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Vanessa T. v. Shawn G.

Supreme Court of West Virginia

June 17, 2019

Vanessa T., Petitioner Below, Petitioner
v.
Shawn G., Respondent Below, Respondent

          Boone County 06-D-358

          MEMORANDUM DECISION

         Petitioner Vanessa T., [1] pro se, appeals the October 13, 2017, order of the Circuit Court of Boone County refusing her appeal from a September 20, 2017, order of the Family Court of Boone County. In the September 20, 2017, order, the family court found petitioner in contempt of an August 18, 2017, agreed order regarding the parties' minor child. Respondent Shawn G., pro se, filed a summary response in support of the circuit court's order.

         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. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the family court affirmed, in part, and reversed, in part, and this case is remanded to the family court with directions to hold a hearing regarding petitioner's current financial ability to satisfy the requirement for a compliance bond and all other costs, fees, and monetary sanctions imposed upon her by the court.

         The parties were divorced from the bonds of matrimony by an order entered June 18, 2007. The parties have a fifteen-year-old child together. By order entered August 15, 2011, the Boone County Family Court directed the parties share parenting time with the minor child as follows: First, petitioner would have four consecutive days, then respondent having the next three consecutive days. The next week, petitioner would have three consecutive days and respondent would have four consecutive days. The cycle would then repeat. The Boone County Family Court further ordered that the minor child shall have no contact with Ray H., with whom petitioner "remain[ed] in a relationship" at that time. The Boone County Family Court found that Ray H. was previously convicted of "brandishing a deadly weapon during the transfer of the minor child to [respondent]." The Boone County Family Court further found that petitioner "suffer[ed] from Bi-Polar Disorder, Depression, Anxiety[, ] and Panic Disorder and receive[d] Social Security Disability benefits for the same."[2] On November 14, 2016, [3] petitioner filed a petition for modification of the August 15, 2011, order and proposed a parenting plan where petitioner would have parenting time with the parties' minor child "unless [respondent] is off work and he and [the child] discuss." With her petition, petitioner filed an application for waiver of fees and costs as an indigent person, which was approved. Respondent filed an answer to the petition for modification on December 7, 2016.

         By temporary order entered February 17, 2017, the Boone County Family Court noted that the parties were advised of a prior professional relationship between the family court judge and respondent's attorney and "were allowed time outside the presence of the [c]ourt to decide whether to file objections." The Boone County Family Court found that, "[a]fter a brief recess[, ] both parties waived any conflict of interest and requested that the judge continue in the case[.]" The Boone County Family Court further found that petitioner "admitted . . . that she had allowed the minor child . . . to use vapor cigarettes[, ] contrary to his best interest[s, ]" and that petitioner "failed to make the child attend school." Accordingly, the Boone County Family Court awarded respondent custody of the child "until further order of this court" and granted petitioner supervised visitation with the child from 5:00 p.m. on Friday to 6:00 p.m. on Sunday with petitioner's parents supervising the visitation. The Boone County Family Court further directed that, "[p]ursuant to the agreement of the parties, [Attorney] Jason Harwood shall be appointed as guardian ad litem [("GAL")] for the minor child[.]" Consistent with this directive, the Boone County Family Court entered an "amended order appointing [GAL] for minor child in a domestic case" on March 17, 2017, reflecting that a GAL had been appointed. In its March 17, 2017, order, the Boone County Family Court found that it was anticipated that the GAL's fees would be paid by "the Administrative Office of the West Virginia Supreme Court unless otherwise [o]rdered." On April 25, 2017, this Court amended West Virginia Trial Court Rules 21.04 and 21.05 to provide for payment of a GAL's fees only "when the appointment was nondiscretionary."[4]

         The Boone County Family Court held a final hearing on petitioner's petition for modification on June 6, 2017.[5] The parties and the GAL informed the family court that "all parties had reached an agreement as to the future parenting plan concerning the minor child[.]" During the school year, the minor child "shall remain enrolled in Boone County schools, as was his request," and "while school is in session, [the minor child] shall stay with [respondent] from Monday's after school through Thursday night." The parties' agreement further provided that petitioner would have parenting time with the minor child from "after school on Friday's" to Monday morning when petitioner "shall transport [the child] . . . to school." However, "if three (3) or more unexcused absences are accrued during a semester on [petitioner]'s Monday returns to school, [the minor child] shall . . . revert to being returned to [respondent] on Sunday evenings prior to school weeks." During summer vacation, "[the minor child] shall reside with [petitioner] during the week, with [respondent] having [the child] every third weekend from Friday's at 6:00 p.m. until Sunday's at 8:00 p.m."[6] (Emphasis omitted.) The Boone County Family Court adopted the parties' agreement at the June 6, 2017, hearing. However, the family court did not enter the agreed order until August 18, 2017. In the August 18, 2017, agreed order, the Boone County Family Court found that the parties' case did not qualify for "subsidized payments to the GAL through the Supreme Court [of Appeals] of [W]est [V]irginia[.]" Accordingly, the Boone County Family Court ordered that respondent pay 76% of the GAL's fees and that petitioner pay 24% of those fees.

