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Office of the ClerkCase Topics: Family
Information and news about WV Supreme Court cases in the area of family law
?Wednesday, July 16, 2008
Jnauary term opinions summarized
Posted today were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.
CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.)
??[Permanent Link] ?Google It!?ABUSE & NEGLECT :: GAL request to amend petition
IN RE: SUMMER D., No. 33386 (Per Curiam)(February 26, 2008). Reversing an order of the Circuit Court of Brooke County that denied a motion by the guardian ad litem to amend an abuse & neglect petition. Holding that the circuit court erred in denying the motion to amend, because reasonable cause to believe additional abuse and neglect is imminent, but not encompassed by the allegations of the petition. Holding that the record is insufficient to determine the ability of the father to parent the child. Remanding for further proceedings.
??[Permanent Link] ?Google It!?ABUSE & NEGLECT, GUARDIANSHIP :: Infant guardianship, overlap
IN RE: ABBIGAIL FAY B., No. 33716 (DAVIS, J.)(May 23, 2008). Affirming an order of the Circuit Court of Cabell County that denied an infant guardianship petition sought by the maternal grandparents, and returned the child's custody to her biological parents. Concluding that the circuit court properly determined that the appellants did not carry their burden of proving that the child was abused or neglected and failed to show that the biological mother was not a fit parent. Clarifying the circumstances in which a guardian may be appointed, and addressing aspects of Family Court Rule 48a, wherein allegations of abuse and neglect arise in family court and are subsequently transferred to circuit court for disposition.
??[Permanent Link] ?Google It!?CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support
STATE v. DAVID GABRIEL STAMM, No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial.
??[Permanent Link] ?Google It!?FAMILY, PROCEDURE :: Home state under U.C.C.J.E.A.
ROSEN v. ROSEN, No. 33437 (BENJAMIN, J.)(June 26, 2008). Affirming an order of the Circuit Court of Monongalia County that affirmed a family court ruling that retained jurisdiction over child custody matters. Construing application of the Uniform Child Custody Jurisdiction and Enforcement Act, and setting forth guidance for the term "home state" as used therein. Holding that the family court properly concluded that West Virginia is the home state, and because Ohio did not have jurisdiction, the family court did not violate the full and faith and credit clause by ignoring the Ohio court's order.
??[Permanent Link] ?Google It!?FAMILY :: Child support calculation under different parenting arrangements
SOULSBY v. SOULSBY, No. 33661 (DAVIS, J.)(April 4, 2008). Granting mixed relief from an order of the Circuit Court of Putnam County that denied a petition for appeal from a family court order setting child support. Holding that the family court has authority to deviate from the statutory child support guidelines in certain circumstances. Holding that strict application of the child support guidelines results in an inequitable result where, as here, one parent has physical custody of two children, but the children are governed by two separate parenting arrangements. Holding that the child support obligation should be reduced by the percentage of time spent by the obligor parent under the extended shared parenting arrangement. Strongly urging the Legislature to provide guidance on this issue.
??[Permanent Link] ?Google It!?FAMILY, CONTEMPT, PROCEDURE :: Contempt sanctions properly imposed by family court
DEITZ v. DEITZ, No. 33446 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Gilmer County that affirmed a family court's determination that Mr. Deitz was in contempt, but reversed the contempt sanctions and remanded with instructions. Holding that the circuit court lacked jurisdiction to issue a sua sponte stay of the family court's order. Holding that the circuit court properly exercised jurisdiction over the timely appeal, but improperly modified the conditions attached to the contempt order; in light of the facts of the case, the short time periods to purge the contempt were not unreasonable. Further holding that the circuit court erred in determining that the family court failed to consider Mr. Deitz's ability to pay, in light of the evidence in the record, and further in light of Mr. Deitz's lack of proof on that issue. Finally holding that the circuit court erred in reversing the family court's sanction of imprisonment. Remanding with specific directions.
??[Permanent Link] ?Google It!?FAMILY, PROCEDURE :: Certificate of service on petition is mandatory
GUIDO v. GUIDO, No. 33599 (Per Curiam)(Albright, J., and Starcher, J., dissenting)(June 18, 2008). Affirming an order of the Circuit Court of Marion County that denied a petition for appeal from a decretal judgment for child support arrearages in the total amount of $22,767.17, on the basis that the petition was not properly completed. Holding that the requirement of service in W.Va. Code 51-2A-11(b) is mandatory, and that lack of a certificate of service upon the obligee and the Bureau for Child Support Enforcement is violation of a mandatory requirement, not a mere technical violation of procedural rules.
??[Permanent Link] ?Google It!?FAMILY, PROCEDURE :: Appeal period is not jurisdictional
CREA v. CREA, No. 33656 (MAYNARD, C.J.)(June 18, 2008). Affirming an order of the Circuit Court of Jefferson County that denied a petition for appeal from a family court final order. Holding that the family court properly allocated marital debt between the parties, properly denied a credit for reduction in mortgage principle, and properly awarded alimony. Clarifying the Court's prior holding in WASHINGTON v. WASHINGTON, 221 W.Va. 224, 654 S.E.2d 110 (2007), and holding that the thirty-day appeal deadline set forth in Family Court Rule 28(a) is not jurisdictional, and may be extended for good cause. The petition under consideration was not timely filed, an no motion seeking an extension was presented. Accordingly, the circuit court's decision is correct.
??[Permanent Link] ?Google It!?FAMILY, PROPERTY :: Transfer of real estate prior to final divorce order
WHITESIDE v. WHITESIDE, et al., No. 33514 (MAYNARD, C.J.)(Benjamin, J., disqualified)(Judge Alsop, by temporary assignment)(May 28, 2008). Reversing an order of the Circuit Court of Kanawha County that denied an appeal from family court in which the appellant sought to void a deed conveying her ex-husband's share of certain marital property to the intervenor below, Equity Holdings, LLC. Setting forth criteria for evaluating whether a transfer of property prior to the effective date of a final order of equitable distribution is valid. Because Equity Holdings had actual notice of the divorce proceedings and also knew of the appellant's intention to make claims against her ex-husband's share of the property, Equity Holdings is not a bona fide purchaser. Further holding that Mr. Whiteside's actions clearly establish an intent to avoid application of the equitable distribution statutes. Remanding for entry of an order voiding the deed, and for determination of a reasonable amount of attorney fees, pursuant to West Virginia Code 48-5-611(c), from either Mr. Whiteside or Equity Holdings, or from both jointly and severally.
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