed, 16 Jul 2008 17:36:25 GMT

STATE v. DAVID GABRIEL STAMM, No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial.

FAMILY, PROCEDURE :: Home state under U.C.C.J.E.A.

Wed, 16 Jul 2008 17:22:12 GMT

ROSEN v. ROSEN, No. 33437 (BENJAMIN, J.)(June 26, 2008). Affirming an order of the Circuit Court of Monongalia County that affirmed a family court ruling that retained jurisdiction over child custody matters. Construing application of the Uniform Child Custody Jurisdiction and Enforcement Act, and setting forth guidance for the term "home state" as used therein. Holding that the family court properly concluded that West Virginia is the home state, and because Ohio did not have jurisdiction, the family court did not violate the full and faith and credit clause by ignoring the Ohio court's order.

FAMILY :: Child support calculation under different parenting arrangements

Wed, 16 Jul 2008 17:20:54 GMT

SOULSBY v. SOULSBY, No. 33661 (DAVIS, J.)(April 4, 2008). Granting mixed relief from an order of the Circuit Court of Putnam County that denied a petition for appeal from a family court order setting child support. Holding that the family court has authority to deviate from the statutory child support guidelines in certain circumstances. Holding that strict application of the child support guidelines results in an inequitable result where, as here, one parent has physical custody of two children, but the children are governed by two separate parenting arrangements. Holding that the child support obligation should be reduced by the percentage of time spent by the obligor parent under the extended shared parenting arrangement. Strongly urging the Legislature to provide guidance on this issue.

FAMILY, CONTEMPT, PROCEDURE :: Contempt sanctions properly imposed by family court

Wed, 16 Jul 2008 17:20:07 GMT

DEITZ v. DEITZ, No. 33446 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Gilmer County that affirmed a family court's determination that Mr. Deitz was in contempt, but reversed the contempt sanctions and remanded with instructions. Holding that the circuit court lacked jurisdiction to issue a sua sponte stay of the family court's order. Holding that the circuit court properly exercised jurisdiction over the timely appeal, but improperly modified the conditions attached to the contempt order; in light of the facts of the case, the short time periods to purge the contempt were not unreasonable. Further holding that the circuit court erred in determining that the family court failed to consider Mr. Deitz's ability to pay, in light of the evidence in the record, and further in light of Mr. Deitz's lack of proof on that issue. Finally holding that the circuit court erred in reversing the family court's sanction of imprisonment. Remanding with specific directions.

FAMILY, PROCEDURE :: Certificate of service on petition is mandatory

Wed, 16 Jul 2008 17:19:08 GMT

GUIDO v. GUIDO, No. 33599 (Per Curiam)(Albright, J., and Starcher, J., dissenting)(June 18, 2008). Affirming an order of the Circuit Court of Marion County that denied a petition for appeal from a decretal judgment for child support arrearages in the total amount of $22,767.17, on the basis that the petition was not properly completed. Holding that the requirement of service in W.Va. Code 51-2A-11(b) is mandatory, and that lack of a certificate of service upon the obligee and the Bureau for Child Support Enforcement is violation of a mandatory requirement, not a mere technical violation of procedural rules.

FAMILY, PROCEDURE :: Appeal period is not jurisdictional

Wed, 16 Jul 2008 17:12:45 GMT

CREA v. CREA, No. 33656 (MAYNARD, C.J.)(June 18, 2008). Affirming an order of the Circuit Court of Jefferson County that denied a petition for appeal from a family court final order. Holding that the family court properly allocated marital debt between the parties, properly denied a credit for reduction in mortgage principle, and properly awarded alimony. Clarifying the Court's prior holding in WASHINGTON v. WASHINGTON, 221 W.Va. 224, 654 S.E.2d 110 (2007), and holding that the thirty-day appeal deadline set forth in Family Court Rule 28(a) is not jurisdictional, and may be extended for good cause. The petition under consideration was not timely filed, an no motion seeking an extension was presented. Accordingly, the circuit court's decision is correct.

