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Doss v. Hill-Doss

Supreme Court of Appeals of West Virginia

September 13, 2019

Michael Clayton Doss, Respondent Below, Petitioner
v.
Melissa Dawn Hill-Doss, Petitioner Below, Respondent

          Pocahontas County 16-D-03

          MEMORANDUM DECISION

         Petitioner Michael Clayton Doss, by counsel J. Michael Anderson, appeals the Circuit Court of Pocahontas County's March 26, 2018, order affirming the family court's final divorce order. Respondent Melissa Dawn Hill-Doss, by counsel Robert P. Martin, filed a response in support of the circuit court's order. On appeal, petitioner argues that the family court erred in (1) personally receiving all of the mediator's notes from the parties' mediation; (2) finding that spousal support was necessary based upon respondent's reported expenses; (3) ordering that spousal support begin retroactively on the date of separation; and (4) having ex parte communication with respondent's counsel.[1]

         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.

         The parties were married in Greenbrier County, West Virginia, in May of 1991. Two children were born of the marriage before the parties separated on or about June 25, 2015.[2]Shortly thereafter, respondent filed a petition for divorce in which she alleged grounds of mental cruelty and adultery. Petitioner filed a counter-petition wherein he alleged the grounds of mental cruelty and inhumane treatment by respondent.

         The family court appointed a mediator to assist the parties in reaching a resolution regarding their divorce. In May of 2017, the parties submitted to the mediation and reached a settlement on all issues except the matter of spousal support. Following the mediation, the mediator sent his report to the family court and inadvertently attached his personal notes. These notes included several proposals and offers regarding spousal support, including a permanent award of $2, 000.00 per month. A few days later, the mediator sent a "corrective letter" without his personal notes.

         The family court held final hearings on the matter in July of 2017 and August of 2017. Ultimately, the family court granted the divorce on the ground of adultery, finding that petitioner failed to offer evidence regarding his claim of mental cruelty, and granted respondent an award of permanent alimony in the amount of $2, 000.00 per month, commencing retroactively on July 1, 2015, since the parties had separated around June 25, 2015.

         Petitioner appealed the matter, arguing that the family court erred in accepting into evidence notes from the parties' mediation, awarding respondent a permanent spousal support award to begin retroactively near the date of separation, making erroneous findings of fact, and having ex parte communications with respondent's counsel. The circuit court refused the appeal, finding that the grounds asserted were without merit. Specifically, the circuit court found that petitioner's statement that the mediation notes were "presumably read by the court" was pure speculation. Further, the circuit court determined that it was within the family court's discretion to retroactively award spousal support and that it did not abuse its discretion with regard to the other grounds. It is from the March 26, 2018, order that petitioner appeals.

         We have previously held that

[i]n 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.

         Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         First, petitioner alleges that the family court erred in accepting and filing the mediator's notes into evidence. Petitioner avers that this action violated Rule 43(d) of the West Virginia Rules of Practice and Procedures for Family Court, [3] as well as Rule 408 of the West Virginia Rules of Evidence[4] and Rule 25.12 of the West Virginia Trial Court Rules.[5] According to petitioner, the admittance of these notes prejudiced him because the family court "presumably" read the notes and awarded respondent a permanent award of $2, 000 in spousal support based upon one of the proposals that was contained in the mediator's notes. We find no merit in petitioner's argument.

         Petitioner argues that the circuit court must have read the mediator's notes given the fact that it happened to award one of the proposed offers that was contained in the notes. However, petitioner's argument is purely speculative and invites this Court to presume facts that he has not proven. Indeed, this Court has long held that

"[t]here is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law[.]" Syllabus, in part, State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585 (1965).

Syl. Pt. 2, State v. J.S., 233 W.Va. 198, 757 S.E.2d 622 (2014). Simply because the family court happened to grant an award identical to one of several proposals contained in the mediator's notes does not demonstrate that the family court improperly considered the mediator's notes. We find that petitioner has failed to meet his burden, presume regularity in the family ...


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