Mark G. v. Lacy G.

• Decision Date: 09 September 2019
• Docket Number: No. 18-0598,18-0598
• Parties: Mark G., Petitioner Below, Petitioner v. Lacy G. Respondent Below, Respondent
• Court: West Virginia Supreme Court

Mark G., Petitioner Below, Petitioner v. Lacy G. Respondent Below, Respondent

No. 18-0598

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

September 9, 2019

(Raleigh County 18-C-261)

MEMORANDUM DECISION

Petitioner Mark G., by counsel William D. Stover, appeals the June 1, 2018, order of the Circuit Court of Raleigh County denying his petition for a writ of mandamus and/or prohibition.¹ Respondent Lacy G., by counsel Christopher T. Pritt, filed a response in support of the circuit court's order. Petitioner filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties were married on May 17, 2008, and one child was born during their marriage. On July 7, 2017, petitioner filed a petition to divorce respondent in the Family Court of Raleigh County. A hearing on the divorce petition was held on September 27, 2017. On October 17, 2017, a temporary order was entered by the family court. In this order, the court noted that each party admitted to irreconcilable differences; that each party claimed mental cruelty as a ground for divorce; and that respondent alleged adultery as an additional ground for divorce. The temporary order required petitioner to pay respondent $2,500 per month in child support and $6,000 per month in spousal support. The order also contained a notation that "the parties shall be permitted to engage in discovery pursuant to West Virginia Rules of Civil Procedure [("WVRCP")], Rules 26 through 37."

From April 28, 2018, through May 6, 2018, petitioner vacationed in Ireland. On May 2, 2018, respondent issued a subpoena duces tecum to petitioner seeking production and inspection of "[a]ll receipts and records of payment for the [p]etitioner's 2018 trip to Ireland, including but not limited to plane ticket costs, hotel costs, and all other payments associated with said trip." In response to the subpoena, petitioner filed a motion to quash. He argued that the subpoena sought to "determine how [p]etitioner spent his earnings or incurred personal debt after separation" and was a request for petitioner's "separate property." Citing this Court's ruling in Keplinger v. Virginia Electric and Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000), petitioner argued that respondent's subpoena requested information that was not relevant to the pending action and was not likely to lead to the discovery of admissible evidence. See id. (Subpoenas issued under Rule 45 are subject to scope of discovery set forth in Rule 26(b)(1)). Further, petitioner argued that the subpoena represented a violation of his right to privacy and stated that "when, how, with whom and at what costs" he vacationed were "matters that should be ruled as private to him."

In response to petitioner's motion to quash, respondent argued that her subpoena was proper in that the requested information was relevant for purposes of her contested claims for spousal support and attorney's fees. Respondent contended that petitioner's "taking a luxurious vacation to Ireland is relevant" to petitioner's ability to pay spousal support, and is a sign of his high "income-earning ability."² Further, respondent argued that petitioner's trip was indicative of "the kind of life the parties were used to living prior to their separation."

By order entered May 10, 2018, the family court denied petitioner's motion to quash. The May 10, 2018, order set forth no findings of fact or conclusions of law and simply stated that the motion was denied "pursuant to the reasons set forth in the respondent's response to petitioner's motion to quash subpoena." Thereafter, on May 24, 2018, petitioner filed, in circuit court, a "petition for writ of prohibition/mandamus" seeking prohibition of the enforcement of the family court's order denying his motion to quash respondent's subpoena.³ In his petition, petitioner claimed that the documents and information respondent sought by the subpoena "were not permissible pursuant to [the] standard for discovery" in that such requests invaded petitioner's privacy and sought inadmissible evidence. Further, petitioner alleged that the family court violated his right to procedural due process in denying the motion to quash without notice to petitioner, without the benefit of a hearing, and by entering an order not containing specific findings of fact and conclusions of law.

