State ex rel. Shepard v. Holland, 32903.

• Decision Date: 29 June 2006
• Docket Number: No. 32903.,32903.
• Citation: 633 S.E.2d 255
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Robert O. SHEPARD, Petitioner, v. Robert HOLLAND, Jr., Circuit Judge for Ritchie County, West Virginia, and Steven A. Jones, Prosecuting Attorney for Ritchie County, West Virginia, Respondents.

633 S.E.2d 255

STATE of West Virginia ex rel. Robert O. SHEPARD, Petitioner, v. Robert HOLLAND, Jr., Circuit Judge for Ritchie County, West Virginia, and Steven A. Jones, Prosecuting Attorney for Ritchie County, West Virginia, Respondents.

No. 32903.

Supreme Court of Appeals of West Virginia.

Submitted: June 6, 2006.

Decided: June 29, 2006.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed 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 the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

3. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

4. "The duty of a parent to support a child is a basic duty owed by the parent to the child, and a parent cannot waive or contract away the child's right to support." Syl. Pt. 3, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991).

5. "Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

6. "An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W. Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy." Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

John M. Butler, St. Marys, for the Petitioner.

Steven A. Jones, Prosecuting Attorney, Harrisville, for the Respondents.

PER CURIAM.

Robert O. Shepard (hereinafter "Petitioner") seeks a writ of prohibition to prevent the Circuit Court of Ritchie County from proceeding against him in a criminal prosecution. The Petitioner has been indicted for felony non-support and presently contends that he maintained custody of one of his children during the accrual of the relevant arrearage and was owed credits which would reduce the alleged arrearage, making prosecution for the alleged non-support inappropriate. Upon thorough review of the briefs, arguments of counsel, record, and applicable precedent, we deny the requested writ of prohibition.

I. Factual and Procedural History

The Petitioner and Pamela Hayhurst were divorced in 1990. Two children, Hailey and Hannah, were born of the marriage, and the original child support order established child support at $250.00 per month. Subsequent to a 1998 conflict between Hailey and her mother, Hailey began living with the Petitioner. Pursuant to an order dated March 11, 1999, the lower court stated that no child support payments would be required of either parent, reasoning that each parent had custody of one child. When Hailey returned to her mother's custody, an agreed order entered March 27, 2000, obligated the Petitioner to pay $200.00 per month in child support, to be reduced to $150.00 per month when the oldest child turned eighteen.

The Petitioner was indicted in January 2004 for the felony offense of failure to provide support of a minor. See W. Va.Code § 61-5-29(2) (1999) (Repl.Vol.2005).¹ That criminal prosecution is the basis for the present requested writ of prohibition in which the Petitioner asserts that the indictment in the criminal prosecution is defective, based upon its alleged vagueness. The Petitioner further contends that the criminal prosecution should not proceed while a civil appeal is pending regarding the amount of arrearage properly owed. In that related collateral proceeding, designated as civil action number 89-C-17, the Petitioner appealed a Circuit Court of Ritchie County order denying him credit against child support arrearage for insurance premiums payments and twenty-five months of physical custody of Hailey. On June 16, 2006, this Court issued an opinion affirming that decision of the lower court in that civil appeal. See Hayhurst v. Shepard, ___ W.Va. ___, 633 S.E.2d 272, 2006 WL 1685245 (No. 32902) (June 16, 2006).

II. Standard of Review

This Court has addressed the standard of review applicable to a writ of prohibition, explaining that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). "The writ [of prohibition] lies as a matter of right whenever the inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate powers and it matters not if the aggrieved party has some other remedy adequate or inadequate." State ex rel. Valley Distributors, Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969).²

Moreover, in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court explained:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed 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 the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syllabus point one of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), also provided the following guidance in the evaluation of a request for a writ of prohibition:

In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Utilizing those standards of review, we examine the Petitioner's request for a writ of prohibition.

III. Discussion

This Court has consistently emphasized the importance of the parental duty to support children, stating as follows in syllabus point three of Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991): "The duty of a parent to support a child is a basic duty owed by the parent to the child, and a parent cannot waive or contract away the child's right to support." This Court has also stated that "[p]rovision of shelter and financial support for children is one of the most basic components of parental responsibility." In re Jamie Nicole H., 205 W.Va. 176, 183, 517 S.E.2d 41, 48 (1999). West Virginia Code § 48-11-101(a) (2001) (Repl.Vol.2004) provides, in pertinent part: "It is the intent of the Legislature that to the extent practicable, the laws of this...