Shawn D. v. Cynthia H.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
SHAWN D.,
December 6, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-145 (Fam. Ct. Kanawha Cnty. Case No. 21-D-475)

CYNTHIA H.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Shawn D.1 (“Father”) appeals the Family Court of Kanawha County’s
February 28, 2024, orders. In one order, the Order Regarding Respondent’s Motion For
Reconsideration Pursuant to Rule 60(b), the family court denied Father’s motion for
reconsideration of its December 18, 2023, order issued in Case No. 21-D-475, which held
Father in contempt. In the other order, the Amended Domestic Violence Protective Order,
entered in Case No. 23-DV-1180, the family court granted a domestic violence protective
order against Father. Respondent Cynthia H. (“Mother”) filed a response in support of the
family court’s orders.2 Father did not file a reply.

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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s Order Regarding
Respondent’s Motion For Reconsideration Pursuant to Rule 60(b) is appropriate under
Rule 21 of the Rules of Appellate Procedure. However, this Court lacks jurisdiction to
address the Amended Domestic Violence Protective Order.

The parties were never married but share two minor children. This appeal is based
on an order disposing of a motion to vacate and set aside two separate orders of the family
court entered in two separate cases between the parties. One of the actions was a domestic
action assigned Case No. 21-D-475 (“Contempt Matter”). That action began when Mother

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last names 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
Father is represented by Ronald N. Walters, Jr., Esq. Mother is represented by
Erica Lord, Esq.

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filed a petition to establish custodial allocation of the parties’ children. On September 3,
2021, the family court entered an order granting the parties 50-50 custody of the children.
At the time of the final hearing, both parties were represented by counsel. The second case
began when Mother filed a petition for a domestic violence protective order. That matter
was assigned Case No. 23-DV-1180 (“Domestic Violence Matter”). On December 23,
2023, the magistrate court entered an emergency domestic violence protective order and
eventually, on January 3, 2024, the family court granted a final domestic violence
protective order against Father in favor of Mother.

Events leading to the Contempt Matter began on October 13, 2023, when Mother
filed her petition for contempt. The basis for the petition was that Father had taken one of
the children from Mother’s work during her parenting time without her knowledge and
took the child to a football game and concert. The petition alleged that law enforcement
had to get involved to return the child to Mother. The petition also alleged that Father
would make Mother wait inordinate amounts of time to pick up the children from him. The
petition also asserts violation of a domestic violence protective order. On October 31, 2023,
the family court entered a rule to show cause order that set a hearing on the petition for
December 12, 2023. On December 11, 2023, Father filed his pro se answer to the petition
which denied the allegations and set forth many factual allegations against Mother. The
next day, the day of the scheduled hearing, Father filed a motion to continue the hearing
on the basis that due to the holidays, it had been difficult to find counsel. Father asserted
that he contacted five attorneys who all had scheduling conflicts.

On December 18, 2023, the family court entered its Final Contempt Order. In that
order, the family court noted that it heard the sworn testimony of the family court’s clerk
that when Father filed his motion to continue, he was informed by the clerk that it would
likely not be granted due to its last-minute nature. The clerk further testified that Father
told her that he refuses to attend the hearing due to the way the family court judge made
him feel over the last few hearings and that he had “had it” with the family court judge.
The clerk then testified that she later called Father at the direction of the family court to
inform him that Mother’s counsel objected to the continuance and therefore the hearing
would go on as planned. The clerk testified that Father informed her that he had filed an
ethics complaint against the family court judge the day before and he was told by the
Judicial Investigation Commission that there was an active investigation into the family
court judge and the judge was to be recused. The family court judge noted that it had not
seen a motion for disqualification or been contacted by the Judicial Investigation
Commission. The family court then went on to strike Father’s answer to the petition as
untimely filed as it was filed within forty-eight hours of the hearing; conclude that Father’s
actions were meant to delay the matter and intimidate the family court from hearing the
matter before it; found Father’s last minute pleadings to be procrastinating and dilatory and
therefore denied the motion to continue; and finally, the family court made findings
consistent with the allegations in the petition and found Father in contempt. The family

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court ordered Father to pay a $500.00 civil penalty and attorney’s fees and costs in the
amount of $2,500.00. On January 3, 2024, counsel for Father filed his notice of appearance.

Turning to the Domestic Violence Matter, on December 23, 2023, Mother filed a
petition for a domestic violence protective order on the basis that there was a disagreement
over the parties’ son going to a football tournament in South Carolina. On December 23,
2023, the magistrate court entered an ex parte emergency domestic violence protective
order and set the matter for a final hearing before the family court on January 3, 2024.
Following the hearing, on the same date, the family court entered a final domestic violence
protective order against Father in favor of Mother. On January 10, 2024, Father’s counsel
filed his notice of appearance.

