In re Change of Name Regarding Minors, S.U. ( 2022 )

FILED
May 17, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re Change of Name Regarding Minors, S.U.
No. 21-0258 (Kanawha County 20-P-138 and 20-P-139)
MEMORANDUM DECISION
Self-represented petitioner S.U. 1 appeals the Circuit Court of Kanawha County’s March
19, 2021, order dismissing his appeals from a family court order denying his motions to reinstate
two petitions to change the names of his minor children. Respondent C.J., the children’s mother,
did not appear. On appeal, petitioner alleges that the circuit court “violate[d] the Supremacy
Clause, Due Process, and West Virginia law.”
This Court has considered petitioner’s brief 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, petitioner’s brief, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
We have previously issued detailed memorandum decisions concerning petitioner S.U.’s
attempts to divest his children’s mother of her custody of their children and even her status as the
children’s mother. See S.U. v. C.J. (“S.U. I”), No. 18-0566, 2019 WL 5692550 (W. Va. Nov. 4,
2019)(memorandum decision); S.U. v. C.J. (“S.U. II”), No. 19-1181, 2021 WL 365824 (W. Va.
Feb. 2, 2021)(memorandum decision); In re Adoption of E.U., L.U.-1, and L.U.-2 (“Adoption I”),
No. 20-0039, 2021 WL 4935772 (W. Va. Oct. 13, 2021)(memorandum decision); In re The
Children of: S.U. v. C.J., Nos. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476 (W.
Va. Oct. 13, 2021)(memorandum decision). Despite our repeated rulings upholding the mother’s
legal rights, petitioner again predicates his appeal on the baseless assertion that she was a
gestational surrogate. As we have previously ruled, there was never a valid, enforceable gestational
surrogacy agreement between petitioner S.U. and respondent. S.U. I, No. 18-0566, 2019 WL
1Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
5692550, at *4 (finding that “all of [petitioner’s assignments of error] . . . [w]ere grounded on his
contention that [respondent] was nothing more than a gestational surrogate for the parties’ three
youngest children” and declining to disturb the family court’s resolution of this issue in
respondent’s favor). Further, we have stressed that respondent “is the legal mother of all four
children.” 2 Id. As has become clear through his repeated attacks on respondent’s continued
exercise of a maternal relationship with, and custody over, the children, petitioner S.U. refuses to
accept the validity and finality of these determinations. Yet again, petitioner begins his statement
of facts by characterizing respondent as nothing more than a gestational surrogate, an assertion
that has become tedious.
The scope of the matter currently on appeal is extremely limited and concerns only an order
by the Family Court of Kanawha County denying petitioner’s motion to reinstate previously
dismissed petitions to change the names of two children, and the circuit court’s order dismissing
the appeal of that order. On appeal, petitioner has included in his appendix record documents from
several different proceedings, including from different counties, that are not at issue in this appeal.
Petitioner chose not to appeal from these prior orders and, accordingly, cannot now assign error to
any rulings contained therein. Instead, we are bound to solely analyze the ruling in the proceedings
from which he did appeal, Kanawha County docket numbers 20-P-138 and 20-P-139.
With these limitations in mind, we note that this appeal concerns petitioner’s attempt to
change the names of two of his children without providing notice to their mother. It is important
to stress that petitioner has a history of refusing to refer to the children by their legal names and
was, in fact, held in contempt for this very behavior. In 2019, petitioner refused to call two of the
children by their legal names, and the Family Court of Mason County used this fact as a partial
basis to both terminate petitioner’s remote visits with the children and to hold him in contempt for
the fifth time in those proceedings. In re The Children of: S.U. v. C.J., No. 20-0515, 20-0516, 20-
0612, and 20-0710, 2021 WL 4936476, at *2. Despite this, petitioner continued to refer to these
children by names other than their legal names in correspondence with Birth to Three staff and the
children’s school principal, and also in his legal filings. Id. at *3. As a result, yet again, petitioner
was found to be in contempt. Id.
