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In re Marriage/Children of Harry E. W.

Supreme Court of West Virginia

May 3, 2019

In Re: The Marriage/Children of: Harry E. W. Jr., Petitioner Below, Petitioner
v.
Mary M. W., Respondent Below, Respondent

          Pocahontas County 96-D-39

          MEMORANDUM DECISION

         Petitioner Harry E. W. Jr., [1] pro se, appeals the October 17, 2017, order of the Circuit Court of Pocahontas County ("Pocahontas County Circuit Court") refusing his appeal from the July 24, 2017, order of the Family Court of Pocahontas County ("Pocahontas County Family Court"). In the July 24, 2017, order, the family court denied petitioner's motion seeking relief from a November 29, 2001, final order directing him to pay permanent spousal support to his former wife, Respondent Mary M. W., in the amount of $2, 250 per month and to pay child support in the amount of $3, 250 per month. Respondent, by counsel Barry L. Bruce, filed a summary response.

         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.

         Petitioner filed for divorce from respondent on May 20, 1996, and the parties' marriage was dissolved in a bifurcated proceeding by order entered April 6, 1998. Prior to the entry of the November 29, 2001, order that resolved the remaining issues between the parties, petitioner was convicted in Greenbrier County of second-degree arson, arson causing injury, breaking and entering, and retaliation against a witness, "all involving a fire at the office of [r]espondent's counsel[.]"

         In the November 29, 2001, order, the Pocahontas County Circuit Court, which then had jurisdiction in divorce cases, [2] found that respondent was entitled to permanent spousal support, noting that she ceased her employment at the birth of the parties' first child and "has cared for and homeschooled the parties' nine children during the marriage." The Pocahontas County Circuit Court further found that the parties' children were "in need of child support". While petitioner, a physician, [3] no longer had any income because of his incarceration, the Pocahontas County Circuit Court found that assets in petitioner's separate estate were sufficient for him to continue paying spousal and child support at the amounts previously established in temporary orders. Accordingly, the Pocahontas County Circuit Court denied petitioner's petition to modify his support obligations and ordered:

3. [Petitioner] shall continue to pay permanent [spousal support] to [respondent] in the amount of $2, 250.00 per month and continuing each month under further order of the [c]ourt. Termination of [spousal support] shall be automatic upon the death of [petitioner] or the remarriage of [respondent]. Payments shall be made to [respondent] from the corpus of [petitioner]'s separate estate.
4.[Petitioner] shall continue to pay child support in the amount of $3, 250 per month and continuing each month until the children reach the age of 18 years, graduate from high school, marry, or become emancipated. Payments shall be made to [respondent] from the corpus of [petitioner]'s separate estate.

(Emphasis added.). According to respondent, petitioner attempted to appeal the Pocahontas County Circuit Court's November 29, 2001, order, but failed to do so properly.[4] Therefore, the November 29, 2001, order became final without being appealed.

         Petitioner was released from incarceration on parole in 2008 and completely discharged his sentence in 2010. In 2013, petitioner filed a petition for a writ of coram nobis in the Circuit Court of Greenbrier County ("Greenbrier County Circuit Court") challenging his convictions relating to the fire at respondent's attorney's office. By order entered June 17, 2016, the Greenbrier County Circuit Court granted petitioner a writ of coram nobis and vacated his convictions, finding that petitioner's attorney in the Greenbrier County criminal case had an actual conflict of interest and that "the conflict itself demonstrates the denial of the right to have the effective assistance of counsel and [p]etitioner need not demonstrate prejudice in order to obtain relief."[5]

         In the Pocahontas County Family Court case, by amended order entered June 21, 2016, respondent and the West Virginia Bureau of Child Support Enforcement obtained a decretal judgment against petitioner for past due spousal and child support in the amount of $1, 059, 140.14. In March of 2017, petitioner had a support arrearage in the amount of $1, 111, 953.67 with regard to current and past due spousal support and past due child support, including interest.

         On April 18, 2017, petitioner filed a motion in the Pocahontas County Family Court seeking relief from the November 29, 2001, final order directing him to pay permanent spousal support to respondent in the amount of $2, 250 per month and to pay child support in the amount of $3, 250 per month.[6] In petitioner's motion, he argued that, in the November 29, 2001, final order, the Pocahontas County Circuit Court either (1) attributed income to him on the theory that he became unemployed through voluntary criminal conduct; or (2) directed him to continue paying support at prior levels as additional punishment for his convictions. Given that petitioner's convictions in the Greenbrier criminal case had been declared invalid, he further argued that the November 29, 2001, final order in the Pocahontas County Family Court case should likewise be vacated. Following a June 22, 2017, hearing, the Pocahontas County Family Court denied the motion, finding that "[n]othing in the record suggests that [the Pocahontas County Circuit Court]'s award of [spousal support] and child support was premised upon [p]etitioner's criminal charges and incarceration[.]" Rather, the Pocahontas County Family Court found that petitioner's support obligations were based on "his sizable estate."[7] Petitioner appealed the Pocahontas County Family Court's July 24, 2017, order, but the Pocahontas County Circuit Court refused his appeal by order entered October 17, 2017.

         Petitioner now appeals the Pocahontas County Circuit Court's October 17, 2017, order refusing his appeal from the Pocahontas County Family Court's July 24, 2017, order denying his motion seeking relief from the November 29, 2001, final 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 three and four of Toler v. Shelton, 157 W.Va. ...


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