Siraaj M. v. Stephanie M. and West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcment

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
SIRAAJ M., May 1, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-288 (Fam. Ct. Jefferson Cnty. No. FC-19-2011-D-509)

STEPHANIE M. AND WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES, BUREAU FOR CHILD SUPPORT ENFORCEMENT,
Petitioners Below, Respondents

MEMORANDUM DECISION

Petitioner Siraaj M.1 appeals the “Final Modification Order” entered by the Family
Court of Jefferson County on November 7, 2022. Siraaj M. asserts that the family court
used the wrong child support calculation worksheet and failed to require Respondent
Stephanie M. to provide required financial disclosures. Stephanie M. and the Department
of Health and Human Resources, Bureau for Child Support Enforcement (“BCSE”)
responded in support of the family court’s order.2 Siraaj M. filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). The Court has considered the parties’ briefs and the record on appeal. For the
reasons expressed below, this case is remanded with directions to the family court to hold
a new hearing and enter a new child support order using worksheet B from West Virginia
Code § 48-13-502 (2001) for an extended shared parenting calculation.

Siraaj M. and Stephanie M. share three children: N.M., age eighteen; S.M., age
fifteen; and S.M., age twelve. On May 18, 2012, a final custody order was entered which
included the following provisions: (1) Stephanie M. was designated the primary residential
parent of all three children, (2) the parties had shared decision-making, (3) Siraaj M. had
parenting time on Sundays at 6:00 p.m. through Wednesdays at 3:30 p.m. as well as the
second Saturday of each month, (4) Siraaj M. was ordered to pay Stephanie M. $381.00

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
Siraaj M. and Stephanie M. are self-represented; the BCSE is represented by
Jennifer K. Akers, Assistant General Counsel.

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per month in child support, and (5) each parent received two consecutive weeks of
parenting time during summer vacation.

On February 17, 2017, an order was entered which increased Siraaj M.’s child
support obligation to $430.00 per month. On or about August 16, 2022, Stephanie M. filed
an additional petition for modification of child support due to an increase in Siraaj M.’s
income. The modification hearing was held on November 3, 2022. By order entered on
November 7, 2022, Siraaj M.’s child support was increased to $1,015.00 per month. It is
from the November 7, 2022, order that Siraaj M. now appeals.

For these matters, we are guided by the following standard of review:

“In reviewing . . . 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. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va. __, __, __ S.E.2d __, __, 2022 WL
17098574, at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005)
(specifying standards for appellate court review of family court order).

On appeal, Siraaj M. raises multiple assignments of error; however, they can be
distilled into two issues.3 We, therefore, will address the main grounds, combining those
that are duplicative. For his first assignment of error, Siraaj M. contends that the family
court erroneously used Worksheet A, which is the worksheet used for basic shared
parenting, to calculate his child support obligation. We agree. West Virginia Code § 48-
13-501 (2001) states, “[c]hild support for cases with extended shared parenting is
calculated using Worksheet B . . . in cases where each parent has the child for more than
one hundred twenty-seven days per year (thirty-five percent).” Pursuant to the custody
arrangement detailed in the May 18, 2012, order, Siraaj M. has more than one hundred
twenty-seven overnights per year. Therefore, Worksheet B should have been used to
calculate his child support obligation.

For his second assignment of error, Siraaj M. contends that the family court failed
to enforce Rule 13(a) of the West Virginia Rules of Practice and Procedure for Family
Court, which requires parties of child support proceedings to submit their three most recent
salary stubs and copies of the last two years’ income tax returns. Siraaj M. contends that

3
See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729
S.E.2d 231, 237 (2012) (stating that “the assignments of error will be consolidated and
discussed accordingly”).

2
the court accepted one nine-month-old paystub from Stephanie M., and, as a result, the
court made a biased, unlawful decision. We disagree. Although Stephanie M. only
submitted one paystub, she also provided testimony about her income. Rule 13(b) of the
West Virginia Rules of Practice and Procedure for Family Courts states, “[i]f a party fails
to file or untimely files any required financial information, the court may refuse to grant
requested relief to that party, and/or may accept the financial information of the other party
as accurate.” Pursuant to this rule, the family court may allow a party to proceed without
the filing of financial disclosures. Here, although the wrong child support calculation
worksheet was used, the family court had the discretion to receive testimonial evidence.

For the foregoing reasons, we remand this case to the Family Court of Jefferson
County with directions to conduct a new hearing to gather the necessary factual information
for a recalculation of child support using Worksheet B for extended shared parenting. The
clerk is directed to issue the mandate contemporaneously with this memorandum decision.

Remanded with directions.

ISSUED: May 1, 2023

CONCURRED IN BY:

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

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