Paugh v. Linger

• Decision Date: 18 November 2011
• Docket Number: No. 101410.,101410.
• Citation: 228 W.Va. 194,718 S.E.2d 793
• Parties: Barbie Dawn PAUGH (formerly Linger), Petitioner v. Edward L. LINGER, Respondent.
• Court: West Virginia Supreme Court

228 W.Va. 194

718 S.E.2d 793

Barbie Dawn PAUGH (formerly Linger), Petitioner

v.Edward L. LINGER, Respondent.

No. 101410.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 2011.Decided Nov. 18, 2011.

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. “In divorce actions, an award of attorney's fees rests initially within the sound discretion of the family law master and should not be disturbed on appeal absent an abuse of discretion. In determining whether to award attorney's fees, the family law master should consider a wide array of factors including the party's ability to pay his or her own fee, the beneficial results obtained by the attorney, the parties' respective financial conditions, the effect of the attorney's fees on each party's standard of living, the degree of fault of either party making the divorce action necessary, and the reasonableness of the attorney's fee request.” Syl. Pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).

James Wilson Douglas, Esq., James Wilson Douglas, L.C., Sutton, WV, for Petitioner.

Delby B. Pool, Esq., Amy L. Lanham, Esq., Delby B. Pool & Associates, Clarksburg, WV, for Respondent.

PER CURIAM:

The petitioner herein and respondent below, Barbie Dawn Paugh (formerly Linger), appeals from two orders entered on October 12, 2010, by the Circuit Court of Lewis County, West Virginia, affirming two orders of the Family Court of Lewis County. Specifically, Ms. Paugh contends that the family and circuit courts erred by finding that she violated the terms of a parenting plan and by awarding attorney's fees to the respondent herein and petitioner below, Edward Lee Linger. For the reasons that follow, the Court affirms the circuit court's finding that Ms. Paugh violated the parenting plan, but reverses the award of attorney's fees.

I. FACTS AND PROCEDURAL HISTORY

Ms. Paugh and Mr. Linger were married on January 1, 1997, and have two children; Kenton, born May 4, 2001 (now age ten), and Kami, born April 22, 2005 (now age six). The parties separated on April 21, 2008, and a final divorce decree was entered by the Family Court of Lewis County, West Virginia, on December 18, 2009. Incorporated into that divorce decree is an Agreed Permanent Parenting Plan, signed by the parties on December 15, 2009, and ratified by the family court on December 18, 2009. Under that plan, Ms. Paugh is designated as the primary residential parent, with the children having visitation with Mr. Linger on Wednesday evenings and every other weekend, as well as several weeks in the summer.

With regard to decision making for the children, the parenting plan provides that “[d]ay to day decisions will be made by the parent who has the care of the children.” Importantly, however, “[ m ] ajor life decisions regarding the children, will be made by the Mother and Father shared, 50/50.” ¹ The parenting plan additionally provides, under the title “Dispute Resolution,”

1. In matters of dispute, both Parties shall immediately discuss the problem between themselves and attempt to resolve

the dispute in a reasonable time and manner, within 30 days of the dispute.

2. If this fails, the Parties shall attempt to resolve the problem by eliciting assistance from a counselor or mediator who will be agreed to by both parties.

3. The cost of this process, when indicated shall be paid by the Parties proportion [sic] to the percentages established by the Revised Income Shares Formula.

The plan establishes guidelines for enforcement, tracking the language of West Virginia Code § 48–9–501(a) (2009).² The plan provides that

[i]f, upon a parental complaint, the court finds a parent intentionally and without good cause violated a provision of the court-ordered parenting plan, it shall enforce the remedy specified in the plan or, if no remedies are specified or they are clearly inadequate, it shall find the plan has been violated and order an appropriate remedy, ...The plan sets forth several appropriate remedies, including that a court may “require the violating parent to pay a civil penalty, in the amount of not more than $100.00 for the first offense ... to be paid to the parent education fund as established under [W. Va.Code § 48–9–104].” In addition, “the Court may require a violating parent to pay a nonviolating parent's Court costs, reasonable attorney's fees, and any other reasonable expenses in enforcing the plan[.]”

