Hung-Ni W. v. Christopher W.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 29, 2025
HUNG-NI W.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-25 (Fam. Ct. of Jefferson Cnty. Case No. FC-19-2012-D-335)

CHRISTOPHER W.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Hung-Ni W.1 (“Mother”) appeals the Family Court of Jefferson County’s
December 17, 2024, order that held her in civil contempt for failing to pick up the parties’
child from Respondent Christopher W. (“Father”) when it was her parenting time.2 Father
did not participate in this appeal.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court’s decision but no
substantial question of law. For the reasons set forth below, a memorandum decision
vacating the family court’s order and remanding the matter for further proceedings is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

The parties were married in 2002 and divorced by final order entered on March 13,
2014. Two children were born during the marriage in 2006 and 2007.3 After the parties
separated, Mother relocated to Fairfax County, Virginia, approximately ninety minutes
from Jefferson County. The final divorce order entered on March 13, 2014, awarded
primary custody of the children to Mother. Father was awarded parenting time two
weekends every month, half of the summer break, and holiday visitation. Mother was
required to “pick the children up from Father” at the end of Father’s weekend parenting

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Mother is self-represented.
3
Contrary to the family court’s order referencing the “children,” the child born in
2006 has reached the age of majority and is not the subject of this appeal.

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times. The order was silent regarding the transportation requirements for summer and
holiday visitations.

At some point in 2024, both parties filed petitions for contempt. Mother’s petition
alleged that Father had not paid his portion of medical bills. Father’s petition alleged that
Mother had not been complying with the family court’s March 13, 2014, order since 2018
by failing to pick the children up from Father’s home after visitation. Thereafter, Mother
submitted a letter to the family court from her podiatrist dated June 27, 2024, which stated
the following:

[Mother] was under my care on 06/27/24. Based on the evaluation, it is
recommended that [Mother] has limitations regarding driving and should
avoid long distance walking due to pathology and associated pain. These
recommendations are crucial for managing the patients [sic] condition
promoting recovery.

On July 2, 2024, the family court held the first hearing on the parties’ contempt
petitions. The parties testified that the only child at issue was their seventeen-year-old son
because their other child had reached the age of majority. Father testified that the child
wanted to remain in the primary custody of Mother because of the child’s friends and that
Father did not ask for a modification of custody because he knew that the child would not
agree. The parties also testified that they had been deviating from the original parenting
agreement to accommodate their son’s active social life and lack of a driver’s license.

Father testified that he resides in Jefferson County during his parenting time, but at
other times, resides in Maryland with his current wife. He indicated that he must always
transport their son back to Virginia after his visitations because Mother refuses to travel
and pick up the child as previously ordered. The family court informed Mother that if she
wanted parenting time with son, she was required to drive to Father’s to get the child.
Otherwise, the child would simply remain at Father’s home. While Mother was permitted
to testify that she was unable to drive due to health issues, the family court refused Mother’s
attempts to present medical evidence to justify her failure to pick the child up from Father’s
home. Instead, the family court stated, “I am not giving anybody a break today for that. I
am here on a contempt.” The court noted that Mother would need to make other
arrangements for transportation if she could not drive, then concluded the hearing by
modifying the previous order to require the parties to meet halfway to exchange custody.
The family court also indicated that it was not holding Mother in contempt.

On November 12, 2024, the family court held the final hearing on the parties’
contempt petitions. During this hearing, the family court again denied Mother’s attempts
to present evidence regarding her medical condition and her corresponding inability to

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travel, even halfway, to facilitate visitation exchanges with Father as directed by the court
at the July 2, 2024, hearing.

By final order entered on December 17, 2024, the family court found that Mother
testified that she was unable to drive long distances and refused to travel to Father’s home
to pick up the child. The family court modified the March 13, 2014, order by requiring the
parties to meet at a specific location in Virginia to exchange the child.

