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Mark V.H. v. Delores J.M.

Supreme Court of Appeals of West Virginia

September 9, 2019

Mark V.H., Defendant Below, Petitioner
Delores J.M., Petitioner Below, Respondent

          (Putnam 11-D-516)


         Petitioner Mark V.H.[1], by counsel Christopher S. Butch, appeals the January 26, 2018, order of the Circuit Court of Putnam County that affirmed the November 7, 2017, order of the Family Court of Putnam County. The family court precluded petitioner from having any contact with his minor son "until such time as [petitioner] has undertaken eighteen months of continuous progress in mental health treatment without getting involved in legal altercations with third parties." Respondent Delores J.M., appearing pro se, filed a response in support of the circuit court's order. Petitioner, although represented by counsel, also filed three pro se responses.[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 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 Mark V.H and his ex-wife, respondent Delores J.M., have one child together, a son, who was born in 2007. Respondent filed this divorce and custody matter in the Putman County Family Court. However, then-Kanawha County Family Court Judge Mike Kelly was appointed to the case because the Putnam County family court judge was disqualified. Judge Kelly then entered a temporary order in the case.

         Thereafter, on April 27, 2012, petitioner submitted a fraudulent letter to the Clerk of this Court in which he impersonated Judge Kelly and claimed that, as Judge Kelly, he had violated petitioner's rights, embarrassed the legal profession, and was vacating the temporary order and resigning his family court judge seat. Also during the spring of 2012, petitioner contacted members of this Court via e-mail, text messages, and phone calls, some of which petitioner made to the justices' home phones. In response, on May 11, 2012, the Chief Justice entered an administrative order that prohibited petitioner "from having any contact with the Court or its staff" and required that "[a]ll filings and other communications from [petitioner] shall be in writing and filed with the Clerk and not directly with the Court." Nevertheless, petitioner continued to send e-mails and to make phone calls to the members of the Court. In response, the Chief Justice entered a June 18, 2012, administrative order regarding petitioner's "VEXATIOUS AND FRIVOLOUS CONTACTS WITH COURT OFFICIALS." The order provided any further such communications would be "referred to the appropriate authorities for possible criminal prosecution." Nevertheless, petitioner thereafter sent an e-mail to the Court's administrative director.

         On September 21, 2012, petitioner filed a "Motion for Recusal, Reversal of Temporary Order and Sanctions" in which petitioner claimed Judge Kelly "sat back and allowed [petitioner's mother] to die without seeing [the parties' son]." Petitioner demanded that Judge Kelly should be required to enter an "order to revive [his mother] and pay for [the parties' son's] trip to California to see [petitioner's mother] at [Judge] Kelly's personal expense."

         Following extensive litigation, Judge Kelly entered the parties' January 22, 2013, final divorce order in which he concluded that petitioner's documented personality disorder necessitated that respondent have sole and exclusive decision-making authority for the parties' son. However, Judge Kelly awarded petitioner parenting time with the parties' son every other Saturday and Sunday from 9:00 a.m. until 8:00 p.m. Judge Kelly precluded petitioner from having overnight visitation with the parties' son, and prohibited petitioner from taking the child out of state. The family court found that allowing the child to spend any more time with petitioner would subject the son to danger due to petitioner's propensity to initiate conflict with other people. The family court also found that petitioner has "serious mental health issues that include a personality disorder (not otherwise specified) with narcissistic and paranoid and chronic impairment due to personality disorder." That said, the family court ruled that petitioner

may return to Court when the [parties'] child reaches the age of ten and is better able to protect himself from [petitioner's] tirades (e.g., by using a phone to call his mother) and/or [petitioner] has completed a regimen of psychotherapy . . . designed to augment his ability to control himself and avoid the conflicts which he currently creates and revels in.

         Judge Kelly also noted the following: Petitioner repeatedly made derogatory remarks to Judge Kelly, such as calling him "wacky" and "an idiot." Petitioner accused Judge Kelly of running a "Kangaroo Court" and opined that Judge Kelly "should be imprisoned and impeached" or committed to a mental institution "until he does society [a] favor and passes." Petitioner also demanded that respondent's lawyer be "disbarred" and sanctioned "the sum of $10 million" for "bizarre, anti-social and malicious [conduct]." Petitioner then demanded that respondent's lawyer pay him "$10 Billion in punitive damages" and be sent to a "mental ward" for the remainder of his life. Petitioner described his own lawyer as a "documented liar" and "a lying sack of crap."

