Delapp v. Delapp, w Kisner

• Decision Date: 19 June 2003
• Docket Number: Now Kisner,No. 31043.,w Kisner,31043.
• Citation: 584 S.E.2d 899,213 W.Va. 757
• Court: West Virginia Supreme Court
• Parties: In re the Marriage of Kerry D. DELAPP , Petitioner Below, Appellee, v. David John DELAPP, Respondent Below, Appellant.

584 S.E.2d 899

213 W.Va. 757

In re the Marriage of Kerry D. DELAPP (Now Kisner), Petitioner Below, Appellee, v. David John DELAPP, Respondent Below, Appellant.

No. 31043.

Supreme Court of Appeals of West Virginia.

Submitted May 20, 2003.

Decided June 19, 2003.

Belinda A. Haynie, Esq., Morgantown, for Kerry Diane Delapp.

William C. Brewer, Esq., Bader C. Giggenbach, Esq., Brewer & Giggenbach, PLLC, Morgantown, for John David Delapp.

PER CURIAM.

John David Delapp, the appellant herein and respondent in the divorce action below, appeals the order of the Circuit Court of Monongalia County that denied the appellant's Rule 60(b) motion to set aside the circuit court's bifurcated order on property distribution, child support, alimony, and expert and attorney fees.¹ In this appeal, the appellant asserts that the circuit court erred in finding that it lacked authority to grant relief from its March 7, 2001, final order because the appellant failed to timely file his petition for review of the family law master's recommended order. For the reasons set forth below, we agree with the appellant. Therefore, we reverse and remand for the circuit court to consider on the merits the appellant's petition for review.

I. FACTS

Kerry Diane Delapp, the appellee, filed for divorce from Dr. John David Delapp, the appellant. On January 30, 2001, the family law master,² after several hearings, entered a final recommended order on the issues of property distribution, child support, alimony, and expert and attorney fees. The family law master's Notice of Recommended Order, provided to the parties on January 31, 2001, indicated that a petition for review must be filed no later than February 20, 2001.

On that date, the appellant's counsel, Mr. William Brewer, filed a request for a ten-day extension in which to file the petition, which was granted. At about 9:30 a.m. on March 7, 2001, an employee of Mr. Brewer attempted to file the appellant's petition for review in the circuit clerk's office, and was informed that the final order had already been signed and entered by the circuit court.

On March 9, 2001, the appellant filed a motion, pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, to set aside the final order of the circuit court due to inadvertence or excusable neglect in the untimely filing of the petition for review. A memorandum of law in support of the Rule 60(b) motion was filed on March 27, 2001. The motion was denied by the circuit court by order dated December 28, 2001. Thereafter, on January 11, 2002, the appellant filed a motion for reconsideration. A full evidentiary hearing was held on this motion on February 8, 2002.

At this hearing, the appellant's counsel, Mr. Brewer, testified that he and his law partner, Bader C. Giggenbach, had calculated the filing deadline for the petition for review to be March 6, 2001.³ However, due to previous confusion in the circuit clerk's office regarding calculation of a proper filing date in an earlier case, Mr. Brewer instructed his office manager to confirm the filing deadline with the circuit clerk's office. Mr. Brewer's office manager testified that she and a deputy clerk had several conversations, and she understood the deputy clerk to indicate that March 7, was the correct filing deadline, and that the deputy clerk had confirmed this date with the circuit judge. The deputy clerk testified, however, that she did not recall saying that March 7, was the filing deadline but rather that the recommended order would "go up to the judge on the 7th." She admitted, however, that such language "could be confused" by Mr. Brewer's office manager. Finally, the deputy clerk testified that she confirmed the March 7, date with the circuit judge's clerk, not the circuit judge.

By order of March 1, 2002, the circuit court denied the appellant's motion for reconsideration. First, the circuit court found that it is undisputed that the ten-day extension gave the appellant until March 6, 2001, to file a petition for review of the final order. Also, the court found "that the neglect of the [appellant's] counsel in filing the petition in a timely [sic] manner was excusable neglect.... due to the fact that, based on the evidence presented at the hearing, the mistake on part of counsel was clearly an honest, good faith mistake of fact."⁴ The court concluded, however, that, pursuant to this Court's holding in Czaja v. Czaja, 208 W.Va. 62, 537 S.E.2d 908 (2000), it had "absolutely no discretion to accept, and review on the merits, a petition for review when the party attempting to submit the petition fails to do so within the temporal confines of [W.Va. Code] § 48A-4-17 (1999)." The appellant now appeals the March 1, 2002, order.

