Roberson v. Roberson, 14-1341

• Decision Date: 17 November 2015
• Docket Number: No. 14-1341,14-1341
• Court: Supreme Court of West Virginia
• Parties: DAVID WALTER ROBERSON, Respondent below, Petitioner v. TINA RENEE ROBERSON, Petitioner below, Respondent

DAVID WALTER ROBERSON, Respondent below, Petitioner v. TINA RENEE ROBERSON, Petitioner below, Respondent

No. 14-1341

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 17, 2015

(Mineral County 13-D-120)

MEMORANDUM DECISION

The petitioner, David Walter Roberson, by counsel Agnieszka Collins, appeals the December 8, 2014, order of the Circuit Court of Mineral County, affirming a September 24, 2014, contempt ruling issued against him by the Family Court of Mineral County ("Family Court"). The respondent Tina Renee Roberson, by counsel Kelley A. Kuhn, has filed a response in support of the circuit court's order. The petitioner ex-husband argues that the Family Court modified the final divorce decree through the contempt ruling and improperly required him to pay his ex-wife's attorney's fees ($500.00) in connection with the contempt proceeding.

Upon consideration of the parties' briefs, oral argument, and the submitted record, we determine that this case fails to present a new or significant question of law. This Court further concludes that the circuit court committed no error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

At issue in this appeal is whether the Family Court's ruling in response to the respondent's petition for contempt constitutes an improper modification of the final divorce decree. In support of his position that it is a modification, the petitioner states that by the terms of the divorce decree he was required to pay $242.00 per month towards the marital debt until the former marital home was sold.¹ Under the contempt ruling, the petitioner'smarital debt obligation is specified as a sum certain ($21,000.00) "owed at the time of the parties' divorce" and he is directed to pay $250.00 per month until such debt is fully satisfied. The petitioner cites further to the Family Court's decision to permit the respondent to move into the former marital residence when he had been given use and possession of the house under the terms of the final divorce decree. Finally, the petitioner complains that the Family Court improperly imposed a new obligation through the contempt ruling concerning the respondent's motor vehicle.

As related in the petition for contempt, following the entry of the parties' divorce decree on March 28, 2014, the petitioner immediately failed to meet many of the obligations imposed upon him by the final order of divorce. He was obligated to pay child support in the amount of $426.00 for March 2014 and $639.00 for April 2014. Because he paid neither of the first two months of child support totaling $1,065.00, the respondent held onto the petitioner's fifty-percent share of their tax refund-$918.54. After applying the tax refund to the unpaid child support, the arrearage was $146.46 at the time of the petition's filing.² Additional financial obligations that the petitioner failed to meet included the mortgage payment of $1,269.06³ and the monthly payment of $242.00 to pay off his portion of the parties' marital debt.⁴ The respondent further alleged that the petitioner breached his agreement to obtain medical insurance for the minor children;⁵ refused to allow her to take possession of the car she was awarded⁶ as well as her personal property inside the home; failed to exchange the children for scheduled visitations in a timely fashion; and failed to pay her for marital property sold pursuant to the divorce decree.

During the course of the hearing held in this matter on September 11, 2014, the Family Court was apprised of the fact that the marital home would be foreclosed upon unless the outstanding mortgage debt ($2,866.24) was paid by October 4, 2014. Also disclosed was the parties' concession that there was no equity in the home and that since 2009, there had been no potential buyers for the home. When the respondent indicated during the course of the hearing that she was prepared to rectify the mortgage arrearage, the petitioner then asked for the opportunity to refinance the home and pay off the mortgage debt. In the interest of preventing foreclosure and the consequent creation of additional marital debt, the Family Court decided to give the petitioner until September 25, 2014, to either refinance the home solely in his name and remove the respondent's name from the loan documents or pay in full the mortgage debt. Absent either of those events, the petitioner was ordered to vacate the home by September 30, 2014, at 5:00 p.m. The Family Court further directed that, if the petitioner was required to vacate the marital home pursuant to the above-stated conditions, the respondent could move into the home effective October 1, 2014, bring the mortgage payments current with the opportunity to refinance the home in her name and to remove the petitioner's name from the existing loan documents.

