The appellant herein and respondent below, Walter Burke Skidmore
(hereinafter “Mr. Skidmore”), appeals from an order entered June 19, 2008, by the Circuit
Court of Braxton County. By that order, the circuit court refused Mr. Skidmore's petition
for appeal from orders of the Family Court of Braxton County entered May 21, 2008. In
its May 21, 2008, orders, the family court granted the requests of the appellee herein and
petitioner below, Donna Sue Skidmore (now Williams) (hereinafter “Mrs. Skidmore”), (See footnote 1) to
modify custody of the parties' minor child and to retroactively modify child support;
however, the family court denied Mrs. Skidmore's request to prospectively modify child
support. The family court additionally entered judgment against Mr. Skidmore and in favor
of Mrs. Skidmore in the amount of $7,596.48 for retroactive child support. On appeal to
this Court, Mr. Skidmore assigns error to the circuit court's refusal to consider his petition
for appeal and contends that the family court erred by (1) retroactively modifying child
support so as to retroactively increase Mr. Skidmore's child support obligation and (2)
refusing to prospectively modify child support so as to prospectively decrease Mr.
Skidmore's child support obligation. Upon a review of the parties' arguments, the record
designated for appellate consideration, and the pertinent authorities, we conclude that the
family court erred by retroactively modifying Mr. Skidmore's child support obligation.
Accordingly, we reverse that portion of the circuit court's order that refused Mr.
Skidmore's appeal from this ruling and remand this matter to the Circuit Court of Braxton
County for entry of an order reversing the family court's retroactive modification of child
support. We further conclude, however, that the family court did not err by refusing to
prospectively modify child support in favor of Mr. Skidmore, and, therefore, affirm that
portion of the circuit court's order refusing Mr. Skidmore's appeal of that issue.
That the parties should exchange income information, including federal and state tax returns, with all schedules and W-2's, each year by February 15, and, said parties shall report to the BCSE [Bureau for Child Support Enforcement] any change in gross income within 15 days of any significant change in gross income; however, said reporting requirement should not be necessary if the change in gross income is less than a [sic] 15 percent[.][ (See footnote 7) ]
(Footnote added).
On August 29, 2007, Mrs. Skidmore filed a petition for modification of child
custody and child support in the Family Court of Braxton County. In short, the petition
indicated that Janet, who was fifteen years old, wished for her mother to have her sole
custody; the petition additionally sought an increase in child support commensurate with
the change in Janet's custodial placement. (See footnote 8) Mrs. Skidmore's motion to modify the parties'
parenting plan was denied by the family court's temporary order of September 26, 2007;
the court additionally referred Janet to a counselor to examine her desire to change her
custody. Thereafter, the parties attended mediation and counseling.
During the pendency of the aforementioned petition, Mrs. Skidmore filed a
second petition for modification, on January 16, 2008, seeking “back [child] support due
to not working because of health problems and Mr. Skidmore not turning in increase in
income from 2002-2003-2004-2005-2006 and 2007.” In response to this petition, Mr.
Skidmore filed his personal and corporate tax returns for 2006 and 2007. By temporary
order entered March 24, 2008, the family court awarded Janet's sole custody to Mrs.
Skidmore “due to DV [domestic violence] against Father [Mr. Skidmore] by [Mr.
Skidmore's second wife].” Accordingly, the family court awarded Mr. Skidmore
supervised visitation with Janet.