Petitioner then filed petitions to change two of the children’s names in the Family Court of
Kanawha County in February of 2020. The following month, the Family Court of Kanawha County
transferred the petitions to the Family Court of Mason County, in part, upon a finding that “there
is a pending case involving the parties herein[] in Mason County (Civil Action No. 16-D-233 [S.U.
I]).” Petitioner then filed a motion to vacate the order transferring the petitions, although the record
is unclear if a ruling issued on this motion.
In the meantime, by orders entered on March 10, 2020, the Family Court of Mason County
dismissed the petitions upon finding that it “currently has jurisdiction over the custody proceeding
involving the minor child[ren]’s parents” and that petitioner failed to name the children’s mother
as a respondent, despite the fact that she is entitled to notice of the proceedings. According to the
Family Court of Mason County, petitioner “filed the petition[s] in an attempt to defraud the
2
Petitioner S.U. and respondent have two additional children who are not at issue in the
current matter.
2
Kanawha County Family Court and [the children’s mother].” The court dismissed the petitions
without prejudice. The Family Court of Mason County then reiterated that “[i]n keeping with the
[c]ourt’s order entered on January 31, 2020, . . . [petitioner] is prohibited from filing a pro se
petition for change of name for the minor children,” among other restrictions. Importantly, the
Family Court of Mason County’s orders were explicit that they were “final order[s] which any
party may appeal.” Petitioner did not appeal these orders. Instead, he moved to set aside the orders,
and that request was denied by orders entered on March 17, 2020. The Family Court of Mason
County again indicated that these were final, appealable orders, yet petitioner once again chose
not to appeal.
Instead, petitioner again filed petitions in the Family Court of Kanawha County to change
two of the children’s names. These petitions were given docket numbers 20-P-138 and 20-P-139
and give rise to the current appeal. By orders entered on June 3, 2020, the Family Court of
Kanawha County again transferred the petitions to the Family Court of Mason County upon a
finding that the court there continued to exercise jurisdiction over a matter involving the parties.
On June 16, 2020, the Family Court of Mason County issued orders dismissing the
petitions, again finding that petitioner failed to name the children’s mother as a respondent. The
court again found that petitioner filed the motions in an attempt to defraud the Kanawha County
court and the children’s mother. The court dismissed the petitions without prejudice, although it
reiterated its earlier limitations on petitioner’s ability to file self-represented pleadings. The court
noted that these were final, appealable orders, yet petitioner chose not to file an appeal.
On June 22, 2020, in the Family Court of Kanawha County, petitioner filed a “Motion To
Reinstate” that he claimed was filed “[p]ursuant to West Virginia Rule 59” without specifying the
particular set of rules to which he referred. In his motion, petitioner asserted that the family court
erred in transferring the petitions to Mason County and that he, “by law, will be forced to re-file
the same petitions in this [c]ourt if this [c]ourt does not reinstate the same.” Petitioner also stated
that the “Mason County Family Court’s Dismissal Order states that it will not accept further
transfers” despite the fact that the orders contain no such finding. Instead, the Family Court of
Mason County explained that it would not accept future petitions for name changes, or transfers
thereof, “until such time as [petitioner] has complied with the [c]ourt’s prior [o]rder entered on
March 10, 2020, in civil action number 20-D-35.”
By order entered on June 26, 2020, the Family Court of Kanawha County denied
petitioner’s motion to reinstate, finding that this was petitioner’s “second or third attempt to
fraudulently file pleadings which are subject to the jurisdiction of the Family Court of Mason
County.” The court further ordered the Clerk of the Circuit Court of Kanawha County not to accept
any future self-represented filings for name changes from petitioner, in addition to any cases
related to the children’s mother, given that the parties were subject to the jurisdiction of the Family
Court of Mason County.