FAMILY, PROPERTY :: Transfer of real estate prior to final divorce order

Wed, 16 Jul 2008 17:11:38 GMT

WHITESIDE v. WHITESIDE, et al., No. 33514 (MAYNARD, C.J.)(Benjamin, J., disqualified)(Judge Alsop, by temporary assignment)(May 28, 2008). Reversing an order of the Circuit Court of Kanawha County that denied an appeal from family court in which the appellant sought to void a deed conveying her ex-husband's share of certain marital property to the intervenor below, Equity Holdings, LLC. Setting forth criteria for evaluating whether a transfer of property prior to the effective date of a final order of equitable distribution is valid. Because Equity Holdings had actual notice of the divorce proceedings and also knew of the appellant's intention to make claims against her ex-husband's share of the property, Equity Holdings is not a bona fide purchaser. Further holding that Mr. Whiteside's actions clearly establish an intent to avoid application of the equitable distribution statutes. Remanding for entry of an order voiding the deed, and for determination of a reasonable amount of attorney fees, pursuant to West Virginia Code 48-5-611(c), from either Mr. Whiteside or Equity Holdings, or from both jointly and severally.

FAMILY :: Attorney fees and expert witness costs, intransigence

Fri, 01 Feb 2008 18:57:49 GMT

LANDIS v. LANDIS, No. 33333 (Per Curiam)(November 8, 2007). Reversing an order of the Circuit Court of Raleigh County that denied a request for attorney's fees and expert witness costs exceeding $300,000 in a divorce proceeding. Holding that the lower courts erred in relying solely on the appellant's ability to pay. After considering the entire record, concluding that there is substantial merit in the assertion that the appellee's intransigence increased the cost of litigation, and ordering the appellee to be responsible for one-half of all the appellant's attorney and expert witness fees and costs.

FAMILY :: Enterprise goodwill

Fri, 01 Feb 2008 18:56:29 GMT

HELFER v. HELFER, No. 33348 (Per Curiam)(November 8, 2007)(Rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Ohio County that denied a petition for appeal from a family court order regarding equitable distribution. Holding that the family court in failing to take into account the intangible asset of enterprise goodwill in the chiropractic practice. Remanding for further proceedings.

FAMILY :: Care givers were not psychological co-parents

Fri, 01 Feb 2008 18:54:51 GMT

IN RE: VISITATION AND CUSTODY OF SENTURI N.S.V, No. 33334 (Per Curiam)(October 25, 2007). Reversing an order of the Circuit Court of Cabell County that affirmed a family court ruling that the appellees, who sometimes cared for the child, were psychological co-parents of the minor child and had a shared parenting arrangement with the mother. Holding that simply caring for a child is not enough to bestow upon a care giver psychological parent status. Further commenting on the lower courts' complete and utter disregard of the mother's parental rights, remanding for restoration of full custodial rights.

FAMILY, ABUSE & NEGLECT, ADOPTION :: Voluntary relinquishment of parental rights

Fri, 01 Feb 2008 18:53:57 GMT

IN RE: CESAR L., No. 33317 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 24, 2007). Affirming orders of the Circuit Court of Berkeley County that:(1) determined a mother lacked standing to request a modification of disposition under W. Va. Code 49-6-6 because she had voluntarily relinquished her parental rights; and (2) found that the mother's relinquishment was voluntary and free of fraud and duress and was therefore a valid voluntary relinquishment under W. Va. Code 49-6-7. Setting forth six new syllabus points, and holding that voluntary relinquishment acts as a complete forfeiture of parental status.

FAMILY, CHILD SUPPORT :: Accrual of child support by incarcerated persons

Fri, 01 Feb 2008 18:52:55 GMT

ADKINS v. ADKINS, No. 33312 (ALBRIGHT, J.)(November 8, 2007). Granting mixed relief from an order of the Family Court of Cabell County, in a direct appeal from family court. In syllabus points 3 through 8, setting forth significant guidance for determining the support obligation of an incarcerated person, including a determination that this obligation should be set in light of that person's actual earnings while incarcerated and other assets practically available to provide support.

FAMILY, PROCEDURE :: Alimony arrearage suit not barred

Fri, 01 Feb 2008 18:51:58 GMT

CHILD SUPPORT ENF. DIV. and VARNEY v. VARNEY, No. 33332 (Per Curiam)(Maynard, J., disqualified)(Janes, Judge, by temporary assignment)(November 21, 2007). Reversing an order of the Circuit Court of Mingo County that denied an appeal from a family court order that determined the statute of limitations applies to bar a suit to enforce a decretal judgment for alimony arrearages. Holding that because a writ of execution was issued within the ten-year statute of limitations attached to the decretal judgment, the statute began to run anew from the return day of the execution.