The family court held a hearing on Mrs. Skidmore's petitions on April 24,
2008. By order entered May 21, 2008, entitled “Findings of Fact and Conclusions of Law,”
the family court determined that, as a result of Mr. Skidmore's failure to provide his
updated income information, Mrs. Skidmore was entitled to a retroactive modification of
child support (See footnote 9) in the amount of $7,915.76. (See footnote 10) The family court additionally denied both
parties' request for prospective modification of child support. Mrs. Skidmore's request for
a prospective increase in child support was denied because Mr. Skidmore's income had
decreased. Moreover, Mr. Skidmore's request for a prospective decrease in child support
was denied because of “his failure to actively seek a modification himself either by petition
or a counter-claim.” (See footnote 11)
A second order of the family court entered on May 21, 2008, entitled “Order
Adopting Parenting Plan and Granting Judgement Against Father on Retroactive
Modification,” adopted Mrs. Skidmore's parenting plan, (See footnote 12) granted Janet's sole custody to
Mrs. Skidmore, and permitted Janet to determine her visitation with her father. This order
also entered judgment against Mr. Skidmore, upon Mrs. Skidmore's request for retroactive
modification of child support, in the amount of $7,596.48. (See footnote 13) Finally, this order refused Mrs.
Skidmore's request for prospective modification of child support through which she had
sought an increase in Janet's child support award commensurate with her assumption of
Janet's sole custody.
Mr. Skidmore appealed from these adverse rulings to the Circuit Court of
Braxton County. By order entered June 19, 2008, the circuit court refused Mr. Skidmore's
petition for appeal. From this decision, Mr. Skidmore now appeals to this Court.
“[i]n reviewing a final order entered by a circuit 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).
Syl. pt. 1, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005). Cf. Syl. pt. 2, Lucas
v. Lucas, 215 W. Va. 1, 592 S.E.2d 646 (2003) (“'In reviewing challenges to findings made
by a family court judge that also were adopted by a circuit court, a three-pronged standard
of review is applied. Under these circumstances, a final equitable distribution order is
reviewed 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, Burnside v. Burnside, 194
W. Va. 263, 460 S.E.2d 264 (1995).”). We will apply this standard to our review of the
errors assigned by the parties.
It was not disputed that the Mother [Mrs. Skidmore] had not received corporate or personal tax returns for the Father [Mr. Skidmore] since 2003, until after she filed her second Petition for Modification. The Father claims that he was unaware of the provisions in a prior order requiring such disclosure.
. . . .In calculating the difference between the Child Support Formula, which would have been utilized had the Father's tax returns be[en] available, and the court ordered child support, the Father would owe a total of seven thousand, nine hundred, fifteen dollars and seventy-six cents ($7,915.76)[ (See footnote 14) ] without interest. . . . The[se calculations] take[] into account that the older child Amber would have graduated in the year of 2006. Further noted is the Mother's receipt of State Medical Card due to her disability commencing in 2006. Calculations do not include the sale of equipment in the Father's business in the year of 2006 resulting in an additional twenty-three thousand dollars ($23,000.00) due to the fact of [sic] such selling of equipment was not recurring income.
While generally speaking the Court has no jurisdiction to retroactively modify child support obligations, see Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987), Hudson v. Peck, 183 W. Va. 300, 395 S.E.2d 544 (1990) [(per curiam)], W. Va. [Code] § 48-14-201, and W. Va. Code [§] 48-14-203, our court has permitted retroactive modifications before the filing of a Petition to Modify retroactive to the date of a change of custody, see Supcoe v. Shearer, 204 W. Va. 326, 512 S.E.2d 583 (1998) [(per curiam)], and other circumstances when retroactive modifications were permitted. In this particular case, the last order contained a provision wherein the Father was to give copies to the Mother of his tax returns and associated documents. It was not disputed that he failed to do so. The Mother did not receive them until she filed her second Petition for Modification. Her delay or inaction in seeking a modification of child support could not be deemed a waiver. “In waiver, both knowledge of the fact basic to the exercise of the right and the intent to relinquish that right are essential elements. Since knowing intent is an essential element of true waiver, it can never arise constructively or by implication.[”] 19 MJ Waiver § 3.
(Footnote added). The family court subsequently reduced the amount of retroactive child
support awarded to Mrs. Skidmore in its order entering judgment explaining that,
as regards the Mother's [Mrs. Skidmore's] request for retroactive modification and increase of child support, she is hereby GRANTED a judgement against the Father [Mr. Skidmore] for seven thousand, five hundred, ninety-six dollars and forty-eight cents ($7,596.48), with interest from the entry of this Oder. In granting said judgement, the Court does not allow the Mother the calculated increase which would have resulted for the year of 2003.[ (See footnote 15) ]
(Emphasis in original; footnote added).
