(Tucker
County 14-D-16)
MEMORANDUM DECISION
Petitioner
John P., by counsel Alexandria A. Solomon, appeals the
Circuit Court of Tucker County's May 23, 2016, order
denying his petition for appeal from the Family Court of
Tucker County.[1] Respondent Sarah H., by counsel David W.
Hart, filed a response. On appeal, petitioner alleges that
the circuit court erred in denying his petition for an appeal
and to correct omissions in the record pursuant to Rule 29 of
the West Virginia Rules of Practice and Procedure for Family
Court.
This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
In
April of 1998, the parties were married in Bledsoe County,
Tennessee. The parties had one child together, born on March
7, 2003. Thereafter, the parties and their minor child moved
to Tucker County, West Virginia. The parties separated in
November of 2013 while living in Tucker County.
In May
of 2014, petitioner filed a petition for divorce in the
Family Court of Tucker County, on the ground of
irreconcilable differences. Respondent filed a notice of bona
fide defense on June 2, 2014, and a response to the divorce
petition. Petitioner filed an amended petition for divorce on
June 23, 2014.
In
August of 2014, the family court held a temporary hearing
wherein respondent was named the primary caregiver for the
child. The family court also set petitioner's child
support obligation, established a parenting plan, and ordered
that petitioner pay the full amount of the mortgage on the
marital home. Therefore, petitioner was awarded his separate
business property. Petitioner thereafter filed a motion to
modify the parenting plan and the family court's order
regarding petitioner's obligation to pay the full amount
of the mortgage. In September of 2014, the family court held
a hearing on petitioner's motions and heard evidence
regarding the financial rulings. By order, the family court
denied petitioner's motion regarding the mortgage on the
marital home but reserved the parenting time issues for a
later hearing.
Following
a series of final hearings and telephonic conferences, the
family court entered a final divorce order on May 21, 2015.
The final ordered increased petitioner's child support
obligation, modified parts of the parties' parenting
plan, and ordered that petitioner pay $6, 800 of
respondent's attorney's fees. Petitioner was also
ordered to pay $2, 237.59 to release his business collateral
from the mortgage loan on the marital home. Petitioner filed
a motion for reconsideration of the final divorce order and a
request for clarification of the holiday parenting schedule
on June 18, 2015. The family court, by order entered on
September 9, 2015, clarified the parenting schedule and
denied his motion for reconsideration.
In
October of 2015, petitioner filed a petition for appeal in
the circuit court. Respondent filed a response. Petitioner
then filed a supplement to his petition for appeal and
respondent filed a response opposing petitioner's
supplement to the appeal. The circuit court ruled that ten of
the grounds for relief in petitioner's appeal were not
timely filed and that he failed to file a written motion
asserting good cause for an extension, as required by Rule 32
of the Rules of Practice and Procedure for Family Court. The
circuit court determined that the issue of petitioner's
equitable distribution award of business property items held
as collateral to secure the mortgage on the residence was
"timely filed and ripe for consideration."
Ultimately the circuit court denied petitioner's appeal
regarding the family court's equitable distribution by
order entered on May 23, 2016. Based on the evidence
presented, the circuit court found "no clear error or
abuse of discretion" by the family court. It is from
this order that petitioner appeals.
We have previously established the relevant standard of
review:
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.
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803
(2004). Upon our review, we find the circuit court did not
err is denying petitioner's appeal.
Petitioner
first argues that the circuit court erred by not remanding
his motion for reconsideration to the family court for proper
consideration on the merits and to correct omissions in the
record pursuant to Rule 29 of the West Virginia Rules of
Practice and Procedure for Family Court. We disagree.
Pursuant
to Rule 28(a) of the Rules of Practice and Procedure for
Family Court, "[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." It
is undisputed that petitioner failed to appeal the final
divorce decree to the circuit court within thirty days, as
the family court's final order was entered on May 21,
2015, and his appeal was not filed until October of 2015.
While Rule 28(a) goes on to state that "[i]f 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
reconsideration, " the record shows that petitioner
filed his motion for reconsideration with the family court in
October of 2015, well outside the time frame for appeal of
the May of 2015 final divorce decree. As such, the appeal
period was never suspended and petitioner failed to timely
appeal the final divorce decree.
The
issues raised in petitioner's appeal involve the family
court's rulings on property and financial allocations,
the awards of child and spousal support, and the award of
attorney's fees. These assignments of error are clearly
related to the family court's May 21, 2015, final divorce
decree that petitioner failed to appeal. As for
petitioner's claim that the family court failed to
correct omissions in the record, the record indicates that
petitioner did not submit his 2014 tax return until he filed
his motion for reconsideration, well ...