Charlene D. Fleshman, aka Charlene D. Christy v. James A. Fleshman

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
CHARLENE D. FLESHMAN, November 15, 2022
aka Charlene D. Christy, EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
Petitioner Below, Petitioner OF WEST VIRGINIA

vs.) No. 22-ICA-20 (Cir. Ct. Greenbrier Co. No. 22-D-AP-3)

JAMES A. FLESHMAN,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Charlene D. Fleshman appeals the Circuit Court of Greenbrier County’s
July 6, 2022, Order Refusing Appeal of the family court’s order denying her spousal
support which accrued during the pendency of an earlier appeal. Respondent James A.
Fleshman filed a response in support of the circuit court’s order. Petitioner did not file a
reply. 1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). This Court has considered the parties’ briefs and the record on appeal. 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 parties were divorced by final order entered on September 9, 2017, wherein
respondent was ordered to pay petitioner one thousand dollars ($1,000.00) per month
spousal support. Both parties appealed to circuit court which remanded the matter back to
family court. The family court entered a Corrected Divorce Order, wherein twenty-seven
hundred dollars ($2,700.00) monthly spousal support was awarded, effective May 7, 2018.
Respondent did not pay the twenty-seven hundred dollars ($2,700.00). Both parties
appealed and the circuit court again remanded to family court, where spousal support was
modified to one thousand dollars ($1,000.00) per month in an amended order on remand,
entered December 30, 2020. On February 4, 2020, petitioner filed a petition for contempt
to enforce the spousal support award that accumulated while the second appeal was

1
Petitioner is represented by Paul S. Detch, Esq. Respondent is represented by co-
counsel Michelle L. Bechtel, Esq., and Alyson A. Dotson, Esq.
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pending; petitioner also appealed the December 30, 2020, family court order. The circuit
court heard the appeal and remanded back to family court. On October 14, 2021, after
remand, the family court entered a Corrected Amended Order, which was appealed by
petitioner. The matter was heard by the circuit court and remanded back to the family court
with instructions. The family court entered its Second Corrected Order on Remand on
March 23, 2022. Pursuant to this Order, respondent was ordered to pay petitioner one
thousand dollars ($1,000.00) per month permanent spousal support dating back to
December 1, 2017. Petitioner appealed to circuit court, which refused her appeal.

Petitioner now appeals the circuit court’s refusal of her appeal of the family court’s
order denying her spousal support awarded in the May 7, 2018, order that accrued during
the pendency of its appeal to circuit court. We apply the same standard of review that is
applied by the Supreme Court of Appeals of West Virginia:

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.

Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). “‘Questions relating to
[spousal support]…are within the sound discretion of the court and its action with respect
to such matter [ ] will not be disturbed on appeal unless it clearly appears that such
discretion has been abused.’ Syl., in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d
36 (1977).” Syl. Pt. 2, Mulugeta v. Misailidis, 239 W. Va. 404, 801 S.E.2d 282 (2017);
accord Syl. Pt. 2, Petruska v. Petruska, 200 W. Va. 79, 488 S.E.2d 354 (1996).

Petitioner argues that spousal support must be paid during the pendency of an
appeal, pursuant to West Virginia Code § 51-2A-12(c) (2001), which states, “An order
granting a motion for a stay under the provisions of this section may not include a stay of
an award for the payment of spousal support or child support pending the appeal, except
that an award of past due child support may be stayed pending an appeal.” She argues that
it was error for the lower courts not to require respondent to pay her the twenty-seven
hundred dollars ($2,700.00) monthly spousal support pursuant to the May 7, 2018, order,
even though the award was later reversed.

In contrast, respondent argues that petitioner filed her contempt petition too late.
The contempt petition should have been filed while the award was in effect and the appeal
was pending, not after the family court’s order was reversed, remanded, and spousal
support was recalculated.

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After review, we find the circuit court did not abuse its discretion in refusing this
appeal based on the untimeliness of the contempt petition. Because the contempt action
was not commenced by petitioner during the timeframe that the May 7, 2018, order was in
effect, there is no avenue to enforce it.

Accordingly, we affirm.

Affirmed.

ISSUED: November 15, 2022

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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