Before this Court, Mr. Skidmore argues that the lower courts erred by
retroactively modifying his child support obligation. In rendering its ruling, the family
court relied upon this Court's prior decision in Goff v. Goff, 177 W. Va. 742, 356 S.E.2d
496 (1987), wherein this Court held, in Syllabus point 2, that “[t]he authority of the circuit
courts to modify alimony or child support awards is prospective only and, absent a showing
of fraud or other judicially cognizable circumstance in procuring the original award, a
circuit court is without authority to modify or cancel accrued alimony or child support
installments.”
Mr. Skidmore contends, though, that the facts of this case do not comport with Goff, and, thus, the family court erred by basing its retroactive modification of child support
on this authority. In support of his argument, Mr. Skidmore states that the Goff holding
requires the lower court to “have had to make the finding that the failure to disclose
[financial information] was fraudulent on the part of the father, however the Court makes
no such finding.” Mr. Skidmore additionally relies upon this Court's prior decision in Hayhurst v. Shepard, 219 W. Va. 327, 633 S.E.2d 272 (2006), which similarly holds that,
“without fraud on the part of a party, retroactive modification of child support is improper.”
Because the family court did not find that Mr. Skidmore had acted fraudulently, he contends
that the family court could not have, and should not have, retroactively modified his child
support obligation.
By contrast, Mrs. Skidmore responds that the family court's retroactive
modification of Mr. Skidmore's child support obligation was proper insofar as he failed to
disclose his income information from 2002 to 2007 in direct contravention of the court's
earlier order directing him to do so. Moreover, Mrs. Skidmore contends that the circuit
court properly refused Mr. Skidmore's appeal of this issue.
The issue that is raised by this assignment of error concerns whether a court
may retroactively modify an existing child support obligation. Generally speaking, child
support orders are subject to modification, and the procedure for seeking such a
modification is governed by statute. W. Va. Code § 48-11-105 (2001) (Repl. Vol. 2009)
provides, in pertinent part:
(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 section one hundred one [§ 48-13-101], article thirteen, et seq., of this chapter unless the court disregards the guidelines or adjusts the award as provided in section seven hundred two [§ 48-13-702] of said article.
When interpreting a statutory provision, the first step involves ascertaining
the intent of the Legislature in enacting such statute. “The primary object in construing a
statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v.
State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Once the
legislative intent has been determined, the specific words chosen by the Legislature are
examined. Statutory language that is plain must be applied as it is written. “When a statute
is clear and unambiguous and the legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of the courts not to construe but to
apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144
W. Va. 137, 107 S.E.2d 353 (1959). Accord Syl. pt. 2, State v. Epperly, 135 W. Va. 877,
65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.”). However, statutory language that is not plain must be construed before
it can be applied. “Judicial interpretation of a statute is warranted only if the statute is
ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative
intent.” Syl. pt. 1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183
(1983). Accord Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (“A
statute that is ambiguous must be construed before it can be applied.”).
A reading of W. Va. Code § 48-11-105 indicates that the statutory language
is plain and should be applied, and not construed. See Syl. pt. 5, General Daniel Morgan,
144 W. Va. 137, 107 S.E.2d 353. Nevertheless, the statute is silent as to whether child
support modifications may be retroactive or whether they are prospective only. Having
previously considered this issue, this Court, applying this statutory language, has
determined that a family court may modify child support prospectively only unless exigent
circumstances such as fraud or other, equally compelling, factors tainted the procurement
of the initial child support award:
The authority of a family court to modify a spousal support or child support award is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a family court is without authority to modify or cancel accrued alimony or child support installments.
