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In re Child of John S.

Supreme Court of West Virginia

May 18, 2018

In re The Child of: John S., Respondent Below, Petitioner
v.
Alesha C., Petitioner Below, Respondent

          Fayette County 98-D-400

          MEMORANDUM DECISION

         Petitioner John S., [1] pro se, appeals the November 18, 2016, order of the Circuit Court of Fayette County affirming two orders of the Family Court of Fayette County. In the first order, entered September 28, 2016, the family court reduced Respondent Alesha C.'s child support obligation to $0 per month due to her incarceration. In the second order, entered October 11, 2016, the family court denied petitioner's motion to reconsider its September 28, 2016, order. Respondent did not file a response.[2]

         The 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.

         The parties are both incarcerated. They were married on December 22, 1997, and divorced by order entered May 28, 1999. In that order, it was noted that petitioner was nineteen-years-old and respondent was sixteen-years-old at the time of the divorce proceeding. The parties owned "no real estate, " but each was awarded the exclusive use and possession of his or her "personal effects."

         The parties' child became emancipated on his eighteenth birthday, December 24, 2015. At the time of the child's eighteenth birthday, the child support order in effect was previously entered on October 7, 2010, and directed that respondent pay to petitioner $205 per month in child support. In the October 7, 2010, order, the family court directed that child support payments shall continue until the child's twentieth birthday so long as the child remained unmarried, residing with a parent, guardian, or custodian, and enrolled as a full-time student in a secondary or vocational school "[u]nless sooner modified or terminated by [c]ourt [o]rder."

         On August 9, 2016, respondent filed an expedited petition for modification of child support in the Family Court of Fayette County, alleging that she had become incarcerated and that, as a result, her monthly income was reduced from $500 to $51. Respondent listed the child's address as "unknown" and attached her job assignment from Lakin Correctional Center showing her salary as $51 per month. Petitioner filed multiple motions for appointment of a guardian ad litem ("GAL") to represent his interests as an incarcerated person, and a hearing was set for October 17, 2016. Given that both parents were incarcerated at the time of respondent's expedited petition for modification of child support, the record does not disclose the child's circumstances at the time of the petition.

         By order entered September 28, 2016, the family court cancelled the October 17, 2016, hearing and denied petitioner's motions for appointment of a guardian ad litem as there was "no possible way for him to be prejudiced by a modification of [respondent]'s child support obligation." As support for its order reducing respondent's support obligation to $0 per month, the family court found (1) respondent stated that her income was decreased from $500 to $51 per month; (2) the reason for the substantial decrease in respondent's income was that she became incarcerated at Lakin Correctional Center; and (3) a recalculation based upon the child support guidelines resulted in a support amount of $0 per month. The family court ordered respondent to notify the West Virginia Bureau of Child Support Enforcement ("BCSE") "of any future changes regarding her income."

         On October 7, 2016, petitioner filed a motion asking the family court to reconsider its September 28, 2016, order. Petitioner argued that the family court erred in finding that there was an ongoing support obligation when the only issue was whether respondent owed him for past, unpaid child support for periods of time during which he had custody of the child. The family court denied petitioner's motion by order entered October 11, 2016, finding that there was "no reason to have a hearing" and "no reason to appoint" a GAL for petitioner. Petitioner appealed the September 28, 2016, and October 11, 2016, orders to the Circuit Court of Fayette County which affirmed the family court's rulings on November 16, 2018. Petitioner now appeals from the circuit court's November 16, 2018, order.

         We review this matter under the following standard:

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). In syllabus points 3, 6, and 8 of Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007), we held:

3. Modification of support obligations imposed on incarcerated persons may be sought in the same manner as any parent.
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6. The support obligation of an incarcerated person should be set in light of that person's actual earnings while incarcerated and other assets of the incarcerated person ...

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