II. STANDARD OF REVIEW

There are two issues before this Court. The first is whether the circuit court erred in finding that it lacked authority to grant relief to the appellant, pursuant to Rule of Civil Procedure 60(b), where the appellant failed to timely file his petition for review of the family law master's recommended order. We review the circuit court's finding on this issue de novo. See Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law ... we apply a de novo standard of review."). The second issue is whether the circuit court properly found that the appellant's untimely filing of the petition for review was due to excusable neglect under Rule 60(b). On this issue, we are guided by our rule that "[a] motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). Finally, we are mindful that,

A court, in the exercise of discretion given it by the remedial provisions of Rule 60(b), W.Va.R.C.P., should recognize that the rule is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.

Syllabus Point 6, Toler v. Shelton, supra.

III. DISCUSSION

A. The Applicable Law

In his sole assignment of error, the appellant argues that the circuit court erred in determining that our holding in Czaja, supra, precluded it from providing relief to the appellant under West Virginia Rule of Civil Procedure 60(b)(1). We agree with the appellant.

According to Syllabus Point 1 of Czaja:

The provisions of West Virginia Code § 48A-4-17 (1999)⁵ are clear in their intent. Failure to comply with the ten-day period for filing exceptions to a recommended order of a family law master, barring a timely filing of and approval of one ten-day extension period, is fatal with regard to preserving those exceptions for appeal.

This Court has indicated, however, that "the statement contained in a syllabus is to be read in the light of the opinion." Jones v. Jones, 133 W.Va. 306, 310, 58 S.E.2d 857, 859 (1949), citing Koblegard, Trustee v. Hale, 60 W.Va. 37, 41, 53 S.E. 793, [794] (1906). See also State v. Franklin, 139 W.Va. 43, 79 S.E.2d 692 (1953),

Cupano v. W.Va. Ins. Guaranty Assoc., 207 W.Va. 703, 536 S.E.2d 127 (2000). The facts of Czaja differ considerably from the facts of the instant case. We conclude, therefore, that Syllabus Point 1 of Czaja is not applicable to the instant facts.

In Czaja, the family law master entered a recommended order on November 23, 1998, concerning the appellee's visitation rights. The due date for the filing of exceptions to the recommended order was December 7, 1998, at which time the appellant filed notice of her request for a ten-day extension. The circuit court granted the extension which meant that the appellant now had until December 17, 1998, to file exceptions. However, the appellant did not file her exceptions until December 28, 1998. She contended that the filing was not untimely because the guardian ad litem initially was not served with the notice and recommended order and, as a result, the parties were re-served along with the guardian ad litem on December 3, 1998, with an indication that December 17, 1998, was the deadline for filing exceptions. According to the appellant, her extension allowed her ten days from December 17, to file, which made the correct deadline December 27.

In rejecting the appellant's reasoning, we noted that both named parties were served with the notice and the recommended order on November 23, 1998, and that the filing date for exceptions pursuant to the first notice was December 7, 1998. After reviewing all of the facts of the case, this Court was "left with a palpable sense that Appellant's counsel was trying to `buy' time in any fashion possible for filing Appellant's exceptions." Czaja, 208 W.Va. at 69, 537 S.E.2d at 915 (footnote omitted). In contrast, in the instant case, the circuit court found that the appellant's failure to timely file his petition for review was due to a good faith mistake which amounted to excusable neglect. Accordingly, we conclude that the rule set forth in Syllabus Point 1 of Czaja does not prevent the circuit court from granting relief to the appellant from the March 7, 2001, order pursuant to Rule 60(b).

Applicable, rather, to the present case is this Court's decision in State ex rel. Bess v. Berger, 203 W.Va. 662, 510 S.E.2d 496 (1998) (per curiam).⁶ In Bess, the petitioner's counsel failed to submit proposed findings of fact within the thirty-day period set by the family law master. Also, the petitioner asserted her exceptions to the family law master's ruling two weeks after the ten-day exception filing period had expired. The circuit court refused to consider the exceptions and subsequently also refused to consider the petitioner's Rule 60(b) motion for relief from the...