Syl. pt. 2, Hayhurst v. Shepard, 219 W. Va. 327, 633 S.E.2d 272 (2006). Accord Syl. pt. 2, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (1987) (“The authority of the circuit courts
to modify alimony or child support awards is prospective only and, absent a showing of
fraud or other judicially cognizable circumstance in procuring the original award, a circuit
court is without authority to modify or cancel accrued alimony or child support
installments.”). See also Corcoran v. Corcoran, 202 W. Va. 76, 501 S.E.2d 793 (1998) (per
curiam) (refusing to retroactively modify child support obligation); Hudson v. Peck, 183
W. Va. 300, 395 S.E.2d 544 (1990) (per curiam) (same). But see Supcoe v. Shearer, 204
W. Va. 326, 512 S.E.2d 583 (1998) (per curiam) (retroactively establishing child support
award). In Hayhurst, we explained the court's inability to retroactively modify child
support as follows: “[p]ut simply, a court 'lacks the power to alter or cancel accrued
installments for child support.' Syllabus Point 2, Horton v. Horton, 164 W. Va. 358, 264
S.E.2d 160 (1980) (per curiam).” 219 W. Va. at 331, 633 S.E.2d at 276 (additional citation
omitted). Accord Syl. pt. 3, Hayhurst v. Shepard, 219 W. Va. 327, 633 S.E.2d 272 (“A
family court lacks the power to alter or cancel accrued installments for child support.”). See
also Syl. pt. 1, Goff v. Goff, 177 W. Va. 742, 356 S.E.2d 496 (“Matured installments
provided for in a decree, which orders the payment of monthly sums for alimony or child
support, stand as 'decretal judgments' against the party charged with the payments.”); Syl.
pt. 2, Kimble v. Kimble, 176 W. Va. 45, 341 S.E.2d 420 (1986) (“A decretal child support
obligation may not be modified, suspended, or terminated by an agreement between the
parties to the divorce decree.”).
In the proceedings underlying the instant appeal, the family court did not find
that fraud had tainted the procurement of the original child support order or that another
“judicially cognizable circumstance,” Syl. pt. 2, in part, Hayhurst v. Shepard, 219 W. Va.
327, 633 S.E.2d 272, adversely affected the amount of child support initially awarded for
Janet's benefit. Rather, the family court based its retroactive modification of child support
upon Mr. Skidmore's failure to disclose his financial information to Mrs. Skidmore. While
it is undisputed that Mr. Skidmore failed to disclose his income statements from 2002 to
2007, such nondisclosure occurred after “the procur[ement of] the original award,” id., and,
thus, cannot support the retroactive modification of child support that the family court
awarded.
Although the remedies available to Mrs. Skidmore, at the present point in
time, are somewhat limited, Mrs. Skidmore nevertheless could have sought to modify
Janet's child support award prior to the proceedings underlying this appeal through several
different avenues of relief. First, because the lower court specifically ordered “the parties
. . . [to] exchange [their] income information . . . each year by February 15 . . . if the change
in gross income is [more] than . . . 15 percent different,” Mrs. Skidmore could have moved
the court to compel Mr. Skidmore to produce his income information each year he failed
to do so. See W. Va. R. Civ. P. 70 (permitting party to request court to require compliance
with order “direct[ing] a party . . . to deliver . . . documents” and authorizing “[t]he court
. . . [to] adjudge the [noncompliant] party in contempt”). If Mr. Skidmore's income had not
changed by fifteen percent in that particular year, he could have defended against Mrs.
Skidmore's motion on that basis. If, however, Mr. Skidmore's income had changed by
more than fifteen percent in the given year, Mrs. Skidmore then could have moved to
modify the order awarding Janet child support.
Additionally, the lower court's order detailing the parties' ongoing financial
disclosure requirements also referenced, in the same paragraph, the Bureau for Child
Support Enforcement (hereinafter “the Bureau”). The Bureau is statutorily charged with
helping parties to determine if they are entitled to seek a modification of child support, and,
if they are, to assist them with the preparation and filing of a motion to modify the existing
child support order. Pursuant to W. Va. Code § 48-11-106a (2005) (See footnote 16) (Repl. Vol. 2009),
[i]n addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.