         Petitioner appealed the January 22, 2013, divorce order to the circuit court, which, on May 7, 2013, affirmed the family court's order in part and reversed in part. Petitioner appealed the circuit court's order to this Court.

         While petitioner's appeal of the circuit court's May 7, 2013, order was pending, the family court entered a September 26, 2013, order in which it made the following findings: (1) "petitioner will bully, degrade and infuriate every person with whom he disagrees or who has refused to accommodate his odious and malicious conduct"; (2) petitioner "will harass any and all of [his] child's service providers, generating complaints to legal officials and causing an innocent facility to increase their security and expend scarce additional funds because of [petitioner's] behavior"; (3) petitioner continues to harass respondent by making unannounced and unwelcome visits to her home or workplace or by e-mail, text, or social media; and (4) petitioner repeatedly files frivolous pleadings, often with the goal of harassment or delay. The family court found it "could pick out scores of [petitioner's] nonsensical filings" that were "vitriolic rehashings of rulings adverse to [petitioner]" and "filed for a vexatious, wanton and oppressive purpose or were intentionally designed to harass [respondent] or the [family court] and cause unnecessary delay to these proceedings."

         On November 14, 2013, this Court, in Mark V.H. v. Dolores J.M., 232 W.Va. 378, 752 S.E.2d 409 (2013), reversed the circuit court's May 7, 2013, order and reinstated the family court's divorce order, including the family court's decision to limit petitioner's contact with the parties' minor son. We found that the evidence in the record showed petitioner engaged in "sustained harassment of private individuals and companies as well as various public officials and entities." Id. at 382, 752 S.E.2d at 413. We also made the following findings with regard to petitioner's conduct:

The disdain and rage of [petitioner] toward this Court, the entire court system and especially toward Judge Kelly, has permeated a majority of his self-filed pleadings. [Petitioner] has made a number of impossible-to-achieve and nonsensical requests and demands of the Family Court and this Court during the course of these proceedings. The following is not an exhaustive list, but illustrative of [petitioner's] conduct: (1) that Judge Kelly reincarnate his deceased mother so that she, [petitioner] and the child may have a final visit; (2) that after Judge Kelly reincarnates [petitioner's] deceased mother, that he pay for a trip for [petitioner] and his son to visit with her; (3) that Judge Kelly build a zoo in West Virginia and move the Atlantic Ocean to the State of West Virginia; and (4) that Judge Kelly pay for trips to amusement parks and other attractions for [petitioner], his child, the child's classmates and his teachers.

Id. at 384, 752 S.E.2d at 415.

         By order entered November 27, 2013, Judge Kelly (1) reinstated the parties' January 22, 2013, final divorce order except as modified by subsequent orders of the family court, and (2) granted parenting time to petitioner every other Saturday and Sunday commencing at 9:00 a.m. and ending at 8:00 p.m. each day with no overnights.

         On April 10, 2014, the Circuit Court of Kanawha County (Judge Kelly's home county) entered an administrative order finding that petitioner filed three "wholly frivolous and completely vexatious" actions in the circuit court. The order found that petitioner was "abusing the judicial system, costing the expenditure of significant amounts of money for attorney fees, and aggravating and annoying persons . . . without any justification or legitimate reason." In the exercise of its inherent authority, the circuit court precluded the circuit clerk from accepting any pro se civil action filed by petitioner. However, the circuit court allowed the circuit clerk to accept any pleading filed by a lawyer on petitioner's behalf.

         Despite the April 10, 2014, administrative order, petitioner, in December of 2014, filed various pro se pleadings including his tenth petition to have Judge Kelly recused from this case, which, like the other nine petitions, was denied. Petitioner also filed a pleading in which he stated that Judge Kelly was "a judicial thug" and "a MENTALLY ILL PATHOLOGICAL LIAR." Petitioner then repeated his demand that Judge Kelly revive his deceased mother and that he be awarded "$1 Billion" and $100 Trillion" in punitive damages. At the same time, petitioner filed an "Emergency Motion to Have Judge [] Kelly Undergo Mental Evaluation." Shortly thereafter, petitioner filed a "Motion for Reversal" of the circuit court's order denying petitioner's motion for a mental evaluation of Judge Kelly. Petitioner then claimed he had "impeached" the circuit court and the Chief Justice of this Court in a "Citizen's Order" and, therefore, neither the circuit court nor this Court had legal standing to issue any orders.