The circuit court, on June 1, 2018, entered its order refusing "petitioner's [w]rit of [m]andamus."⁴ Specifically, the circuit court found that petitioner did not satisfy the requirements articulated by this Court in State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). The court reasoned that "it [was] within the province of the [f]amily [c]ourt to determine questions of relevance for discovery purposes" and concluded that there was "nothing in the petition that supports the argument that the [f]amily [c]ourt exceeded its legitimate powers in refusing to quash the subpoena." It is from the circuit court's June 1, 2018, order that petitioner now appeals.

We will address each of petitioner's four assignments of error, in turn. In his initial assignment of error, petitioner argues that the circuit court erred in finding no error in the family court's denial of his motion to quash subpoena. When considering a circuit court's ruling on a motion to quash subpoena, we have held that "[g]enerally, the trial court's determination to quash a subpoena is addressed to the sound discretion of the trial court and is subject to review for abuse of discretion." Blankenship v. Mingo Cty. Econ. Opportunity Comm'm, 187 W. Va. 157, 162, 416 S.E.2d 471, 476 (1992). Further, as referenced in Hoover, "[t]he court has broad discretion in determining whether a subpoena is unreasonable, and a decision of the circuit court will be reversed only if it is clearly unreasonable, arbitrary or fanciful." 199 W. Va. at 17, 483 S.E.2d at 17.

With regard to the propriety of the denial of his motion to quash, petitioner's argument is two-fold. First, petitioner argues that the family court's temporary order, entered in October of 2017, only authorized that discovery could be "undertaken by the parties pursuant to WVRCP Rules 26 through 37" and not Rule 45. Hence, as discovery under Rule 45 was not explicitly authorized by the temporary order, respondent's attempt to subpoena records from petitioner under Rule 45 was a violation of the temporary order.

Petitioner's argument fails because he repeatedly refers to respondent's Rule 45 subpoena as a discovery device subject to the relevancy definition found in Rule 26(b)(1) or discusses it in terms of the "scope of discovery." Thus, like the circuit court, and on the unique facts and circumstances of this case, we accept the petitioner's argument that "the subpoena functions as a discovery device" and, therefore, reject his argument that the subpoena violated the family court's temporary order instructing the parties to undertake discovery pursuant to Rules of Civil Procedure 26 through 37.

Second, petitioner argues that, pursuant to Rule 45(d)(2)(B), it was "incumbent upon the subpoena issuing party to file a motion to compel after confronted with a motion to quash[,]" which would have necessitated a hearing or briefing and a "record being made of justification or need for subpoenaed documents." He contends that the family court's disregard for the procedures required by Rule 45 exceeded its authority and violated petitioner's right to due process.

Conversely, respondent argues that there was no error in either the family court's denial of petitioner's motion to quash or the circuit court's denial of petitioner's requests for prohibition/mandamus relief. We agree with respondent. Here, the family court properly exercised its discretion in the denial of petitioner's motion to quash and did not exceed its authority. While petitioner argues that Rule 45(d)(2)(B) required the party issuing the subpoena to file a motion to compel upon receipt of a motion to quash, the language of Rule 45(d)(2)(B) states, in relevant part, that "[i]f objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production." We have long held that "[t]he . . . use of the word 'may' usually renders the referenced act discretionary, rather than mandatory, in nature." Syl. Pt. 1, in part, Pioneer Pipe, Inc. v. Swain, 237 W. Va. 722, 791 S.E.2d 168 (2016). Here, given the inclusion of the word "may" within Rule 45(d)(2)(B), we find that the family court did not abuse its discretion in refusing to require respondent to file a motion to compel in response to petitioner's motion to quash. Accordingly, we find no error.

In his second assignment of error, petitioner argues that the circuit court erred in refusing to grant relief in prohibition based upon factors for consideration established by case law. We have generally held that, in reviewing a petition for a writ of prohibition arguing that the lower tribunal exceeded its legitimate powers, this Court will examine five factors:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether

...