Young v. Young

• Decision Date: 04 March 1975
• Docket Number: No. 13512,13512
• Citation: 158 W.Va. 521,212 S.E.2d 310
• Court: West Virginia Supreme Court
• Parties: Pamela R. YOUNG v. Gary L. YOUNG.

Page 310

212 S.E.2d 310

158 W.Va. 521

Pamela R. YOUNG v. Gary L. YOUNG.

No. 13512.

Supreme Court of Appeals of West Virginia.

March 4, 1975.

Syllabus by the Court

1. From the date of its filing, an affidavit of indigency executed pursuant to W.Va.Code 1931, 59--2--1, is sufficient notice to the court system of the State, including this Court, that the affiant is entitled, as a pauper, to access to the courts to contest the processes of law invoked against him in equal measure as is provided those who are able to pay for the use of our system of justice and the services of its officers. W.Va.Const., art. III, § 17.

2. In the exercise of its appellate jurisdiction, this Court cannot consider nonjurisdictional errors not raised and decided by the trial court.

3. In this jurisdiction, a recital in a final order is not a verity and, like a finding of fact, must derive its efficacy from the record. Although presumptively correct, if a recital is shown to be without support in the record, it should be disregarded and the judgment modified and corrected accordingly.

4. Where there is an obvious and irreconcilable conflict between a recital in the final order and the occurrence as documented in the transcript on a material issue presented for appellate determination, the record must be remitted to the trial court for factual development of, and ruling anew upon, this point.

5. A proper application of the Due Process Clause of the West Virginia Constitution secures to a litigant a meaningful opportunity to be heard when the processes of the courts are invoked against him; and when the record in an action or suit is such that an appellate court cannot, in justice, determine whether the litigant has been fully accorded such right, the case should be remanded to the trial court for further development. W.Va.Const., art. III, § 10.

Gary L. Young, pro se.

Robert E. Holroyd, Princeton, for appellee.

HADEN, Chief Justice:

This is an appeal by Gary Lee Young from the final order of the Circuit Court of Mercer County, West Virginia, awarding his wife, Pamela R. Young, a divorce, custody and control of the infant child born of the marriage, and adjudicating certain property rights of the parties.

The appellant proceeds in this Court, Pro se and in Forma pauperis. He assigns three alleged errors: (1) that the trial court erred in refusing to permit the appellant to proceed in Forma pauperis in the divorce action; (2) after being informed that appellant was a pauper, the trial court erred in requiring that Mr. Young provide a bond to secure the costs of such proceeding before that court would permit appellant to contest the divorce action, and (3) that the trial court erred in reciting in the final order that defense counsel withdrew the answer and counterclaim contesting the divorce when the record demonstrated that the defendant was not then represented by counsel.

The record unequivocally demonstrates that Gary Young was assisted by counsel during the preliminary stages of this litigation. His wife instituted the civil action by complaint charging him with mental cruelty. Through his counsel's aid, Mr. Young filed a timely answer and counterclaim denying the charge of mental cruelty, offering to reconcile, and seeking sole or joint custody of the couple's infant daughter. The trial court entered a 'temporary' order resolving preliminary matters at a hearing of December 28, 1973 where both parties appeared in person and, also, by counsel.

Sometime later when the case had apparently matured for final hearing, problems developed which ultimately resulted in the granting of this appeal. On February 28, 1974, the trial court awarded Pamela R. Young a final divorce and other relief after conducting an uncontested hearing of the cause. The final order entered pursuant to that proceeding is in apparent or actual conflict with the transcript of the proceeding. The point in conflict is whether the appellant waived, by his own actions or by counsel appearing for him, his right to contest the divorce action concluded on that date. To resolve the conflict we must determine whether Mr. Young 'appeared' in person and waived his right to contest or 'appeared' by his counsel and waived contest, or did neither.

In this respect the transcript refers to an earlier continuance of the final hearing. In the judge's words, and through colloquy with plaintiff and her counsel, that part of the record reveals:

'On February 21, 1974, this matter came on for hearing and the Defendant appeared by counsel, Mr. Edwin Wiley, voicing objection to the hearing on this matter on an uncontested basis. The Court delayed the hearing of this case for one week, this being February 28, to give the defendant an opportunity to furnish the Court with ample security in the amount of Five Hundred Dollars ($500.00) for a contested divorce hearing on this date. The Court has heard nothing from the defendant or his attorney, nor has this matter been referred to a Commissioner for hearing. So I will ask Mr. Holroyd, the Attorney for the plaintiff, Pamela R. Young, if he has heard anything from the defendant or his Attorney concerning the Five Hundred Dollars ($500.00) cash deposit?