FAMILY, PROCEDURE, EQUITY :: Unclean hands

Fri, 01 Feb 2008 18:51:02 GMT

FOSTER v. FOSTER, No. 33301 (Per Curiam)(November 20, 2007). Reversing an order of the Circuit Court of Raleigh County that determined that a petition to recover overpayment of just under $3,500 in child support was filed outside the statute of limitations. Declining to reverse on grounds asserted, instead applying the equitable doctrine of unclean hands to preclude recovery, where the appellee was previously able to avoid paying over $30,000 in child support by successfully asserting that the appellant was barred from collecting on the decretal judgment that was more than ten years old.

FAMILY, PROCEDURE :: Timeliness of appeal to circuit court

Fri, 01 Feb 2008 18:49:54 GMT

WASHINGTON v. WASHINGTON, No. 32980 (Per Curiam)(October 26, 2007). Affirming an order of the Circuit Court of Harrison County that refused a family court appeal on the basis of having been untimely filed. Holding that the circuit court properly raised, sua sponte, the timeliness of the appeal, which was filed one day beyond the thirty-day deadline. Although an opinion letter was late in being made a part of the official court file, the litigant had the letter in his possession, so the letter's late arrival to the court record had no impact on the ability to timely file an appeal. Finding no evidence that the pro se party, who later obtained counsel, was improperly hindered in exercising his right to access the courts.

TORTS, PENSIONS, FAMILY :: Improper distribution prior to retirement

Fri, 01 Feb 2008 15:43:32 GMT

BROWN v. CITY OF FAIRMONT, et al., No. 33354 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Marion County that granted summary judgment for defendants in an action alleging improper distribution of a fireman's pension to the fireman's ex-wife. Holding that distribution of proceeds to alternate payee prior to retirement was improper because clear statutory requirements had not been met. Affirming the circuit court's determination with regard to allegations of breach of fiduciary duty and related claims.

Updates

Thu, 31 Jan 2008 12:56:51 GMT

Throughout the day, I'll be posting the summaries of all 58 opinions issued in the September 2007 term of court. All told, there were 42 per curiam opinions and 16 signed opinions.

First six opinions of September 2007 term

Fri, 12 Oct 2007 19:40:26 GMT

The first six opinions of the September 2007 term of court were released today, and are available at this link.

Summaries of all January 2007 opinions posted - corrected

Tue, 28 Aug 2007 13:54:59 GMT

Summaries of all 62 opinions issued in the January 2007 term of court are now posted. The summaries are in three groups. Issue 91, posted on March 2, 2007, contains summaries of the first ten opinions of the term. Issue #92, posted August 22, contains summaries of 45 opinions. Finally, Issue #93, posted August 28, contains seven opinion summaries that were inadvertently omitted from Issue #92.

The opinion summaries are also available on three general category pages: Civil, Criminal, and Family.

The first court day of the September term will take place on September 11th, with a Motion Docket and Argument Docket. Most of the dockets and briefs are now posted on the September calendar page.

FAMILY :: Vacating post-majority college expense obligations without agreement

Wed, 22 Aug 2007 18:07:45 GMT

CAROLE E. DAMRON SHORTT v. FREDERICK CECIL DAMRON, No. 33185 (STARCHER, J.)(May 11, 2007). Former husband appealed an order of the Circuit Court of Kanawha County that affirmed a family court decision requiring him to pay expenses for the post high school education of his child. Clarifying the relationship between two versions of a statute relating to such orders in syllabus point 2: "W.Va. Code, 48-2-15d [1993] was amended in 1994 (using language now codified at W.Va. Code, 48-11-103(c) [2002]) to authorize courts to vacate the provisions of certain divorce orders entered under the authority of W.Va. Code, 48-2-15d [1993] that required a parent to pay for a child's post-majority college expenses without the agreement of the parent." Holding that the order in question was not subject to vacation, and therefore declining to reach the issue of whether the separation agreement was enforceable.