         Following the Boone County Family Court's adoption of the parties' agreement at the June 6, 2017, hearing, petitioner violated the family court's ruling numerous times. On June 23, 2017, petitioner "refused to transfer the child to [respondent] for his weekend visit." In refusing to transfer the child, petitioner gave a member of the Chapmanville Police Department "falsified information and presented him with the prior [c]ourt order that was contrary to the [a]greed [o]rder of the June 6, 2017[, ] hearing which was still being circulated amongst counsel." The GAL, who was contacted, "inform[ed] law enforcement that [petitioner] was not being truthful [with] them and that the new agreement was to be enforced." Respondent was then able to exercise his parenting time with the parties' minor child.

         On August 17, 2017, petitioner, "unilaterally, directly in violation of the [c]ourt's [o]rder and unknown to [respondent], enrolled the child in . . . school in Lincoln County." Once respondent learned that petitioner enrolled the minor child in school in Lincoln County, respondent filed a petition for contempt against petitioner on August 21, 2017. By an emergency ex parte order, the Boone County Family Court awarded respondent custody of the minor child and suspended all of petitioner's parenting time. Respondent "was then informed that [petitioner] had filed a bogus and unfounded temporary emergency protective order [("TEPO")] with the Lincoln County Magistrate Court . . . temporarily placing the child exclusively with [petitioner] . . ., in direct contravention of [the Boone County Family Court's] [o]rder." (Emphasis omitted.) At an August 31, 2017, hearing, the Lincoln County Family Court dismissed the TEPO, finding that the allegations set forth therein "were unfounded." The Lincoln County Family Court directed petitioner to surrender the minor child to respondent. Petitioner "refused to disclose the location of the child." (Emphasis omitted.) Accordingly, the Lincoln County Family Court held petitioner in contempt and placed her in the custody of the Lincoln County Sheriff. "[W]hile in the custody of the [Lincoln County] Sheriff, [petitioner] conspired with others to hide the child through electronic messages or texts and going so far as leaving a voice message with family to abscond with the child." However, once petitioner was transported to the Western Regional Jail, petitioner "requested her family [to] return the child to [respondent]." Thereafter, petitioner was released.

         Prior to the contempt hearing before the Boone County Family Court on September 6, 2017, [7] petitioner "began posting untrue and salacious postings on various social media platforms[.]" Petitioner accused both the Boone County Family Court and the Lincoln County Family Court judges of corruption, the GAL of making sexual advances towards her, and respondent of violence. Petitioner further claimed that the minor child "was being held against his will." At the September 6, 2017, hearing, the Boone County Family Court heard testimony from the parties and the GAL. The Boone County Family Court found petitioner in contempt because she (1) hindered respondent's exercise of his parenting time on June 23, 2017, which included providing "falsified information" to law enforcement; (2) enrolled the minor child in school in Lincoln County on August 17, 2017, in violation of its ruling at the June 6, 2017, hearing; (3) filed a false TEPO in Lincoln County and refused to surrender the minor child to respondent, causing the Lincoln County Family Court to incarcerate her until she disclosed the child's location; and (4) published untrue and salacious postings on various social media platforms contrary to the minor child's best interests and prior orders of the court. The Boone County Family Court further found that petitioner's testimony "lack[ed] credibility" and that petitioner "fabricate[d] evidence on several occasions" and engaged in "extreme parental alienation" regarding respondent's relationship with the minor child.

         Given its findings, the Boone County Family Court awarded permanent custody of the minor child to respondent and ordered that petitioner has only supervised visitation with the child.[8]In its September 20, 2017, order, the Boone County Family Court directed that Vance Family Services supervise petitioner's visitation with the minor child and that petitioner pay the costs therefor.[9] The family court further ordered that petitioner undergo a psychological evaluation at her own expense and post a $2, 000 cash bond "to ensure her compliance with the [o]rders of this [c]ourt." The family court further directed that petitioner pay respondent's costs in the amount of $1, 000, and pay all of the GAL's fees incurred on or after June 23, 2017. For those GAL fees incurred prior to June 23, 2017, the family court reaffirmed its prior ruling from the August 18, 2017, agreed order that respondent pay 76% of the GAL's fees and that petitioner pay 24% of the fees. Finally, the family court made further proceedings in the parties' case contingent on "the receipt of the results of the psychological examination of [petitioner] and her faithful execution of the [contempt] sanctions detailed above." (Emphasis omitted.). However, the video recording of the contempt hearing shows that the family court failed to consider petitioner's ability to pay when requiring her to post a compliance bond in cash and imposing the other costs, fees, and monetary sanctions.

         Petitioner appealed the Boone County Family Court's September 20, 2017, order to the Boone County Circuit Court, which refused her appeal by order entered October 13, 2017. Petitioner appealed the Boone County Circuit Court's October 13, 2017, order on November 17, 2017, and submitted another application for waiver of fees and costs as an indigent person. Upon review of this fee waiver application, this Court found that "petitioner [did] not meet the financial requirements for waiver of the filing fee" and directed petitioner to pay the fee by order entered December 12, 2017. Petitioner paid the $200 filing fee as acknowledged in an order entered January 9, 2018.

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 ...

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