Ashley M. v. Edward Z.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
January 12, 2024
ASHLEY M.,
C. CASEY FORBES, CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 23-ICA-123 (Fam. Ct. Hancock Cnty. No. FC-15-2019-D-85)

EDWARD Z.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Ashley M.1 appeals the Family Court of Hancock County’s February 24,
2023, March 24, 2023, and March 30, 2023, orders which collectively awarded Respondent
Edward Z. $17,848.50 in attorney’s fees. Edward Z. filed a response in support of the
family court’s order.2 Ashley M. 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 that there is error in the family court’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the family court’s decision is vacated, and this case is
remanded for further proceedings consistent with this decision.

Ashley M. and Edward Z. are divorced and share one child, E.Z. Prior to the issues
which led to this appeal, the parties shared a week-on/week-off custody arrangement. On
March 19, 2021, E.Z. was injured while skating and informed Ashley M. that Edward Z.
expressed anger about the injury and warned E.Z. not to inform Ashley M. about her injury.
E.Z. told Ashley M. that she would like to talk to a counselor because she was afraid of
Edward Z.’s anger. Ashley M. contacted E.Z.’s school counselor, who later informed
Ashley M. that E.Z. alleged significant and specific physical abuse by her father and had
attempted to harm herself. The school counselor, as a mandatory reporter, contacted Child

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
Ashley M. is represented by Andrew Beatty, Esq. Edward Z. is represented by
Sherrilyn F. VanTassel, Esq.

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Protective Services (“CPS”), which set up a forensic interview for June 10, 2021. During
her forensic interview, E.Z. again disclosed physical abuse. Edward Z. agreed to have no
visitation with E.Z. during the investigation process.

On July 6, 2021, Ashley M. filed a domestic violence petition against Edward Z. on
behalf of E.Z. As grounds for her petition, she alleged physical abuse and threats of harm
to E.Z. by Edward Z., concern of E.Z. harming herself if visitation with Edward Z. were
enforced, and threats by Edward Z. towards Ashley M.

Ultimately, CPS did not substantiate the alleged maltreatment of E.Z. but the agency
recommended that E.Z. begin trauma therapy. Ashley M., E.Z.’s maternal grandfather, and
Ashley M.’s husband reported to CPS that they were surprised about the abuse that E.Z.
disclosed because, although Edward Z. had threatened physical harm to Ashley M. in the
past, they never feared that he would abuse E.Z.

The final domestic violence hearing was scheduled for October 25, 2021, but the
parties agreed to terminate the domestic violence petition in lieu of an agreed temporary
custody order, which would allow Edward Z. to return to work in full capacity as a law
enforcement officer. The temporary custody order held that Ashley M. was the primary
residential parent and that Edward Z.’s only contact with the child would be through her
therapist.

A status conference was held on December 13, 2021. Subsequently, in February of
2022, Edward Z. filed a proposed parenting plan and supporting documents, as well as
interrogatories and a motion to compel discovery. At that time, Ashley M. was in the
process of obtaining new counsel and had filed a motion for additional time to respond to
Edward Z.’s discovery requests.

On February 17, 2022, the family court held a pretrial conference, during which it
granted Edward Z.’s motion to compel and gave Ashley M.’s new attorney until February
25, 2022, to respond to Edward Z.’s discovery requests. In its February 17, 2022, order,
the family court noted that Edward Z.’s attorney had made an oral claim for attorney’s fees
and held that the issue would be addressed “at the conclusion of the proceeding on
substantive matters set for trial.” The parties filed an agreed parenting plan on April 19,
2022, wherein they agreed to an alternating weekly schedule with shared decision-making.

On April 19, 2022, the family court entered an order setting forth the timeline by
which the parties would file documentation regarding Edward Z.’s request for attorney’s
fees. Edward Z. submitted a memorandum in support of his request for attorney’s fees and
based his argument on Rule 11 of the West Virginia Rules of Practice and Procedure for

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Family Court3 and West Virginia Code § 48-9-209(d) (2022).4 Counsel for Ashley M.
submitted a memorandum opposing the award of attorney’s fees.

