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In re Child of Cynthia B.

Supreme Court of Appeals of West Virginia

September 13, 2019

In re The Child of: Cynthia B. and Stanley O. West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement, Petitioner Below, and Cynthia B., Respondent Below, Respondents

          Kanawha County 14-D-1001


         Petitioner Stanley O., by counsel Christopher T. Pritt, appeals the April 6, 2018, order of the Circuit Court of Kanawha County denying his appeal from the February 14, 2018, order of the Family Court of Kanawha County denying his motion for reconsideration.[1] Respondent West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement ("BCSE"), by counsel Dee-Ann Burdette, filed a response in support of the circuit court's order and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in summarily denying his petition for appeal as his alleged lack of notice established good cause or other justification to grant the appeal.

         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.

         In November of 1997, the mother, Cynthia B., gave birth to a child, J.B. Although the parties were never married, the mother alleged that petitioner was the father of the child. Shortly thereafter, the BCSE filed a complaint and summons against petitioner seeking to establish paternity, support obligations, and reimbursement support in the Circuit Court of Ohio County. The complaint and summons were mailed to an address in Wheeling, West Virginia, which was petitioner's mother's address. The BCSE made numerous attempts to serve petitioner but his mother claimed that he did not live at the address. Petitioner was never served, and the Ohio County case was closed in 2000.

         Subsequently, both parties moved out of state. However, in 2011, petitioner contacted his child on Facebook and stated that he was her father. Petitioner did not "friend" the child so she could not learn his whereabouts. On September 6, 2011, the mother and the child moved to Kanawha County, West Virginia. For the next three years, the BCSE attempted to locate petitioner. The United States Postal Service verified that petitioner received mail at only one address-that of petitioner's mother.

         On June 16, 2014, the BCSE filed a second complaint to establish paternity, child support, and reimbursement support in the Family Court of Kanawha County, along with a summons. The pleadings were forwarded to the Ohio County Sheriff's Office for personal service upon petitioner, but again, petitioner's mother stated that petitioner did not live there and only stopped by occasionally to get his things.

         As a result of the failed service, the BCSE searched several databases for another address to serve petitioner, but never found another address.[2] In April of 2015, the Ohio County Sheriff's Office again attempted to serve petitioner but was given the same response from petitioner's mother. The BCSE attempted to find addresses in Pennsylvania, petitioner's alleged state of employment, as well as North Carolina, where petitioner is a party to another child support case, without success.

         On December 7, 2016, petitioner called the Kanawha County BCSE and stated that his mother's address was his correct mailing address and appeared confused that the BCSE was still seeking child support for his child, who was now over the age of eighteen.

         On January 30, 2017, the family court dismissed the action for lack of activity for the previous year. On February 10, 2017, a Kanawha County BCSE worker contacted petitioner's mother and was specifically told that petitioner stopped by her home every couple of months to receive his mail. That same day, petitioner called the Kanawha County BCSE office and told the worker that he had no physical or mailing address.

         On February 15, 2017, petitioner went to the Ohio County BCSE office to pick up the complaint from the previously dismissed matter. The Kanawha County BCSE office sent the Ohio County BCSE office the documents, and petitioner accepted service in person on June 12, 2017. However, petitioner again refused to give the BCSE his address or to provide a copy of his Ohio driver's license. The BCSE then moved to reinstate the previous action.

         On June 15, 2017, the Family Court of Kanawha County granted the BCSE's motion and reinstated this action. Petitioner filed an answer to the complaint wherein he failed to provide his address or contact information as required by Rules 9(c) and 10(b) of the West Virginia Rules of Practice and Procedure for Family Court.[3] Petitioner further requested paternity testing, which the family court granted, and petitioner and the child were genetically tested. The order for genetic testing was mailed to petitioner's mother's home. This copy was not returned, and petitioner appeared at the correct time and place for genetic testing.

         The BCSE then filed the paternity results, which revealed a 99.99% probability that petitioner was J.B.'s father. Petitioner was mailed a copy to his mother's address on August 22, 2017. A day later, the BCSE sent petitioner a notice of hearing by first-class mail to his mother's address. On August 25, 2017, the BCSE received Form 3547 from the United States Postal Service that informed the BCSE that petitioner's mail was being forwarded from his mother's address to a post office box in Wheeling, West Virginia. The postal service did not return the notice of hearing.

         The family court hearing was held October 27, 2017, wherein respondents appeared but petitioner failed to appear. At the hearing, the mother requested reimbursement support[4] and evidence was taken regarding her income and that of petitioner. With petitioner's absence, the only testimony regarding his income was provided by the mother who claimed that petitioner's Facebook account boasted pictures of expensive trips, that petitioner usually drove nice vehicles, and that petitioner is a carpenter who has made a living "flipping houses." In response, the BCSE requested the family court to attribute minimum wage to petitioner's income ($1, 516.76 gross monthly income)[5] and that reimbursement support be assessed back to the child's birth in November of 1997. However, the family court found that support could only be assessed back to 2011, when petitioner acknowledged paternity of the child on Facebook, and the timeframe ended upon the child's graduation from high school in May of 2016. As a result, the mother and the State of West Virginia, as her subrogee, were awarded a judgment for child support reimbursement of $57, 000. Petitioner received a copy of the October 30, 2017, order and filed a motion to reconsider on February 1, 2018, seeking the opportunity to present financial information at an evidentiary hearing on the basis of his purported lack of notice of the earlier held evidentiary hearing. He then filed his amended motion to reconsider on February 20, 2018. In the amended motion, petitioner argued that the BCSE mailed documents to his post office box, but addressed them to the child's mother by mistake.[6]

         Citing petitioner's previous acknowledgment that his mother's address was his proper mailing address, his failure to contact the BCSE regarding his change of address, the proof of his receipt of previous documents at his mother's address, and his lack of cooperation with the BCSE regarding his current and updated mailing address, the family court found that petitioner had no grounds for relief and denied the motion without a hearing by order entered February 14, 2018. A month later, petitioner appealed this denial to the circuit court arguing that he did not receive notice of the family court's October 27, 2017, hearing because the address at issue was his mother's address, not his own.[7] ...

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