The family court’s order also found Mother to be in willful civil contempt of its
prior orders for her failure and refusal to transport the children for parenting time with
Father. The court concluded that “FAILURE OF THE [MOTHER] TO COMPLY WITH
THIS ORDER MAY RESULT IN THE [MOTHER] FACING INCARCERATION FOR
SUCH FAILURE TO COMPLY.” It is from this order that Mother now appeals.

When reviewing the order of a family court, we apply the following standard of
review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Mother raises three assignments of error. First, Mother argues that the
family court abused its discretion by failing to consider that she was unable to presently
comply with the court’s March 13, 2014, order. We agree.

When a court entertains a petition for civil contempt, “the general rule is that the
burden of proof rests with the complaining party to demonstrate . . . that the [nonmoving
party] is in noncompliance with a court order.” Carpenter v. Carpenter, 227 W. Va. 214,
219, 707 S.E.2d 41, 46 (2011). Further, the moving party must also demonstrate that his or
her rights have been prejudiced by the contemnor's noncompliance. Id. After it has been
shown that a violation has occurred and prejudice has been suffered from the violation, the
burden shifts to the nonmoving party to establish any defenses. Id. As our Supreme Court
of Appeals (“SCAWV”) has explained:

So, where a court order and its violation are established or admitted, the
burden is on accused to show facts which will excuse his default, and if the
defense or excuse is that of inability to comply with the order, defendant has

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the burden of proving such inability, that it was real, and not occasioned by
his own acts. In 17 Am.Jur.2d Contempt [§] 61 (1964), the following
explanation is forwarded: A person who seeks to satisfy the court that his
failure to obey an order or decree was due entirely to his inability to render
obedience, without fault on his part, must prove such inability.

State ex rel. Zirkle v. Fox, 203 W. Va. 668, 672, 510 S.E.2d 502, 506 (1998).

Due process requires a family court to hold a hearing on the matter of contempt and
allow the contemnor the opportunity to present evidence in their defense. See Hoylman v.
Hoylman, No. 22-ICA-146, 2023 WL 1463945, at *2 (W. Va. Ct. App. Feb. 2, 2023)
(memorandum decision). As Mother points out on appeal, the SCAWV has long held that
a party cannot be held in civil contempt for failing to comply with a court order if they lack
the present ability to do so. See In re Yoho, 171 W. Va. 625, 631, 301 S.E.2d 581, 587
(1983). Here, however, Mother was not given the opportunity to present evidence to
support her contention that she was physically unable to comply with the family court’s
order. Rather, the family court summarily rejected Mother’s attempts to introduce medical
evidence and told Mother to make other arrangements to have her child transported. We
find that the family court abused its discretion by not affording Mother a meaningful
opportunity to present her defense that she lacked the present ability to comply with the
court’s directive. Therefore, the matter must be remanded to afford Mother a meaningful
opportunity to be heard. Consistent with our decision, we need not address Mother’s
remaining assignments of error.4

We express no opinion as to what the family court’s ruling should be after providing
Mother with a meaningful opportunity to present evidence in her defense. We simply hold,
that given the circumstances reflected in the record, the family court abused its discretion
by not permitting Mother the opportunity to produce evidence that she was unable to
comply with the court’s order. On remand, the family court should schedule a final hearing
on Father’s petition for contempt and provide the parties the opportunity to be heard in
accordance with Carpenter. The court shall thereafter enter an order with sufficient
findings of fact and conclusions of law to facilitate a meaningful appellate review should
either party choose to file a new appeal.

Accordingly, we vacate the December 17, 2024, final order and remand the matter
to the family court for further proceedings, consistent with this decision.

4
Mother’s remaining assignments of error are that the family court abused its
discretion when it: 1) failed to consider reasonable alternatives due to her inability to
comply with the order; and 2) made a contempt finding that was contrary to public policy
because it was used to punish her.

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Vacated and Remanded.

ISSUED: August 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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