         On January 2, 2015, the family court cautiously granted petitioner additional parenting time due to petitioner's "ongoing relationship with a qualified mental health professional." Specifically, the family court ordered that petitioner be afforded parenting time every Wednesday evening from 5:30 p.m. to 7:30 p.m. However, the family court eliminated petitioner's telephone visitation with his son. In a second order, entered February 18, 2015, the family court sanctioned petitioner $1, 000 for his filing of frivolous motions. In a third order, entered February 20, 2015, the family court denied a series of motions filed by petitioner that essentially sought to overturn its January 2, 2015, order. On March 20, 2015, the circuit court denied petitioner's appeal of all three orders. Petitioner then appealed the circuit court's order to this Court. We affirmed the circuit court's March 20, 2015, order. See Mark V.H. v. Dolores J.M., No. 15-0350, 2015 WL 7199002 (W.Va. Nov. 13, 2015)(memorandum decision).

         In April of 2015, petitioner filed a pleading directed to Putnam County Circuit Court Judge Phillip M. Stowers in which he (1) claimed Judge Stowers's orders were "evil, incompetent, arrogant and prove [Judge Stowers is] unfit to hold office; (2) reversed "all" of Judge Stowers's orders and sanctioned Judge Stowers "$100 Trillion in damages"; (3) wrongfully informed Judge Stowers that he had been impeached; (4) demanded Judge Stowers revive his mother and pay for petitioner and his son "to fly to California to visit with [his mother] within one hour of this [pleading] being filed"; (5) claimed Judge Stowers must "take responsibility for [his] incredible evil misconduct and make this visit happen today"; (6) ordered Judge Stowers to "roll back time" so that petitioner could have the time he lost with his son; and, (7) ordered Judge Stowers to "immediately report to the mental ward of the nearest prison where you are to stay for the remainder of your life." Due in part to this filing, Judge Stowers and the other Putnam County circuit court judge advised the Chief Justice that they were voluntarily recusing themselves from petitioner's case. The Chief Justice of this Court then appointed Special Circuit Court Judge John W. Hatcher, Jr. to hear any appeals from the family court in this case.

         Soon thereafter, petitioner filed an "emergency appeal" to the circuit court of the family court order denying him a "Father's Day Trip." By order entered in June 8, 2015, Judge Hatcher found petitioner's appeal to be "quite disturbing," "vexatious" and "a rambling, nonsensical, erratic, irrational and absurd writing which makes absolutely no sense at all, even when read and considered in a light most favorable to [petitioner]." Judge Hatcher affirmed the family court's order and then ordered that,

[i]n consideration of the inherent authority vested in the [court] by virtue of the . . . appointment order of the Chief Justice, it is ORDERED that the Circuit Clerk of Putnam County, West Virginia, shall not, effective immediately, accept for filing, any pro se pleadings of any kind form or nature from [petitioner]. . . .
It is further ordered that the aforementioned Clerk shall only accept pleadings for filings in the name of [petitioner] which are prepared and offered for filing by a lawyer licensed to practice law in the State of West Virginia and whose license is in good standing. . . .

         On July 6, 2015, petitioner, appearing pro se, appealed the circuit court's June 8, 2015, order to this Court. We found that the June 8, 2015, order was not a final appealable order and, therefore, the Clerk of this Court did not docket the appeal. On July 29, 2015, petitioner sought a writ of prohibition from this Court to halt enforcement of the circuit court's June 8, 2015, order. In a final order entered November 17, 2015, the Court refused that petition.

         On March 30, 2016, this Court granted Judge Kelly's motion to be relieved from this case and appointed Special Family Court Judge Sabrina Deskins in his stead.

