David C. v. Mallory M. (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS David C., Petitioner Below, Petitioner FILED November 23, 2015 vs) No. 15-0063 (Hancock County 11-C-66) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Mallory M., Respondent Below, Respondent MEMORANDUM DECISION Petitioner David C., by counsel A. Courtenay Craig, appeals the Circuit Court of Hancock County’s December 19, 2014, order denying his petition for appeal from the family court.1 Respondent Mallory M., by counsel Christine Machel, filed a response. On appeal, petitioner alleges that the family court erred in denying his motion for relief from judgment upon erroneous findings of fact, without holding an evidentiary hearing, and without making sufficient findings for appellate review. 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 2010, the parties’ son, W.C.-M. was born. The parents never married. Following mediation between the parents, they submitted a mediation agreement to the family court in June of 2011 regarding parenting allocations that was to expire in 2013. However, the family court never approved this parenting plan. A second shared parenting plan was submitted to the circuit court, approved, and entered in November of 2011. In October of 2013, petitioner filed a petition to modify the parenting plan. He filed an amended petition in November of 2013. In April of 2014, the family court held a hearing on the petition to modify the parenting plan. Thereafter, by order entered on August 26, 2014, the family court entered a parenting plan that extended the summer parenting time for petitioner starting in 2016 when the child reaches school age and awarded attorney’s fees to respondent. The order, however, denied petitioner’s request to relocate the child to live with him in Huntington, West Virginia. The family court 1 Because this case involves custody of a minor child, the parties will be referred to by their last initials and the child will be referred to by his initials only throughout this memorandum decision. This is in keeping with this Court’s policy of protecting the identity of minors involved in custody matters. 1 based its order on the child’s best interests, finding that the child was stable, healthy, and had a close relationship with respondent. On September 25, 2014, petitioner filed a document entitled “Respondent’s Notice of Intent to Appeal.” However, no petition for appeal was filed at that time. On October 24, 2014, petitioner filed a motion for relief from judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure and a motion for an evidentiary hearing in the family court. The family court entered an order denying the motion for relief from judgment in November of 2014. On December 12, 2014, petitioner filed a document entitled “Legal Memorandum in Support of Petition for Appeal” in the circuit court. Several days later, the circuit court denied petitioner’s appeal. In ruling on the petition for appeal, the circuit court found that petitioner “never filed a [p]etition for [a]ppeal that complies with the requirements of Rule 28(c) of the Rules of Practice and Procedure for Family Court . . . .” Despite the fact that petitioner’s appeal was never properly filed, the circuit court nonetheless addressed petitioner’s assignments of error on appeal that concerned only the denial of his motion for relief from judgment. It is from the order denying his appeal that petitioner appeals. To begin, it is important to note that petitioner’s motion for relief from judgment in the family court and his appeal to the circuit court suffered from several procedural deficiencies. To begin, his motion for relief from judgment made pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure was improper, in that West Virginia Code § 51-2A-10(a) provides that a party to a family court proceeding may seek a reconsideration of an order for a list of reasons almost identical to that set forth in Rule 60(b). Second, as the circuit court pointed out, petitioner failed to file an appeal to the circuit court that complied with the applicable rules governing such appeals. Despite these procedural deficiencies, the circuit court ultimately applied a standard of review applicable to appeals of Rule 60(b) motions. As such, we review petitioner’s appeal under the following standard of review: “A motion to vacate a judgment made pursuant to Rule 60(b), W. Va. R.C. P., is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.” Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). Syl. Pt. 1, Builders’ Serv. and Supply Co. v. Dempsey, 224 W.Va. 80, 680 S.E.2d 95 (2009). Moreover, in addressing such appeals, we have held that “‘[a]n appeal of the denial of a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order.’ Syllabus Point 3, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Id. at 80, 680 S.E.2d at 96, syl. pt. 2. On appeal to this Court, petitioner reasserts his claims that the family court erred in denying his motion for relief from the judgment without first holding an evidentiary hearing, upon erroneous findings, and without making sufficient findings for appellate review. Additionally, petitioner alleges that the circuit court erred in denying his petition for appeal because it had an insufficient basis for the denial upon the family court’s order and that by relying on the underlying facts, the circuit court “opened up the facts behind the [f]amily 2 [c]ourt’s denial” of his motion. The Court, however, does not agree. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner’s appeal because he simply attempted to relitigate the underlying issues before the family court in consideration of its final order, which he failed to appeal. Our review shows that what petitioner alleges were mistakes and fraud in the family court’s final order were, simply, findings of fact with which petitioner did not agree. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s December 19, 2014, “Final Order” to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: November 23, 2015 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II 3

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