'REH (Mr. Holroyd): No, Your Honor, I have not, nor have either the counsel or Mr. Jim Ballard, also of counsel. I have heard nothing from either of them with regard to further objection to proceeding with the case.

'JUDGE: The defendant appeared outside the door and asked the Court to ascertain from Mrs. Young if she is desirous of going forward with hearing this as an uncontested matter.

'JUDGE TO MRS. YOUNG: Are you ready to go forward on an uncontested matter, Mrs. Young?

'PRY (Pamela Young): Yes.

'JUDGE: Let the Court proceed on this divorce as an uncontested matter.' (Emphasis supplied).

The court then conducted and concluded the hearing, as reflected in a final order entered on the same date. That order, however, contradicts the previously quoted transcript by reciting Inter alia:

'This action came on this day to be heard upon the Complaint duly filed and served upon the defendant in person; upon the action having properly matured and having been placed upon the dockets for trial, There being present the undersigned Judge, the plaintiff, Pamela R. Young, Robert E. Holroyd, her attorney, the witness on behalf of the plaintiff, And also came the defendant by counsel. Whereupon, counsel for the defendant announced to the Court his desire to withdraw his Answer and Counter-Claim in this action. It is accordingly ORDERED that the Answer and Counter-Claim of the defendant be, and the same are hereby, withdrawn and held for naught. Whereupon, the Court proceeded to hear evidence in behalf of the plaintiff in support of her Complaint. At the conclusion of all of the evidence, the Court makes the following findings of fact: (et cetera) . . ..' (Emphasis supplied).

Four days after the final order was entered, an affidavit, acknowledged February 27, 1974, was filed or lodged in the circuit clerk's office in the instant civil action file. That document was a pauper's affidavit executed by Gary Young in which he stated his inability to pay the costs of the action or to give security therefor in the sum of $500.00. Accordingly, he requested that he be permitted to defend the action in Forma pauperis; that counsel be provided him without cost or obligation; that the proceeding be delayed until June 1974 for final disposition; and for such other relief as the court would deem proper.

From the date of filing, March 4, 1974, that affidavit was a sufficient notice to the court system of the State, including this Court, that the appellant is entitled, as a pauper, to access to the courts to contest the processes of law invoked against him in equal measure as is provided those who are able to pay for the use of our system of justice and the services of its officers. Article III, Sections 10 and 17 of the West Virginia Constitution secure and guarantee that right to an indigent or pauper who desires to prosecute or defend rights protected by law. And, of course, the same rights are guaranteed a state litigant by the Fourteenth Amendment to the United States Constitution. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1970). In addition, West Virginia Code, Chapter 59, Article 2, Section 1 provides a statutory elaboration of the constitutional right which has been available to litigants in the Virginias since 1849. Once a poor person brings his status to the attention of the courts, the protections of the statute and the Constitution should be promptly provided. Mars v. Luff, W.Va., 186 S.E.2d 768, 52 A.L.R.3d 839 (1974); Humphrey v. Mauzy, W.Va., 181 S.E.2d 329 (1971). For the foregoing reasons this Court, our Clerk, and the Clerk of the Circuit Court of Mercer County have provided Gary Young both access and means to prosecute this appeal.

Nevertheless, the appellant's nowacknowledged status as a pauper does not vitiate the proceedings had against him in in the divorce action in Mercer County. Although he alleges here that he tendered his pauper's affidavit to the trial court during his abortive 'appearance' on February 28, 1974 at the final hearing, the record does not substantiate his claim in that regard. The record only indicates his appearance outside the door of the court's chambers and, according to the trial judge, his inquiry as to whether his wife wished to proceed with the hearing of the case on an uncontested basis. Other than taking note of appellant's unsubstantiated assertions in brief and oral argument, this Court finds no basis from which it may conclude that the trial court was advised of Mr. Young's indigency or of his current intent to contest the action Pro se or through appointed counsel. This Court cannot consider nonjurisdictional errors not raised and decided by the trial court. Western Auto Supply Company v. Dillard, 153 W.Va. 678, 172...