Burton v. Burton

• Decision Date: 19 November 2008
• Docket Number: No. 33729.,33729.
• Citation: 672 S.E.2d 327
• Parties: In re the Marriage of: Ralph BURTON, Petitioner/Respondent Below, Appellee v. Bonnie Sue BURTON, Respondent/Petitioner Below, Appellant.
• Court: West Virginia Supreme Court

672 S.E.2d 327

In re the Marriage of: Ralph BURTON, Petitioner/Respondent Below, Appellee v. Bonnie Sue BURTON, Respondent/Petitioner Below, Appellant.

No. 33729.

Supreme Court of Appeals of West Virginia.

Submitted September 24, 2008.

Decided November 19, 2008.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

4. "When a party filing a motion for reconsideration does not indicate under which West Virginia Rule of Civil Procedure it is filing the motion, the motion will be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment order. If the motion is filed within ten days of the circuit court's entry of judgment, the motion is treated as a motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-day limit, it can only be addressed under Rule 60(b)." Syl. Pt. 2, Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996).

5. "A motion which would otherwise qualify as a Rule 59(e) motion that is not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how styled and does not toll the four month appeal period for appeal to this court." Syl. Pt. 3, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992).

6. "Rule 28(a) of the West Virginia Rules of Practice and Procedure for Family Court is not jurisdictional and may be extended for good cause. To the extent that Washington v. Washington, 221 W.Va. 224, 654 S.E.2d 110 (2007), is inconsistent with this holding, it is overruled." Syl. Pt. 3, Crea v. Crea, 222 W.Va. 388, 664 S.E.2d 729 (2008).

7. "A motion for reconsideration filed within ten days of judgment being entered suspends the finality of the judgment and makes the judgment unripe for appeal. When the time for appeal is so extended, its full length begins to run from the date of entry of the order disposing of the motion." Syl. Pt. 7, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

Timothy M. Koontz, Charleston, for the Appellant.

Rebecca E. Mick, Crandall, Pyles, Haviland, Turner & Smith, LLP, Logan, for the Appellee.

PER CURIAM:¹

This is an appeal by Bonnie Sue Burton (hereinafter "Appellant") from an order of the Circuit Court of Logan County dismissing her Petition for Appeal from a final order of the Family Court. The Appellant contends that the Circuit Court erred in dismissing the Petition for Appeal and argues that her Motion for Reconsideration tolled the running of the statutory time limit for appealing from Family Court to Circuit Court. Upon thorough review of the briefs, record, arguments of counsel, and applicable precedent, this Court reverses the Circuit Court of Logan County and remands this matter for full consideration of the Appellant's appeal of the Family Court ruling to the Circuit Court of Logan County.

I. Factual and Procedural History

On August 27, 2004, Logan County Family Court Judge Kelly Gilmore Codispoti entered a Final Order of Divorce between the Appellant and Ralph Burton (hereinafter "Appellee"). The Family Court order held that certain stock held by the Appellee constituted his separate property; found that the grounds for divorce of extreme mental and physical cruelty had not been proven; and ordered alimony of $350.00 monthly to be paid by the Appellee for a period of five years. The Appellant presented an oral Motion for Reconsideration, pursuant to West Virginia Code § 51-2A-10 (2001) (Supp. 2008),² to the Family Court the same day the divorce order was entered. The Family Court immediately granted the Appellant's Motion for Reconsideration and subsequently conducted a hearing on such motion on November 30, 2004. On February 23, 2005, the Family Court entered an order denying the Motion for Reconsideration.³

On March 25, 2005, the Appellant filed a Petition for Appeal in the Circuit Court of Logan County, pursuant to West Virginia Code § 51-2A-11 (2001) (Supp.2008), challenging certain Family Court rulings. On November 14, 2005, the Appellee filed a Motion to Dismiss the Appellant's Petition for Appeal, contending that the Appellant had failed to file the Petition for Appeal within the thirty-day time limitation set forth in West Virginia Code § 51-2A-11. On February 23, 2007, the Circuit Court dismissed the Appellant's Petition for Appeal, ruling that a Motion for Reconsideration does not toll the running of the thirty-day time limit for appeal and that the Petition for Appeal was therefore due to the Circuit Court by September 26, 2004. Since it was not filed until March 25, 2005, seven months following entry of the final divorce order and Motion for Reconsideration, the Circuit Court ruled that it was filed in an untimely fashion and would be dismissed. The Appellant appeals that determination to this Court, contending that her Motion for Reconsideration tolled the running of the thirty-day statutory appeal period.

II. Standard of Review

The standard of review applicable to findings of a circuit court has been explained as follows in syllabus point two of Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997):

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

See also Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995).

On the specific issue of the circuit court's application of the time limitations for appeal, this Court applies a de novo standard of review, in accord with syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), providing as follows: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.").

With these standards of review as guidance, we consider the substance of the Appellant's argument.

III. Discussion

Rule 28(a) of the Rules of Practice and Procedure for Family Court currently provides as follows:

Time for petition.—A party aggrieved by a final order of a family court may file a petition for appeal to the circuit court no later than thirty days after the family court final order was entered in the circuit clerk's office. If a motion for reconsideration has been filed within the time period to file an appeal, the time period for filing an appeal is suspended during the pendency of the motion for reconsideration.

During the litigation of this case in 2004, however, the final sentence was not included within the rule. Thus, the effect of a Motion for Reconsideration upon the statutory time limitation for the filing of an appeal from Family Court to Circuit Court was not clearly articulated until the implementation of the current version of Rule 28(a), and the guidance available during the 2004 litigation of this matter was limited.⁴

Although no specific guidance was provided by the Rules of Practice and Procedure for Family Court during litigation of this matter, the effect of a Motion for Reconsideration had been extensively evaluated within the framework of general civil litigation. In that context, the issue of tolling of an appeal period by the filing of a Motion for Reconsideration had been addressed in terms of the distinction between Rule 59(e) and Rule 60(b)⁵ of the West Virginia Rules of Civil Procedure. In Law v. Monongahela Power Co., 210 W.Va. 549, 558 S.E.2d 349 (2001), this Court recognized that a determination regarding the tolling effect is "dependent upon resolution of the issue of whether the ... `Motion to Reconsider and/or Clarify' is deemed a Rule 60(b) motion or a Rule 59(e) motion." 210 W.Va. at 554, 558 S.E.2d at 354 (footnote omitted). This Court had explained in Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), that "a motion made pursuant to Rule 60 does not toll the running of the appeal time...." 157 W.Va. at 783, 204 S.E.2d at 88. However, the filing of a Rule 59(e) motion does "suspend the running of the time for appeal, and that time does not begin to run until the entry of an order deciding the issues raised by the motion." Riffe v. Armstrong, 197 W.Va. 626, 636, 477 S.E.2d 535, 545 (1996).

The pivotal issue of the timing of the filing of the Motion for Reconsideration was succinctly explained in syllabus point two of Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996), as follows:

When a party filing a motion for reconsideration does not indicate under which West Virginia...