Thus, Mrs. Skidmore could have enlisted the assistance of the Bureau to ensure that Mr.
Skidmore was accurately reporting his income and paying the full amount of child support
such income would require. In addition to evaluating the parties' financial information to
determine if a “substantial change in circumstances,” W. Va. Code § 48-11-105(b), had
occurred so as to warrant a modification of child support, the Bureau also could have
assisted Mrs. Skidmore with the filing of her motion for modification.
In summary, we wish to emphasize that, while we do not condone Mr.
Skidmore's actions in ignoring the directives of the lower court to continue to disclose his
income to Mrs. Skidmore, and to the Bureau for Child Support Enforcement, such
dereliction of duty after the establishment of the initial child support obligation is not
sufficient to support a retroactive modification thereof. See Syl. pt. 2, Hayhurst v. Shepard,
219 W. Va. 327, 633 S.E.2d 272. Accordingly, we conclude that the family court erred by
retroactively modifying Mr. Skidmore's child support obligation and that the circuit court
compounded this error by refusing to hear Mr. Skidmore's appeal on this basis. Therefore,
the decision of the circuit court refusing Mr. Skidmore's appeal of this issue is reversed,
and this case is remanded for entry of an order reversing the family court's award of
retroactive child support in the amount of $7,596.48.
the Father [Mr. Skidmore] argues that although he did not file . . . a Petition to reduce his child support obligation, since child support was to be recalculated, he should have the benefit of any such reduction. According to the aforesaid [calculations] from October 2007 through December 2007, his obligation would have reduced more than 15 percent to one hundred, eighty-six dollars and fifty-one cents ($186.51). The Mother [Mrs. Skidmore] opposes that reduction and the Father's Motion was denied for his failure to actively seek a modification himself either by petition or a counter-claim.
In refusing Mr. Skidmore's appeal from this ruling, the circuit court essentially upheld the
family court's decision denying prospective modification of child support.
Before this Court, Mr. Skidmore argues that the lower courts erred by refusing
to prospectively modify his child support obligation when his financial information
demonstrates a change in his calculated support obligation that is greater than fifteen
percent when compared with his child support obligation derived from his prior level of
income. In support of his argument, Mr. Skidmore contends that the governing statute,
W. Va. Code § 48-11-105, does not specify that the party moving for a modification of
child support is the only party that may be granted relief under said motion. Rather, Mr.
Skidmore suggests that, because the governing statute permits a modification of child
support “[i]f application of the guideline would result in a new order that is more than
fifteen percent different,” W. Va. Code § 48-11-105(b), the lower courts should have
prospectively modified his child support obligation to reflect his current level of income in
the course of ruling upon Mrs. Skidmore's petitions to modify child support.
In response to Mr. Skidmore's arguments, Mrs. Skidmore asserts that the
lower courts did not err by refusing to grant Mr. Skidmore's request for a prospective
downward modification of child support insofar as he did not formally petition for such
relief. However, Mrs. Skidmore complains that the lower courts erred by refusing her
request for additional child support to correspond with her receipt of Janet's sole custody.
The issue presented for this Court's resolution in this assignment of error is
whether a nonmoving or nonpetitioning party may be granted relief upon the moving or
petitioning party's request for modification of a child support order. As noted in the
preceding section, W. Va. Code § 48-11-105 governs the modification of child support
orders. Pursuant to this section, a court's authority to modify a child support order is
limited to those cases in which a motion requesting such relief has been filed:
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.
W. Va. Code § 48-11-105(a) (emphasis added). Consistent with our recognition in Section
III.A., supra, we conclude that this statutory language is plain and should be applied as it
is written without further judicial construction. See Syl. pt. 5, General Daniel Morgan, 144
W. Va. 137, 107 S.E.2d 353. From this plain statutory language, then, it is apparent that
a party must make a motion for modification of an order awarding child support before a
court is permitted to grant such relief. See Syl. pt. 3, in part, Goff v. Goff, 177 W. Va. 742,
356 S.E.2d 496 (“The party petitioning for a modification of the support provisions . . . bears
the burden of showing a substantial change of circumstances.” (emphasis added)).
