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Elizabeth P. v. Gid M.

Supreme Court of Appeals of West Virginia

October 18, 2019

Elizabeth P., Petitioner Below, Petitioner
v.
Gid M., Respondent Below, Respondent

          Wayne County 09-D-374

          MEMORANDUM DECISION

         Petitioner Elizabeth P., [1] pro se, appeals the September 26, 2018, order of the Circuit Court of Wayne County denying petitioner's appeal from the July 27, 2018, order entered by the Family Court of Wayne County. The family court designated Respondent Gid M. as the residential parent and ordered overnight visitation between petitioner and the parties' child every Friday and Saturday. The child's guardian ad litem ("GAL"), Attorney D. Scott Bellomy, filed a response in support of the circuit court's order.[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 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 record is sparse, [3] but we glean the following: The parties have an eleven-year-old child together. Petitioner currently resides in Ohio, while respondent and the child live in Wayne County, West Virginia. According to the GAL, the child previously resided in Ohio with petitioner. The child subsequently reported to the GAL that, while in petitioner's care, the child missed school to such an extent that the child was in danger of being held back in the fifth grade. Accordingly, after a June 22, 2018, evidentiary hearing, the Family Court of Wayne County designated respondent as the residential parent, with parenting time during the week, and allowed petitioner overnight visitation with the child every Friday and Saturday. The GAL states that the family court's ruling was in accordance with his recommendation, which he made following an investigation.

         Petitioner did not appeal the family court's July 27, 2018, order until August 30, 2018. By order entered on September 26, 2018, the Circuit Court of Wayne County found that petitioner filed her appeal outside the thirty-day time frame for appeals from family court. Accordingly, the circuit court denied petitioner's appeal on the ground that it was untimely filed. Petitioner now appeals the circuit court's September 26, 2018, order.

         In the Syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), we held:

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 abuse of discretion standard. We review questions of law de novo.

         Rule 28(a) of the West Virginia Rules of Practice and Procedure for Family Court ("family court rules") provides:

A party aggrieved by a final order of a family court may file a petition for appeal to the circuit court no later than thirty days after the family court final order was entered in the circuit clerk's office. If a motion for reconsideration has been filed within the time period to file an appeal, the time period for filing an appeal is suspended during the pendency of the motion for reconsideration.

         On appeal, petitioner fails to address the circuit court's ruling that her appeal was untimely filed but argues that the family court's July 27, 2018, order was erroneous. The GAL counters that the family's decision was correct and further notes the circuit court's decision to deny petitioner's appeal due to untimeliness.

         We find that we cannot review petitioner's challenge to the family court's order under the facts and circumstances of this case. In Syllabus Point 3 of Crea v. Crea, 222 W.Va. 388, 664 S.E.2d 729 (2008), we held: "Rule 28(a) of the [family court rules] is not jurisdictional and may be extended for good cause. To the extent that Washington v. Washington, 221 W.Va. 224, 654 S.E.2d 110 (2007), is inconsistent with this holding, it is overruled." We found in Crea that there was no good cause for allowing a late appeal given the lack of "any explanation whatsoever as to why Mr. Crea failed to draft a timely appeal to the circuit court" and the failure to present any argument "as to any impediment that impacted his ability to timely file his appeal to the circuit court." Id. at 393, 654 S.E.2d at 734.

         Here, as indicated above, petitioner failed to address the circuit court's ruling that her appeal was untimely. Based on our review of the limited record, we find no impediment that impacted petitioner's ability to file a timely appeal to the circuit court. In addition, petitioner filed no motion for reconsideration, which would have suspended the time in which she had to appeal, and no motion for an extension of time to appeal as permitted by Rule 32 of the family court rules.[4]Accordingly, we conclude that the circuit court did not err in denying petitioner's appeal due to its untimeliness.

         For the foregoing reasons, we affirm the circuit court's September 26, 2018, order denying petitioner's appeal from the family court's July 27, 2018, order designating respondent as the residential parent with overnight visitation ...


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