This case concerns a dispute between the parties regarding the children's schooling. The parties' older child, Kenton, was enrolled at Peterson Central Elementary School (“Peterson”), located in Weston, West Virginia, from kindergarten through third grade. On February 1, 2010, Ms. Paugh placed both Kenton and Kami, who would be entering kindergarten that fall, on a waiting list to be enrolled at St. Patrick Catholic School (“St. Patrick”), also in Weston. Mr. Linger was not informed of or consulted about this act; instead, he learned of the intended school change from the children and the school counselor at Peterson.

On February 10, 2010, Mr. Linger sent Ms. Paugh a letter indicating that he had learned of her plan to change the children's school and expressing his disapproval. In that letter, he challenged her decision to discuss the school change with the children before discussing the issue with him. He further stated that sending the children to a private, Catholic school was a “huge decision” with which he disagreed. In an emailed response that same evening, Ms. Paugh indicated that she had planned to discuss the issue with Mr. Linger but had wanted to find out if the children would want to change schools first. She then set forth an extensive list of reasons why she felt that St. Patrick would be a better choice for the children, including the quality of the education, reducing Kenton's school-related anxiety, and her own recent employment at St. Patrick as a substitute teacher. A series of letters between the parties followed in which each firmly stated their position; Ms. Paugh strongly favored enrollment at St. Patrick and Mr. Linger strongly opposed such enrollment.

On April 20, 2010, following further discussion with Mr. Linger, Ms. Paugh enrolled Kami in kindergarten at Peterson for the following fall. On August 10, 2010, Ms. Paugh learned that St. Patrick had two openings for the fall term; she informed Mr. Linger of the openings, but he again refused to send the children to that school. Nevertheless, on August 19, 2010, Ms. Paugh unilaterally withdrew both Kami and Kenton from Peterson and enrolled them at St. Patrick. She did this without Mr. Linger's consent or knowledge.³ On the same date, without realizing that Ms. Paugh had just enrolled the children at St. Patrick, Mr. Linger contacted Ms. Paugh via telephone and left a message proposing that the parties engage the assistance of a mediator to resolve the ongoing dispute, as provided for in the parenting plan. The children began attending St. Patrick on August 23, 2010. Upon learning of the change in schools, Mr. Linger filed a Petition for Expedited Relief in the family court, seeking an order requiring that the children be re-enrolled in the public schools of Lewis County.

After conducting a hearing, the family court entered an order on September 7, 2010, finding that Ms. Paugh had violated the parenting plan. The family court determined that the parenting plan requires the parties to share decision making responsibility for “major life decisions.” Relying on West Virginia Code § 48–1–220 (2009), which provides that “significant life decisions” include decisions on education and spiritual guidance, the family court further found that Ms. Paugh's decision to enroll the children at St. Patrick constituted a “major life decision.” Thus, because Ms. Paugh had acted without Mr. Linger's knowledge or consent in enrolling the children at St. Patrick and without initiating mediation to resolve the dispute, the family court found that Ms. Paugh violated the agreement contained in the parenting plan to share decision making “50/50” with Mr. Linger.

As a remedy, the family court ordered that the children be immediately re-enrolled at Peterson and that Ms. Paugh pay the $100.00 civil penalty set forth in West Virginia Code § 48–9–501(a) and the parenting plan, as well as attorney's fees to Mr. Linger. It left the amount of attorney's fees to be determined. The family court's order further provided that after Mr. Linger submitted his statement for attorney's fees, Ms. Paugh could request a hearing on the matter. Mr. Linger presented a statement for fees in the amount of $3,585.71, and Ms. Paugh did not request a hearing. On September 21, 2010, the family court entered a second order awarding attorney's fees to Mr. Linger in the amount of $1,750.00 plus interest. That order included no findings explaining the basis for the amount of the attorney's fees award.

Ms. Paugh instituted an appeal to the Circuit Court of Lewis County, which affirmed both of the family court's orders in separate orders entered on October 12, 2010. She now appeals both circuit court orders to this Court.

II. STANDARD OF REVIEW

Our standard of review for this matter is well settled:

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, ...