Applying this statutory language to the facts of the case sub judice, we
conclude that the family court did not err by ruling that Mr. Skidmore could not be granted
relief upon Mrs. Skidmore's petitions for modification of child support because Mr.
Skidmore, himself, had not filed a separate petition for relief or asserted a counterclaim in
response to either of Mrs. Skidmore's petitions. In other words, W. Va. Code § 48-11-
105(a) clearly requires a party seeking a modification of a child support order to move for
such relief, and Mr. Skidmore did not move the court for a modification of child support
prior to the family court's hearing of April 24, 2008, which culminated in its May 21, 2008,
“Findings of Fact and Conclusions of Law” order denying Mr. Skidmore's request for
prospective modification of child support.
In this order, the family court further references Mr. Skidmore's “Motion”
and explains that it is denying the same due to Mr. Skidmore's “failure to actively seek a
modification himself either by petition or a counter-claim.” (Emphasis added). Such a
reference, without more, however, does not entitle Mr. Skidmore to the relief that he seeks
on appeal to this Court. Presumably, Mr. Skidmore made an oral motion for modification
during the family court's April 24, 2008, hearing. We use the word “presumably” because
the record designated for appellate consideration is devoid of any other reference to Mr.
Skidmore's alleged motion (See footnote 18) apart from that contained in the family court's order. To
permit this Court to review an error assigned by an appellant, a record of the assigned error
must be submitted for this Court's consideration. Here, no such record has been presented
for our review: the record does not contain a written motion for modification filed by Mr.
Skidmore prior to the family court's April 24, 2008, hearing (See footnote 19) to which it could have been
referring in the above-quoted order, and the transcript of the family court's April 24, 2008,
hearing is not in the record designated for appellate consideration from which we could
discern whether Mr. Skidmore had, in fact, made a proper motion for modification of child
support as contemplated by W. Va. Code § 48-11-105(a). We have long held that litigants
are required to present to this Court a record upon which we may thoroughly consider the
errors they have assigned to the lower court's proceedings. Specifically,
[a]n appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.
Syl. pt. 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). Accord State v.
Honaker, 193 W. Va. 51, 56, 454 S.E.2d 96, 101 (1994) (“This Court has held that the
responsibility and burden of designating the record is on the parties and that appellate
review must be limited to those issues which appear in the record presented to this Court.”
(footnote and citation omitted)). See also II Franklin D. Cleckley, Handbook on West
Virginia Criminal Procedure 497-98 (1993) (“The designation of the record is important.
A court of record speaks only by its record is the general rule. . . . Not only must the
significant portion of the record relating to th[e] alleged error be identified, the precise part
of the record must be designated. Otherwise, the error will be treated as nonexisting.”
(citations omitted)).
When the alleged error is not apparent from the record designated for
appellate consideration, we lack a basis upon which to determine whether error has
occurred. “[T]he Supreme Court of Appeals is limited in its authority to resolve
assignments of nonjurisdictional errors to a consideration of those matters passed upon by
the court below and fairly arising upon the portions of the record designated for appellate
review.” Syl. pt. 6, in part, Parker v. Knowlton Constr. Co., 158 W. Va. 314, 210 S.E.2d
918 (1975) (emphasis added). Absent an adequate record in the case sub judice, we cannot
find that Mr. Skidmore moved for prospective modification of the lower court's child
support order pursuant to W. Va. Code § 48-11-105(a). And, absent a motion for
modification by Mr. Skidmore, the family court lacked the authority to grant Mr. Skidmore
the relief he requested in connection with Mrs. Skidmore's petitions for modification.
Accordingly, we conclude that the family court correctly denied Mr. Skidmore's request
for prospective modification of his child support obligation. Therefore, we affirm the
decision of the circuit court refusing Mr. Skidmore's appeal of this issue.