Berkeley County 14-D-1146
Yeshiareg Mulugeta, by counsel Gregory A. Bailey, appeals the
August 23, 2018, order of the Circuit Court of Berkeley
County that denied her motion to reconsider its order
dismissing her appeal of the Family Court of Berkeley
County's January 19, 2018, order that recalculated her
spousal support award in this divorce case. Respondent
Dimitri Misailidis, by counsel Cinda L. Scales, filed a
response in support of the circuit court's order.
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. This case satisfies the
"limited circumstances" requirement of Rule 21(d)
of the West Virginia Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.
For the reasons expressed below, the decision of the circuit
court is reversed, and this case is remanded to the circuit
court with directions to reinstate petitioner's appeal of
the family court's January 19, 2018, order, and to rule
on the merits of that appeal.
filed a petition for divorce following the parties'
lengthy marriage. The family court granted the divorce and
awarded petitioner permanent spousal support. Petitioner
appealed the amount of that award. By order entered April 15,
2016, the circuit court affirmed the family court's final
order. Petitioner appealed the circuit court's order to
this Court. We held that petitioner's spousal support
award was "patently unfair." Mulugeta v.
Misailidis, 239 W.Va. 404');">239 W.Va. 404, 411, 801 S.E.2d 282, 289
(2017). Accordingly, we affirmed in part, reversed in part,
and remanded the case to the family court for a hearing on
spousal support. On remand, the family court increased
petitioner's monthly spousal support award by order
entered January 19, 2018.
February 20, 2018, petitioner timely appealed the family
court's order to the circuit court. Petitioner argued
that the family court's spousal support award was
inadequate and contradicted this Court's instructions in
Mulugeta. Petitioner gave respondent additional time
to file a response. Respondent filed his response on March
four months later, on Friday, July 13, 2018, the circuit
court issued an order directing petitioner "to file a
DVD copy of the family court's hearing to the circuit
court's mail receptacle within twenty-one days."
Therefore, the DVD was due to the circuit court by Friday,
August 3, 2018. Petitioner's counsel requested the DVD
copy from the Berkeley County Family Court on Friday, July
27, 2018, seven days before it was due, and two weeks after
the circuit court issued its Friday, July 13, 2018, order.
order entered Monday, August 6, 2018, the circuit court,
which had not yet received the DVD, dismissed
petitioner's appeal because her counsel failed to deliver
the DVD by Friday, August 3, 2018. On Wednesday, August 8,
2018, petitioner's counsel hand-delivered the DVD to the
circuit court, three business days after it was due.
Petitioner's counsel also filed a motion asking the
circuit court to reconsider its August 6, 2018, order
dismissing petitioner's petition for appeal.
August 23, 2018, the circuit court denied petitioner's
motion to reconsider its dismissal of her appeal. The circuit
court found, in total, as follows:
By letter dated July 27, 2018[, ] to Family Court Judge Sally
Jackson, [petitioner's] counsel requested the DVD copy of
the underlying hearing. Pursuant to Rule 5(b) of the Rules of
Practice and Procedure for Family Court, "[a] party may
obtain a copy of a recording of the proceedings in the
party's case by filing with the circuit clerk a written
request . . . ." The Family Court Circuit Clerk's
Office received the July 27, 2018[, ] correspondence on
August 2, 2018[, ] and the request was completed on August 6,
2018, after the court-imposed deadline of August 3, 2018.
The Court finds that the delay in [petitioner's] counsel
providing this Court with the recording is not due to any
dilatory action on the part of the Family Court Circuit
Clerk's Office. The Family Court Circuit Clerk's
Office provided the recording to [petitioner's] counsel
in less than two (2) business days. The Court finds that the
delay was caused by [petitioner's] counsel waiting two
(2) weeks to request the recording after the July 13, 2018[,
] Order was entered directing [petitioner] to provide the
recording in twenty-one  days.
now appeals the August 23, 2018, order denying her motion to
reconsider the dismissal of her appeal. The Court reviews the
imposition of sanctions by a circuit court under an abuse of
discretion standard. See generally Syl. Pt. 1,
Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332
S.E.2d 127 (1985).
appeal, petitioner argues that the circuit court abused its
discretion by dismissing her petition for appeal as a
sanction for her counsel's failure to supply the circuit
court with a DVD recording of the family court hearing within
held that the
[i]mposition of sanctions of dismissal and default judgment
for serious litigation misconduct pursuant to the inherent
powers of the court to regulate its proceedings will be
upheld upon review as a proper exercise of discretion when
trial court findings adequately demonstrate ...