Barbara N. v. Hannah G. and Eric S.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

BARBARA N.,
Petitioner Below, Petitioner

v.) No. 24-ICA-328 (Fam. Ct. Cabell Cnty. Case No. FC-06-2022-D-342)

HANNAH G. and ERIC S., FILED
Respondents Below, Respondent February 28, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION

Petitioner Barbara N.1 appeals the Family Court of Cabell County’s July 29, 2024,
order granting Respondent Eric S. $4,750 in attorney’s fees and granting Eric S.’s request
for a no-contact order in connection with a grandparent visitation matter. Neither Eric S.
nor Hannah G. participated in this appeal.2

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.3
For these reasons, a memorandum decision affirming the lower tribunal’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

Maternal grandmother Barbara N. (“Grandmother”), a Florida resident, filed a
petition for grandparent visitation on July 15, 2022. The grandchild is J.E. (“Child”), born
in 2013. Child’s father is Eric S. (“Father”), and her mother is Hannah G. (“Mother”). The
parents were never married but both were consistently active in Child’s life. Mother was
designated the primary residential parent by court order in May 2018. Grandmother visited
Child regularly both before and after filing the petition for grandparent visitation.

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
Barbara N. is self-represented.
3
We recognize our limited and circumspect review of a family court order in an
uncontested appeal, like this one, where the respondent failed to participate on appeal to
support the order.
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Sometime later, Mother married Shawn G., with whom she shares young children.
Shawn G. became abusive, and in May 2022, the family court entered an order designating
Father as the primary residential parent of Child. Mother was granted supervised parenting
time twice weekly through a third-party professional agency, as well as FaceTime calls.
Grandmother and Child’s siblings were permitted to participate in the supervised visitation.

Grandmother and Mother became estranged sometime in late 2022, which led
Grandmother to file for grandparent visitation. Hearings were held on Grandmother’s
petition on July 18, 2023, and July 19, 2023. Both parents objected to Grandmother having
any visitation with Child. Because Grandmother already had the right to visit with Child
during supervised visits, Father viewed her petition as an unnecessary filing and requested
attorney’s fees. A final order denying Grandmother’s petition was entered on September
21, 2023. The order also granted Father $4,000 in attorney’s fees.

Grandmother paid $5 per month to Father’s attorney between November 2023 and
July 2024, for a total of $40. Shortly thereafter, Father’s attorney filed a petition for
contempt against Grandmother for her failure to pay attorney’s fees. At the contempt
hearing on July 16, 2024, Grandmother testified that she had paid Father’s attorney $5 per
month, her income had not changed, she had paid $15,000 in her own attorney’s fees, she
had paid Mother’s visitation expenses, and that she spent $2,000 each for several trips to
West Virginia to attend hearings on her petition. Grandmother also testified that she had a
car payment for a new vehicle, recently vacationed at a beach resort, and received an
inheritance but spent it. Grandmother further testified that she attempted to visit Child at
Father’s home. Additionally, Grandmother testified that she incurred $152,000 in damage
to her home from Hurricane Ian and would attempt to pay more toward the attorney’s fees
once she received relief from her homeowner’s insurance.

Father testified that Child was very fearful and upset when Grandmother attempted
to visit her at his home and requested a no contact order to prohibit Grandmother from
contacting him, his family, and Child. Father’s attorney requested an additional $750 in
attorney’s fees for the contempt hearing.

The family court found that Grandmother failed to make any real effort to pay the
original $4,000 attorney’s fees award and found that Grandmother was in contempt of the
September 21, 2023, order. The court also granted Father’s attorney a judgment for $4,750
(the original $4,000 plus $750 for the contempt hearing) and granted Father’s request for a
no contact order. The final order was entered on July 29, 2024. It is from that order that
Grandmother appeals.

For these matters, 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

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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, Grandmother raised several related assignments of error, which we will
consolidate. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402,
729 S.E.2d 231, 237 (2012) (allowing consolidation of related assignments of error).

