Pocahontas County 16-D-03
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
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.
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.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.
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.
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.
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.
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
Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803
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,
well as Rule 408 of the West Virginia Rules of
Evidence and Rule 25.12 of the West Virginia Trial
Court Rules. 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.
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 ...