Siraaj M. v. Stephanie M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
July 1, 2024
SIRAAJ M.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-511 (Fam. Ct. Jefferson Cnty. No. FC-19-2011-D-509)

STEPHANIE M.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Siraaj M.1 (“Father”) appeals the Family Court of Jefferson County’s
October 17, 2023, final custody modification order which he alleges failed to address
multiple issues that he raised during the final hearing. Respondent Stephanie M.
(“Mother”) filed a response in support of the family court’s decision.2 Father filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This appeal involves the parties’ two minor children, aged sixteen and fourteen
respectively. Events leading to this appeal began on or about August 16, 2022, when
Mother filed a petition for modification of child support due to an increase in Father’s
income. The modification hearing was held on November 3, 2022, and the family court
used the basic shared parenting child support formula to calculate Father’s child support
obligation.3 By order entered on November 7, 2022, Father’s child support was increased
to $1,015.00 per month. Father appealed the November 7, 2022, order to this Court,
wherein he argued that the extended shared parenting child support formula should have

1
To protect the confidentiality of the juveniles 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
Both parties are self-represented.
3
See West Virginia Code § 48-13-301 (2023) for the chart showing basic shared
parenting child support guidelines.
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been used instead of the basic shared formula.4 On May 1, 2023, this Court entered a
Memorandum Decision remanding the matter to the family court with instructions to use
the child support formula for extended shared parenting to recalculate Father’s child
support. See Siraaj M. v. Stephanie M., No. 22-ICA-288, 2023 WL 3172034, at *1 (W. Va.
Ct. App. May 1, 2023) (memorandum decision). A remand hearing was held on June 12,
2023. During that hearing, the family court used the correct formula and calculated Father’s
new child support obligation to be $662 per month.

Mother filed a petition for contempt based on Father’s failure to pay child support.
By order entered on April 12, 2023, the family court dismissed the petition for contempt
but ordered Father to become current on his child support obligation. On May 22, 2023,
Father filed a petition for modification of child support. On June 2, 2023, Mother filed a
petition for the modification of custody. On June 13, 2023, Father filed a motion to have
the family court judge recused. The motion for recusal was denied by administrative order
entered by the Supreme Court of Appeals of West Virginia on June 22, 2023.

In June and July of 2023, Father filed the following: (1) an objection to the children’s
testimony; (2) objections to the child support remand order; (3) a writ of prohibition; (4)
an objection to child support wage withholding; (5) a request for the production of
documents under a Subpoena Duces Tecum; and (6) a motion to review. The writ of
prohibition was dismissed by the circuit court of Jefferson County on July 18, 2023.
Thereafter, Father filed with the family court: parenting plan pleadings, a motion in limine,
a petition for contempt, and a motion to reconsider.

The final modification hearing was held on September 28, 2023. At that hearing, the
family court denied Father’s motion in limine, stating that “to limit testimony would be [a]
denial of [Mother’s] rights to petition for [a custody] modification.” Father’s petition for
contempt was dismissed as moot because the family court already heard the arguments
alleged in the contempt petition. Father’s motion for reconsideration was dismissed as moot
because the child support issue contained therein had already been addressed. The family
court dismissed the remainder of Father’s motions and proceeded to hear Father’s petition
for the modification of child support and Mother’s petition for the modification of custody.

At the hearing on September 28, 2023, Father elicited testimony from a human
resources representative from Mother’s place of employment who presented pay stubs and
testimony showing that Mother earned $14.10 per hour and can earn an extra dollar per
hour if she works overtime. She further testified that Mother had worked approximately
forty to forty-five hours of overtime from January of 2023 to September of 2023. Mother
then testified that Father had not exercised any overnights since May of 2022 and had not

4
See West Virginia Code § 48-13-501 (2023), which explains the method used for
calculating child support for extended shared parenting cases where each parent has the
child for more than one hundred twenty-seven days per year.
2
regularly visited with the children since November of 2022. Mother also testified that
Father called the children names and shamed them such that they no longer desired to have
visits with him. Father testified that he has been in a facility to receive treatment for
alcoholism since August of 2022, that he had been sober for thirteen months, and that he
could not afford to move out of the residential facility due to his child support being too
high.

The final modification order was entered on October 17, 2023. In that order, the
family court calculated child support to be $575 under the extended shared formula and
$997 under the basic shared formula. Due to Father’s alcohol treatment and living situation,
the family court decided to deviate from the basic shared formula and split the difference
between the two calculations, which resulted in Father being ordered to pay $775 per month
in child support. The family court further held that Mother would have the children at all
times unless the parties agreed for Father to visit, and that the parties would have joint
decision-making. It is from the October 17, 2023, order that Father 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., No. 22-918, 2024 WL 2966177, __ W. Va. __, __
S.E.2d __ (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for
appellate court review of family court orders).