In July of 2020, petitioner appealed the Family Court of Kanawha County’s order denying
his motion to reinstate, raising the following three grounds: (1) denial of due process in failing to
hold a hearing on the petitions, limiting petitioner’s ability to file future self-represented pleadings,
claiming that petitioner attempted to fraudulently file pleadings, identifying respondent as the
3
children’s mother, and failing to direct petitioner to perfect service on respondent; (2) failure to
abide by West Virginia Code § 48-25-101(a)(1), permitting a petition for name change to be filed
in the county in which the party was born; and (3) violation of West Virginia Code § 56-1-1(b),
governing change of venue in civil actions.
On March 19, 2021, the Circuit Court of Kanawha County entered a “Dismissal Order”
denying petitioner’s appeal. According to the order, petitioner “filed substantially similar petitions
in no less than two county courts and has been warned on multiple occasions that he must provide
notice to the infant minors’ statutorily recognized mother if he intends to file petitions to change
the names of the infant minors.” As such, the court found that the petitions “were filed for the
improper purpose of changing the minors’ names without providing service to the minors’
custodial parent.” The court also found no error in the limitations on petitioner’s ability to file self-
represented pleadings in regard to the children and respondents “on the basis that jurisdiction
regarding the custody of the minor children continues in the Mason County Family Court.” It is
from the court’s order denying his appeal that petitioner appeals.
At the outset, we must first parse out the nature of petitioner’s “Motion to Reinstate.” In
his motion, petitioner indicated that it was filed “[p]ursuant to West Virginia Rule 59” without
providing any additional information. Accordingly, we are left to guess as to which set of this
Court’s rules petitioner refers. Presumably, petitioner refers to Rule 59(e) of the West Virginia
Rules of Civil Procedure governing motions to alter or amend a judgment. 3 Rule 54(a) of the Rules
of Civil Procedure defines “judgment” as “a decree and any order from which an appeal lies.” We
have further explained “that a writ of prohibition is an appropriate method to challenge a transfer”
because “the relief permitted by appeal might be inadequate.” State ex rel. Mitchem v. Kirkpatrick,
199 W. Va. 501, 503, 485 S.E.2d 445, 447 (1997). In addressing the appropriate manner in which
to challenge the transfer of an action, we have also explained as follows:
Considering the inadequacy of the relief permitted by appeal, we believe this issue
should be settled in this original action if it is to be settled at all. In recent times in
every case that has had a substantial legal issue regarding venue, we have
recognized the importance of resolving the issue in an original action.
State ex rel. Riffle v. Ranson, 195 W. Va. 121, 124, 464 S.E.2d 763, 766 (1995).
Indeed, that is the case here, as even if petitioner were correct that transfer was
inappropriate, neither the Family Court of Kanawha County nor the Circuit Court of Kanawha
County had the authority to grant petitioner any relief from the prior order transferring his petitions
to Mason County once the latter court exercised jurisdiction over the petitions. It is also important
to note that petitioner chose not to appeal any of the orders from Mason County, thereby depriving
3
This Court has previously addressed the confusing nature of litigants giving Rule 59(e)
motions improper titles and instructed that “[c]alling a Rule 59(e) motion a motion to ‘reconsider’,
‘vacate’, ‘set aside’, or ‘reargue’ is confusing to a trial court, and where such motions are filed
within ten days of judgment they should be correctly styled as Rule 59(e) motions to alter or amend
judgment.” Syl. Pt. 6, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995) (citation
omitted).
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this Court of the ability to review the issues addressed therein. Because of these failures, petitioner
cannot be entitled to relief on appeal to this Court. Accordingly, we decline to address petitioner’s
arguments on appeal related to the Family Court of Kanawha County’s application of West
Virginia Code § 48-25-101, governing petitions for name changes.