On February 24, 2023, the family court entered a final order granting Edward Z.’s
request for attorney’s fees under Rule 11 of the Rules of Practice and Procedure for Family
Court for all services rendered between December 13, 2021, and March 25, 2022. The
attorney’s fees were awarded based on Ashley M.’s “willful failure to make diligent inquiry
to the end of resolving this matter by agreement earlier than March 25, 2022 (when the
parenting agreement was signed)” and the family court further held that Ashley M.’s
behavior satisfied the “standard of clear and convincing evidence.”

On March 23, 2023, Edward Z. filed a motion for reconsideration, wherein he
requested additional attorney’s fees. The family court entered its first order on March 24,
2023, granting Edward Z.’s original request for attorney’s fees in the amount of $7,848.50.
A second order was entered on March 30, 2023, granting Edward Z.’s motion for

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Rule 11 of the Rules of Practice and Procedure for Family Court requires, in part,
that: (1) a party will not advocate for an improper purpose or to cause unnecessary delay;
(2) a party’s allegations have or will have evidentiary support; and (3) the violating party
will receive notice and have an opportunity to respond to the allegations. More specifically,
Rule 11(c)(1) states that a motion for sanctions shall: (1) be made separately from other
motions; (2) describe the specific violating conduct; and (3) be served as provided in Rule
5 of the Rules of Civil Procedure but shall not be filed with the court unless the violation
is not corrected within 21 days after service of the motion. Further, Section (c)(2) states
that “[a] sanction imposed for violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct. . . .” Lastly, Section (d) states that this rule does “not apply
to discovery requests, discovery responses, discovery objections, and discovery motions.”
4
West Virginia Code § 48-9-209(d) states:

If the court determines, based on the investigation described in part III of this
article or other evidence presented to it, that an accusation of child abuse or
neglect, or domestic violence made during a child custody proceeding is false
and the parent making the accusation knew it to be false at the time the
accusation was made, the court may order reimbursement to be paid by the
person making the accusations of costs resulting from defending against the
accusations. The reimbursement may not exceed the actual reasonable costs
incurred by the accused party as a result of defending against the accusation
and reasonable attorney's fees incurred.

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reconsideration for an additional $10,000 in attorney’s fees, for an aggregate total of
$17,848.50. It is from those orders that Ashley M. now appeals.

Our standard of review is as follows:

“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., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (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, Ashley M. raises one assignment of error. She asserts that the family
court erred when it determined that she acted in bad faith by clear and convincing evidence
and that her behavior warranted the award of Edward Z.’s attorney’s fees. In support of her
assignment of error, Ashley M. asserts that she did not act in bad faith, that Rule 11 is
inapplicable because it was not followed by Edward Z. or the family court, and that the
family court failed to consider the reasonableness of the requested attorney’s fees before
issuing its orders. Upon review, we find that Ashley M.’s arguments have merit.

We find that the family court’s award of attorney’s fees (expressly based upon Rule
11) was improper because the procedures in Rule 11 were not followed. Rule 11 requires
that a motion for sanctions be made separately, describe the violating conduct, and be
served upon the violating party. Additionally, the violating party shall have twenty-one
days to correct the behavior. If the violating behavior is not corrected within twenty-one
days, the motion may be filed with the family court. Here, none of those actions were taken.
See W. Va. R. Prac. & Proc. Fam. Ct. 11.

Accordingly, we vacate the family court’s February 24, 2023, March 24, 2023, and
March 30, 2023, orders, as the procedural requirements of Rule 11 of the West Virginia
Rules of Practice and Procedure for Family Court were not followed. This matter is
remanded for the family court to conduct further proceedings consistent with this decision.

Vacated and Remanded with Directions.

ISSUED: January 12, 2024

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CONCURRED IN BY:

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

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