Father raises eight assignments of error on appeal that present interrelated issues;
accordingly, we consolidate his arguments as appropriate.5

Father asserts that the family court’s October 17, 2023, order did not properly weigh
the evidence that was presented during the final hearing. This argument lacks merit. The
clear error standard of review for a lower court’s factual findings is “highly deferential.”
Argus Energy, LLC v. Marenko, 248 W. Va. 98, 105, 887 S.E.2d 223, 230 (2023).

Demonstrating clear error is no mean feat. A finding is clearly erroneous
when, although there is evidence to support the finding, the reviewing court
on the entire evidence is left with the definite and firm conviction that a

5
See Bowden v. Monroe Cnty. Comm’n, 232 W. Va. 47, 51, 750 S.E.2d 263, 267
(2013) (per curiam) (consolidating assignments of error).
3
mistake has been committed. A party does not meet this burden by suggesting
that the findings are ‘maybe’ or ‘probably wrong.’ Rather, the challenged
factual finding must strike us wrong with the force of a five-week-old,
unrefrigerated dead fish.

Marenko, 248 W. Va. at 105, 887 S.E.2d at 230 (citations omitted). Here, Father expresses
his dissatisfaction and disagreement with the family court’s ruling, but he ultimately fails
to demonstrate how the family court’s factual findings constitute clear error.6 While we
allow a degree of leeway to pro se litigants arguing before us,7 appeals must still present
cognizable legal reasons to justify setting aside a court’s ruling on appeal. As such, we find
no basis in law to warrant relief on these issues.8

In his third assignment of error, Father avers that the family court ignored his
pleadings, responses, testimony, and filings on the record. We disagree. A review of the
transcript shows the family court heard all arguments presented by Father. With regard to
Father’s multiple pleadings, West Virginia Code § 51-2A-7(a)(1) (2013) gives family
courts the power to “[m]anage the business before them.” Additionally, Father failed to
state on appeal exactly how he suffered harm. See William M. v. W. Va. Bureau of Child
Support Enf’t, No. 20-0620, 2021 WL 3833867, at *3 (W. Va. Aug. 27, 2021)
(memorandum decision) (finding alleged error by family court harmless where petitioners
failed to show that they suffered prejudice or had their substantial rights adversely affected
by alleged error).

As his fourth assignment of error, Father contends that the family court deviated
from this Court’s mandate and memorandum decision in its June 12, 2023, hearing. We
decline to address this assignment of error because the timeframe for appeal long since
passed, as the final order from the remand hearing was entered on June 22, 2023, and the
notice of appeal in this proceeding was filed on November 16, 2023.

Fifth, Father asserts that the family court judge exhibited profound misconduct and
was a hindrance to his case. We decline to rule on this assignment of error, as this Court
lacks jurisdiction to hear allegations regarding alleged judicial misconduct. Rule 2 of the
West Virginia Rules of Judicial Disciplinary Procedure directs parties to file complaints

Father argues the family court overlooked his allegations of Mother’s: (1) acts of
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parental alienation; (2) parental unfitness; and (3) abuse of the judicial system.

See Cottrill v. Cottrill, 219 W. Va. 51, 55, 631 S.E.2d 609, 613 (2006) (requiring
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courts to provide “reasonable accommodations” to pro se litigants).
8
The above section consolidates Father’s first, second, and eighth assignments of
error.
4
against judges with the West Virginia Office of Disciplinary Counsel for violations of the
Code of Judicial Conduct.

Sixth, Father argues that the family court was very “loose” with his filings for
discovery and did not compel his witness or Mother to comply with the law or rules of
discovery. We disagree. A review of the transcript shows that the family court permitted
Father to examine a human resources representative from Mother’s workplace to develop
evidence regarding Mother’s employment salary. Over the course of the hearing, the
witness provided detailed information about Mother’s hourly wage and overtime hours
worked in 2023. Therefore, we conclude that the family court’s evidentiary rulings do not
constitute an abuse of discretion.

Seventh, Father asserts that he has over-paid child support in the amount of
$1,604.08 due to the family court’s error in the November 3, 2022, hearing and the family
court has not directed the Bureau for Child Support Enforcement to reimburse him. We
disagree. The order on remand was entered on June 22, 2023, and the timeframe to appeal
that issue has passed. Accordingly, we cannot conclude that the family court has committed
error.

For the reasons above, we affirm the family court’s October 17, 2023, order.

Affirmed.

ISSUED: July 1, 2024

CONCURRED IN BY:

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

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