         By order entered June 3, 2016, Judge Deskins appointed Donna Pratt as the guardian ad litem for the parties' son. Ms. Pratt later testified regarding her August 24, 2016, report to the court, and her motion to be relieved from this case. Specifically, Ms. Pratt testified to e-mails sent or copied to her by petitioner in which petitioner (1) accused Ms. Pratt of displaying "incompetent behavior and unprofessional tactics"; (2) asked his counsel to seek a restraining order against Ms. Pratt that would preclude her from having contact with the parties' son; (3) asked his counsel to file a complaint against Ms. Pratt with the West Virginia State Bar's Office of Disciplinary Counsel; (4) stated that Ms. Pratt's report to the court was libelous, rude, obnoxious, demanding, and incompetent; (5) accused Ms. Pratt of retaliatory conduct; (6) asked his counsel to file a defamation lawsuit against Ms. Pratt seeking "major" damages; (7) called Ms. Pratt an "obnoxious princess" and a "lunatic"; and (8) asked his counsel to have Ms. Pratt admitted to a mental health facility. Ms. Pratt further testified that petitioner "berated and screamed" at her; accused her of covering up misconduct; avoided meeting with her; and then sent multiple e-mails to her in which he demanded an immediate court order allowing petitioner to move with his son to the beach.

         In an order dated August 29, 2016, Judge Deskins ordered the parties "to refrain from posting information with regard to this case or legal action or the minor child on social media while this case is ongoing[.]" Petitioner did not appeal or otherwise challenge this order.

         Thereafter, petitioner sought overnight visits and permission to travel out of state with his son. In a November 30, 2016, order, Judge Deskins noted that (1) a criminal complaint had been filed against petitioner that alleged he made harassing telephone calls to a local radio station owner; (2) a restraining order was entered against petitioner due to his violation of an order not to harass a local doctor or the doctor's family; (3) petitioner made multiple internet postings that involved allegations and complaints against Judge Kelly, respondent's attorney, respondent, Judge Deskins, Guardian ad Litem Donna Pratt, and Putnam County Prosecutor Mark A. Sorsaia; and (4) petitioner filed a complaint against Ms. Pratt with the West Virginia State Bar's Office of Disciplinary Counsel, and then sent Ms. Pratt a Facebook "friend" request (which she declined).

         Also in the November 30, 2016, order, Judge Deskins noted that Ms. Pratt testified that (1) petitioner claimed on Facebook that Ms. Pratt was "man bashing"; and (2) she was contacted by a radio station operator who said petitioner wanted to run an "attack news story" about her. Judge Deskins highlighted that, in open court, petitioner acknowledged his abusive internet postings about Ms. Pratt. Judge Deskins also highlighted that petitioner admitted to (1) posting comments and photos of Judge Deskins and her children on social media sites; (2) entering a guilty plea to a charge of trespassing; and (3) being banned from a state office building after making insulting and abusive phone calls to a state agency. Judge Deskins also noted that security at Yeager Airport had designated petitioner as a "potential disruptive visitor." Judge Deskins then found petitioner violated the August 29, 2016, order that prohibited the parties from posting information online regarding this case when he posted "false and inaccurate" information regarding counsel and Judge Deskins on his website. Judge Deskins ordered petitioner to remove any social media regarding herself, the parties, the parties' child, and counsel within twenty-four hours. Judge Deskins then denied petitioner's petition for additional parenting time on the following grounds:

[Petitioner] has failed to evidence a substantial change in circumstances warranting a modification pursuant to [W.Va.] Code [§] 48-11-401 . . . . Therefore, all requests for overnight and out of state parenting time shall be denied.
In particular, [the family court] ruled in the Final Divorce Order that further modification of the parenting plan should be precluded prior to the child turning [ten] years of age and being better able to protect himself and/or [petitioner] has completed a regimen of psychotherapy.
Further, the court FINDS that a modification as requested by [petitioner] is not in the best interests of the minor child.
The [petitioner's] parenting time shall remain as previously ordered, other than the de facto modification of the Wednesday parenting time being modified to 5:15 p.m. to 8:00 p.m .....

         Finally, Judge Deskins released Ms. Pratt from her guardian ad litem duties of behalf of the parties' son. Petitioner did not appeal or otherwise challenge the court's November 30, 2016, order.

         On March 3, 2017, petitioner, by counsel, again filed a petition for modification seeking additional parenting time. At that time, this case was assigned to Putnam County Family Court Judge Richard C. Witt. However, this Court accepted Judge Witt's voluntary recusal and appointed Cabell County Family Court Judge Patricia Keller in Judge Witt's stead. Judge Keller then appointed Arik Paraschos to serve as the guardian ad litem for the parties' son. At a preliminary hearing, the family court ruled that the parties could review the guardian ad litem's report at the family court's ...

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