Allen v. Allen

• Decision Date: 16 November 2009
• Docket Number: No. 34628.,34628.
• Citation: 701 S.E.2d 106,226 W.Va. 384
• Court: West Virginia Supreme Court
• Parties: Shelia D. ALLEN Plaintiff Below, Appellee, v. Michael L. ALLEN, Defendant Below, Appellant.

701 S.E.2d 106

226 W.Va. 384

Shelia D. ALLEN Plaintiff Below, Appellee,

v.Michael L. ALLEN, Defendant Below, Appellant.

No. 34628.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 2009.

Decided Nov. 16, 2009.

Syllabus by the Court

1. "In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, 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." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "The jurisdiction of family courts is limited to only those matters specifically authorized by the Legislature, while circuit courts have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West Virginia." Syllabus Point 5, in part, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).

3. "Pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution, W. Va.Code § 51-2-2 (1978), and the Family Court statutes, W. Va.Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the original jurisdiction of the circuit courts in this State." Syllabus Point 4, State ex rel. Silver v. Wilkes, 213 W.Va. 692, 584 S.E.2d 548 (2003).

4. To the extent that this Court's prior decision in Ray v. Ray, 216 W.Va. 11, 602 S.E.2d 454 (2004) (per curiam), and its progeny are inconsistent with this holding, they are expressly overruled.

5. A family court has continuing jurisdiction to enter, modify or reconsider a child support order in a domestic relations case, notwithstanding the fact that another order in the same case has been appealed to a higher court.

Shelia D. Elias, Letart, WV, Pro se.

Michael L. Allen, Spencer, WV, Pro se.

KETCHUM, Justice:

In the majority of civil court cases, litigation is supposed to secure a speedy and inexpensive determination of a disputed issue.¹ Unfortunately, in domestic relations cases, that is not always the guiding rule for parents who are asked to pay support for the benefit of their children.

The presence of two parties before a family court judge is easily viewed as a tacit admission of an irreparable relationship. At the conclusion of most family court cases, in the absence of a child, the parties go their separate ways. But in cases involving child parenting and support, the child's parents are compelled to continue to interact for many years until the child reaches the age of majority. Too often, the child's interests become a batted shuttlecock as one parent seeks to gain some immeasurable physical, financial or psychological advantage over the other.

For that reason, the jurisdiction of a family court in matters of child parenting and support is sui generis, wholly unique in character when compared to other types of actions.² Family courts are asked to provide a just, speedy and inexpensive determination of child support questions, and yet constantly inquire, tweak and adjust child support obligations for many years so that a child can share in his or her parents' ever-changing standard of living.

The instant appeal from the Family Court and the Circuit Court of Roane County asks that we delve into the parameters of the jurisdiction of the family courts. Specifically, we are asked to decide whether a family court loses the authority to consider questions of child support when an issue in a domestic relations case has been appealed to a higher court.

As set forth below, we find that a family court has continuing and exclusive jurisdiction in a domestic relations case to enter, modify or reconsider a child support order, notwithstanding the fact that another order in the same case has been appealed to a higher court.

I.Facts and Background

As this Court discussed in a prior opinion,³ the pro se parties-appellant Michael L. Allen and appellee Shelia D. Allen (now Elias)-were divorced on August 25, 1998. They are the parents of two children, and the record supports the family court judge's statement that "these parties are involved in one of the most bitter and highest of conflicts that the Court has ever witnessed" involving "constant fighting and bickering over the very last penny and minute, and every detail that they can think of to fight over." The family court judge expressed concern that the parties felt "the need to control one another through the use of the children and the court system," so much so that the "battle rises close to the level of child abuse." ⁴

To understand the subject-matter jurisdiction issue currently pending before the Court, it is helpful to understand the procedural quagmire that the parties were trapped in from 2002 to 2006.

On November 6, 2002, the family court entered an order modifying the parties' child support obligations. The family court found that Mr. Allen was unemployed but making "good faith efforts to become employed," and attributed minimum wage income to Mr. Allen. Mr. Allen was required to pay Ms. Elias $100.48 per month as support for the children.

On December 9, 2002, Ms. Elias (through her lawyer) filed a motion for reconsideration with the family court contending that the family court had not considered Mr. Allen's substantial variable income in the years preceding the family court's order. An order on the motion was not filed by the family court until February 1, 2005. In that order, the family court concluded that Mr. Allen had failed to properly disclose his variable income over the years, and found that his child support obligation should be recalculated back to the year 2000. The family court ordered the parties to appear at a hearing on February 9, 2005 to present evidence on the accurate incomes of the parties dating back to the year 2000.

Mr. Allen (acting pro se ) immediately appealed the family court's February 1, 2005 order to the circuit court. In an order dated November 18, 2005, the circuit court reversed the family court's order. The circuit court ruled that a motion for reconsideration of a family court order does not toll the appeal period, and ruled that a family court judge must statutorily rule on a motion to reconsider within 30 days.⁵ Because the family court in this case did not rule for over two years, the circuit court decided that the family court did not have jurisdiction to rule on Ms. Elias's motion for reconsideration, and thereby prohibited the family court from altering Mr. Allen's November 2002 child support obligation.

Ms. Elias then filed two pleadings which are relevant to the instant case. First, on February 9, 2006, Ms. Elias filed a petitionfor appeal of the circuit court's order with this Court. Second, on February 28, 2006, Ms. Elias filed a petition to modify the parties' child support obligations with the family court. The petition to modify was served on Mr. Allen on March 6, 2006.

On June 28, 2006, this Court unanimously refused Ms. Elias's petition for appeal. This Court's order was filed in the Circuit Court of Roane County on July 7, 2006.

Subsequently, a hearing was conducted before the family court, and on March 9, 2007, an order was filed modifying the parties' child support obligations. The family court found that Mr. Allen was self-employed and had $4,469.03 per month in income. The family court increased his support obligation to $630.49 per month, and ruled that because Mr. Allen was served with the modification petition in March 2006, his support obligation would take effect on April 1, 2006.

Mr. Allen immediately appealed the family court's order to the circuit court, arguing that because the case was on appeal to the Supreme Court of Appeals when Ms. Elias filed her petition to modify, the family court was without jurisdiction to ever act on the petition. Mr. Allen argued that the family court had only one option: to dismiss the modification petition.

In an order entered March 13, 2008, the circuit court reversed, in part, the family court's order. The circuit court partially agreed with Mr. Allen that the family court had no subject matter jurisdiction while the parties' domestic relations case was pending before the Supreme Court of Appeals. However, once this Court refused Ms. Elias's petition for appeal, the circuit court found that the family court's subject matter jurisdiction was once again "restored" and "acquired." The circuit court therefore "reverse[d] the Family Court's order to the extent that it is retroactive to a date prior to July 7, 2006." The circuit court otherwise affirmed the child support order.

Mr. Allen now appeals the circuit court's March 13, 2008 order.

II.Standard of Review

Our standard of review was succinctly stated in the Syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004):

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, 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.

III.Discussion

The primary argument made by the appellant, Mr. Allen, concerns the parameters of the subject-matter jurisdiction of the family courts. As we have previously stated, the family courts are courts of limited jurisdiction, and have only those powers specifically enumerated by the Legislature. See, Syllabus Point 5, in part, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003) ("The jurisdiction of family courts is limited to only those matters specifically authorized by the Legislature, while circuit courts have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the...