In challenging some of the relief awarded through the contempt ruling issued by the Family Court and affirmed by the circuit court,⁷ the petitioner asserts that the relief amounted to a modification of the divorce decree in violation of this Court's holding in Segal v. Beard, 181 W.Va. 92, 380 S.E.2d 444 (1989).⁸ That case, decided under superseded statutes,⁹ held that family law masters and circuit court judges could only modifyprior rulings when the issue sought to be modified involved child custody, child visitation, child support, or spousal support.¹⁰ Our current and controlling domestic relations statutes not only give family court judges concurrent jurisdiction with circuit court judges over matters of divorce¹¹ but they expressly anticipate and provide for the revision of a final order concerning the distribution of marital property by either a family court judge or a circuit court judge. See W.Va. Code § 48-5-706 (2014).

Of more import to this case than the statutory changes that permit the alteration of final orders with regard to the distribution of marital property, however, is the statute that expressly provides for and grants the powers of contempt to family court judges. Under West Virginia Code § 51-2A-9 (2008 & Supp. 2015), the Legislature has granted family court judges the right to "[s]anction persons through civil contempt proceedings when necessary to preserve and enforce the rights of private parties or to administer remedies granted by the court." W.Va. Code § 51-2A-9 (a)(1). Critically, that power to sanction entails the following: "A family court judge may enforce compliance with his or her lawful orders with remedial or coercive sanctions designed to compensate a complainant for losses sustained and to coerce obedience for the benefit of the complainant." W.Va. Code § 51-2A-9(b). In granting these powers of contempt, the Legislature has further provided that "[s]anctions may include, but are not limited to, seizure or impoundment of property to secure compliance with a prior order." Id. The statute both contemplates and provides for an award of attorney's fees as part of the scope of relief permitted in conjunction with a finding of contempt. Id.

After first finding that the petitioner had failed to meet his obligations under the divorce decree with regard to making the mortgage payments, the Family Court gave the petitioner a two-week period in which to purge himself of the prospective sanction with regard to the marital home. As related above, the petitioner was provided the opportunity to remedy the mortgage arrearage and to continue living in the former marital home. Only if he failed to meet the strictures of the Family Court's directive would the petitioner have to vacate the residence and permit the respondent to take possession. In crafting an alternative approach to the potential foreclosure of the marital home, the Family Court was acting within its discretionary grant of contempt powers. Unlike the improper decision toforce the sale of the former marital home in the instance of two late mortgage payments by the former wife in Carpenter v. Carpenter, 227 W.Va. 214, 707 S.E.2d 41 (2011), the Family Court in this case first sought to coerce compliance with the final order of divorce that required the petitioner to make the mortgage payments and then, only upon a failure to meet that obligation, to permit the respondent to move in, remedy the existing mortgage debt, and take over the mortgage payments. In so doing, the Family Court was responding to the exigent circumstances of a potential foreclosure and the correspondent creation of additional marital debt. As the respondent observes, the Family Court did not direct any modification with regard to the ownership of the home; it merely permitted a change of occupancy based on the respondent's stated ability to bring the mortgage debt current.

With regard to the Family Court's decision to quantify the petitioner's half of the marital debt existing and "owed at the time of the parties' divorce" as part of the contempt ruling and raise the monthly payment for rounding purposes to $250.00 a month, we do not find this de minimis $8.00 a month increase to be an abuse of discretion. The Family Court had authority under either West Virginia Code § 48-5-706 or West Virginia Code § 51-2A-9 to impose such a payment adjustment. Critically, the Family Court did not increase the preexisting marital debt. Moreover, the petitioner agreed to this minimal increase in his monthly payment obligation with regards to the previously-established marital debt during the hearing. Similarly, the petitioner agreed to allow the respondent to take possession of the vehicle she was previously awarded through the divorce decree; there was no new obligation imposed by the Family Court concerning the previously-awarded but undelivered vehicle.

Upon our careful and thorough review of this case, we do not find any abuse of discretion with regard to either the finding of contempt levied against the petitioner or the Family Court's ruling...