It is also important to note that petitioner continues to advance several arguments that are
directly counter to the many rulings from this Court regarding his children. Specifically, petitioner
asserts that “Mason County family court did not have jurisdiction in action 16-D-233,” the
proceeding that gave rise to S.U. I. This is clearly false and undermines all of petitioner’s positions
before this Court. The Family Court of Mason County properly exercised jurisdiction over the
proceedings that gave rise to S.U. I, and petitioner may not challenge that jurisdiction, especially
in a proceeding that does not originate from Mason County. Further undermining his position on
appeal, petitioner argues that “it is only the parent who has the right to name their child” and that
respondent “is not a parent of S.U.’s children and has no rights regarding S.U.’s children.” As this
position has been repeatedly rejected, it will, again, find no purchase before this Court.
Further compounding petitioner’s errors is the fact that, in support of his argument, he
incorporates his briefing from prior cases before this Court “and reasserts the same as if fully stated
herein.” Given that petitioner was unsuccessful in these prior proceedings, he cannot be entitled to
relief in the current matter upon the same baseless arguments. See In re The Children of: S.U. v.
C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476 (W. Va. Oct. 13,
2021)(memorandum decision).
Finally, we find that petitioner is entitled to no relief in regard to his assertion that the
circuit court erred in upholding the family court’s restrictions on his ability to file self-represented
pleadings. This is not the first appeal in which petitioner has taken issue with a court’s order
imposing limitations on his ability to file self-represented pleadings. See id. at *5-6. Given that
several courts have repeatedly found that his petitions to change the children’s names were filed
for fraudulent purposes—in conjunction with the fact that he was twice held in contempt in Mason
County for his failure to address the children by their legal names—we find no error in the
reasonable limits on his ability to file additional self-represented pleadings. See Nelson v. W. Va.
Pub. Emp. Ins. Bd., 171 W. Va. 445, 453-54, 300 S.E.2d 86, 95 (1982) (“[E]very person is not
entitled to his day in court regardless of the frivolous nature of the suit. Parties whose interest in
the legal process is to oppress or cheat others should be discouraged.”); Mathena v. Haines, 219
W. Va. 417, 422, 633 S.E.2d 771, 776 (2006) (“While access to courts is a recognized fundamental
right, it is also a commonly recognized principle that such right of access is not without
limitations.”); State ex rel. James v. Hun, 201 W. Va. 139, 141, 494 S.E.2d 503, 505 (1997) (The
“right of meaningful access to the courts is not completely unfettered.”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
19, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 17, 2022
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CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
Justice Walker, concurring, and joined by Chief Justice Hutchison:
I concur with this memorandum decision. But by taking up and rejecting this appeal, we in
no way condone Petitioner’s continued filing of frivolous, vexatious, and harassing petitions and
appeals. And I encourage the Family Court of Mason County to fully utilize its civil contempt
powers under West Virginia Code § 51-2A-9 if Petitioner attempts to circumvent its orders by
filing in another court, as he did here, or by otherwise disregarding its authority. These powers
include the ability to increase monetary sanctions and “place the person on work release, in a
weekend jail program, in an existing community service program, in an existing day-reporting
center program, in any other existing community corrections program or on home confinement
until the person has purged himself or herself of the contempt.” 4
Previous monetary sanctions have proved inadequate to deter Petitioner from filing
vexatious litigation and wasting this State’s judicial resources. For instance, in another proceeding,
the family court required Petitioner to pay $1,500 in attorney fees and post a cash bond with the
clerk of court to ensure future compliance with orders after many “instances where [it] found
[P]etitioner to be in willful and contumacious contempt of a prior order against harassment and
that he had the ability to follow the orders but failed to do so.”5 And on another occasion, the
family court found Petitioner in contempt—for the fifth time in that case—and required him to pay
additional cash bonds and attorney fees. 6 But Petitioner continues to disregard the family court’s
authority. So, the family court has not yet used “the least possible power adequate to the end
proposed . . .” 7 and should utilize the additional remedies permitted by West Virginia Code § 51-
2A-9(c), if the problem persists.
Chief Justice Hutchison joins me in this concurrence.
4
W. Va. Code § 51-2A-9(c).
5
In re The Children of: S.U. v. C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021
WL 4936476, at *2.
6
Id.7
W. Va. Code § 51-2A-9 (b).
6