In Grandmother’s first, second, third, and fifth assignments of error, she asserts that
it was erroneous for the family court to issue a no contact order during a contempt hearing
when Father failed to request such relief in his petition for contempt and there was no
evidence presented which would warrant a no contact order between Grandmother and
Child. We disagree. West Virginia Code § 51-2A-2a addresses a family court’s jurisdiction
to restrict contact between parties and states as follows:

(a) A family court in its discretion may, at any time during the pendency of
any action prosecuted under chapter forty-eight of this code, restrict contact
between the parties thereto without a finding of domestic violence under
article twenty-seven of said chapter. This order shall not be considered a
protective order for purposes of section five hundred seven, article twenty-
seven, chapter forty-eight of this code. A court may enter a standing order
regarding the conduct expected of the parties during the proceeding. Any
standing order may restrict the parties from:
(1) Entering the home, school, business or place of employment of the other
for the purpose of bothering or annoying the other;
(2) Contacting the other, in person, in writing, electronically or by telephone,
for purposes not clearly necessary for the prosecution of the underlying
action or any obligation related thereto or resulting therefrom.

Here, Grandmother herself testified that she attempted to visit Child without permission at
Father’s home, and Father testified that Child became very fearful and upset during that
time. Therefore, we cannot find that Grandmother has shown that the family court’s no
contact order was clear error or an abuse of discretion and affirm the family court’s order
on these assignments of error.

In her fourth assignment of error, Grandmother contends that she filed a motion for
reconsideration along with her answer wherein she requested that her petition for visitation

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and the order awarding attorney’s fees be reconsidered but the family court failed to address
either. However, Grandmother failed to include her answer or motions in her appendix. We
have previously noted that “West Virginia Rule of Appellate Procedure 5(b) requires that
‘the party appealing shall file the notice of appeal and the attachments required in the notice
of appeal form contained in Appendix A of these Rules.” Campbell v. CSX Transportation,
Inc., No. 17-1034, 2019 WL 4257173, at *3 n.8 (W. Va. Sept. 9, 2019) (memorandum
decision). Because no documents were filed in support of her argument, we decline to
address Grandmother’s fourth assignment of error.

As her sixth assignment of error, Grandmother argues that the family court’s order
was erroneous because additional attorney’s fees plus interest were added for the contempt
hearing. We disagree. West Virginia Code § 48-1-305(c) (2001) states:

When it appears to the court that a party has incurred attorney fees and costs
unnecessarily because the opposing party has asserted unfounded claims or
defenses for vexatious, wanton or oppressive purposes, thereby delaying or
diverting attention from valid claims or defenses asserted in good faith, the
court may order the offending party, or his or her attorney, or both, to pay
reasonable attorney fees and costs to the other party.

Further, West Virginia Code § 48-10-1101 (2006) states, “[i]n an action brought under the
provisions of this article, a circuit court or family court may order payment of reasonable
attorney's fees and costs based upon the equities of the positions asserted by the parties to
pay such fees and costs.” Grandmother testified that she paid for Mother’s supervised
visitation expenses, had a new car payment, went on a vacation, and had received an
inheritance. Therefore, we cannot find that Grandmother has shown that the family court’s
award of attorney’s fees to Father was erroneous or an abuse of discretion and we affirm
the family court’s order on this assignment of error.

Lastly, Grandmother asserts that the family court received emails about the case
from a third party and that the judge should have recused herself. However, this Court does
not have jurisdiction to address recusals4 and there is no evidence that the family court was
prejudicial or biased in the proceedings below. See Xerxes R. v. Richard P., No. 24-ICA-
76, 2024 WL 5003524 (W. Va. Ct. App. Dec. 6, 2024) (memorandum decision) (holding
that a party must substantiate a claim that a judge was biased or prejudicial in violation of
due process rights). Thus, we find no error.

Accordingly, we affirm the family court’s July 29, 2024, order.

4
The process to seek to disqualify a judge is set forth in Rule 17 of the West Virginia
Trial Court Rules, pursuant to Rule 58(a) of the West Virginia Rules of Practice and
Procedure for Family Court.
4
Affirmed.

ISSUED: February 28, 2025

CONCURRED IN BY:

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

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