On February 12, 2024, Father, through counsel, filed his Motion to Vacate and Set
Aside Judgment Pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. The
motion asserted that there was a defect in service regarding the domestic violence petition
filed by Mother and therefore the family court lacked jurisdiction to enter the protective
order against Father. The motion further asserted that the order in the Contempt Matter
should be set aside because Father should have been granted a continuance to find counsel.
Mother responded in opposition to the motion. On February 13, 2024, Father filed another
answer to the petition for contempt, this time through counsel, and on February 15, 2024,
filed a motion to permit his witnesses to testify telephonically. Mother moved to strike the
answer on the basis that the Contempt Matter had already been decided by the family court
and to strike the motion to permit telephonic testimony as untimely filed within forty-eight
hours of the scheduled hearing. Either at or after the February 15, 2024, hearing, Father
filed motions to appoint a guardian ad litem, to compel in camera testimony of the minor
child, and a motion to testify telephonically, and Mother responded to each. Mother also
filed a motion to quash a subpoena directed at her former doctor on the basis that it had no
purpose other than to harass and embarrass her.

On February 28, 2024, the family court entered the orders on appeal. In the Order
Regarding Respondent’s Motion for Reconsideration Pursuant to Rule 60(b), 3 the family

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The parties below and the family court discussed the motion for reconsideration in
terms of Rule 60(b) of the Rules of Civil Procedure rather than West Virginia Code § 51-
2A-10. We have recognized that “[i]n Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d 454,
457 n.13 (2004), (overruled on other grounds), the Supreme Court of Appeals of West
Virginia found that motions pursuant to West Virginia Code § 51-2A-10 have replaced
motions for relief from judgment under Rule 60(b) of the West Virginia Rules of Civil
Procedure in the family court.” Kierstyn C. v. Justin B., No. 23-ICA-200, 2024 WL
1256070, at *4 (W. Va. Ct. App. Mar. 25, 2024) (memorandum decision). Of course, “the
grounds for relief under W. Va. Code § 51–2A–10(a) are almost identical to those
contained in Rule 60(b).” Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d 454, 457 n.13
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court denied Father’s Rule 60(b) motion in regard to the Contempt Matter on the basis that
the grounds asserted in the motion were insufficient to grant the relief requested under the
rule. The family court held the portion of the Rule 60(b) motion regarding the Domestic
Violence Matter in abeyance. However, the family court separately entered the Amended
Domestic Violence Protective Order, which granted a final domestic violence protective
order in favor of Mother against Father.4

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, Father asserts that the family court erred in denying his reconsideration
as it pertains to the Contempt Matter because the family court should have granted Father
a continuance. We disagree. The Supreme Court of Appeals of West Virginia has long held
that “[i]t is well settled as a general rule that the question of continuance is in the sound
discretion of the trial court, which will not be reviewed by the appellate court, except in
case it clearly appears that such discretion has been abused.” Syl. Pt. 1, Levy v. Scottish
Union & Nat'l Ins. Co., 58 W.Va. 546, 52 S.E. 449 (1905). Given the last-minute nature of
Father’s motion to continue and Mother’s objection to the same, the family court did not
abuse its discretion by failing to grant Father a continuance. Accordingly, the family court

(2004), overruled on other grounds by Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106
(2009).
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On March 7, 2024, the family court entered its Final Contempt Order Regarding
Respondent’s Failure to Pay Civil Penalty and Failure to Pay Attorney Fees and Costs
which held that Father failed to pay the $500.00 civil penalty and the $2,500.00 attorney’s
fees as ordered, and therefore the family court ordered Father’s incarceration until he could
purge himself of contempt by paying the civil penalty and attorney fees award. The order
goes on to note that shortly after Father was taken into custody, someone from a local
church wrote two checks to satisfy the purge. Therefore, the family court concluded that
Father had purged himself of contempt.

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did not err by denying Father’s motion for reconsideration in regard to the Contempt
Matter.

Father’s remaining assignments of error pertain to the Amended Domestic Violence
Protective Order. However, we decline to address these assignments of error because this
Court lacks jurisdiction over “final orders issued by a family court in any domestic violence
proceeding[.]” W. Va. Code § 51-11-4(b)(2) (2024). Although the family court essentially
consolidated the domestic violence matter with the contempt matter, this Court has
previously held that consolidation by the lower court of a matter that this Court does not
have jurisdiction over with a matter over which this Court does have jurisdiction does not
bestow appellate jurisdiction over both matters. See SWN Prod. Co., LLC v. City of Weirton
Bd. of Zoning Appeals, No. 23-ICA-405, 2024 WL 1730044, at *3 (W. Va. Ct. App. Apr.
22, 2024) (memorandum decision). Accordingly, this Court declines to address the
assignments of error based on the Domestic Violence Matter pursuant to West Virginia
Code § 51-11-4(b)(2).

Therefore, based on the foregoing, the February 28, 2024, Order Regarding
Respondent’s Motion For Reconsideration Pursuant to Rule 60(b) of the Family Court of
Kanawha County is affirmed.

Affirmed.

ISSUED: December 6, 2024

CONCURRED IN BY:

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

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