Emanuel R. v. Danielle R., and the West Virginia Department of Human Services Bureau for Child Support Enforcement ( 2024 )


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  •                                                                                    FILED
    October 22, 2024
    C. CASEY FORBES, CLERK
    STATE OF WEST VIRGINIA                            SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Emanuel R.,
    Petitioner Below, Petitioner
    v.) No. 23-305 (ICA No. 22-ICA-156)
    Danielle R., and the West Virginia Department
    of Human Services
    Bureau for Child Support Enforcement,
    Respondents Below, Respondents
    MEMORANDUM DECISION
    Petitioner Emanuel R. appeals the April 10, 2023, memorandum decision of the
    Intermediate Court of Appeals of West Virginia (“ICA”), which affirmed the Family Court of
    Cabell County’s August 9, 2022,1 order modifying the petitioner’s child support obligations and
    entering judgment against him for child support arrears.2 See Emanuel R. v. Danielle R., No. 22-
    ICA-156, 
    2023 WL 2863282
     (W. Va. Ct. App. Apr. 10, 2023) (memorandum decision). The
    petitioner argues that the family court and the ICA erred in the evaluation of the petitioner’s
    income, modification of child support, and entry of a judgment for arrearages in child support.
    1
    There appears to be a slight difference in the date the family court signed the order
    (August 9, 2022) and the date the order was filed and entered by the clerk (August 11, 2022). As
    discussed infra in note 3, we were not provided with a docket sheet or other information to evaluate
    the proper entry date of the order and it does not appear to impact this appeal; therefore, we adopt
    the date of the family court’s order used by the ICA, which was August 9, 2022.
    2
    Petitioner Emanuel R. is self-represented. Respondent West Virginia Department of
    Human Services Bureau for Child Support Enforcement (“BCSE”) is represented by Allison C.
    Ojeda. Respondent Danielle R. makes no appearance before this Court. We use initials where
    necessary to protect the identities of those involved in this case. W. Va. R. App. P. 40(e).
    Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as
    the West Virginia Department of Health and Human Resources was terminated. It is now three
    separate agencies—the Department of Health Facilities, the Department of Health, and the
    Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of appeals involving the
    Bureau for Child Support Enforcement, the agency is now the Department of Human Services
    (“DHS”).
    1
    Upon our review, finding no substantial question of law and no prejudicial error, we determine
    oral argument is unnecessary and that a memorandum decision affirming is appropriate.3 See W.
    Va. R. App. P. 21(c).
    Petitioner Emanuel R. and Respondent Danielle R. are the parents of one child, born in
    2007. Child custody and support were established and, at the time the petition for modification of
    child support that is the subject of this appeal was filed, the controlling order for the support
    obligation was entered in 2015. In October 2021, the petitioner filed a petition to modify child
    support requesting a decrease based on a change of income. The petitioner’s attempted service on
    Danielle R. was unsuccessful. He filed a supplemental petition to modify on April 20, 2022, with
    a hearing scheduled on May 23, 2022. The petitioner and the BSCE attended this hearing by phone,
    but Danielle R. had not been served and did not appear. The petitioner was instructed to consult
    an attorney regarding his difficulty serving Danielle R., and the family court entered an order
    removing the case from the docket because she had not been properly served.
    On June 1, 2022, the BCSE filed its petition to modify child support and both the petitioner
    and Danielle R. were served. A notice of an August 1, 2022, hearing was subsequently sent by
    mail. Danielle R. and the BCSE attended the hearing by phone, but the petitioner did not appear.
    Although the family court attempted to contact the petitioner, it was unable to reach him. In its
    August 11, 2022, order resulting from the hearing, the family court attributed full-time minimum
    wage earnings to the petitioner. It then decreased his monthly support obligation from $535.80 to
    $226.73 under the relevant formula, effective as of August 1, 2022. In addition, the family court
    found that the petitioner’s support obligation under the prior order was $1,780.37 in arrears, with
    interest due in the amount of $42.96 as of June 30, 2022, and so awarded Danielle R. a judgment
    of $1,823.33. The final modification order was entered by the family court on August 9, 2022.
    The petitioner appealed to the ICA, raising several assignments of error. Of relevance to
    the assignments of error raised before this Court, the petitioner argued that the family court failed
    to consider his decrease in income. The ICA recounted that the petitioner failed to appear at the
    family court’s August 1, 2022, hearing and, therefore, did not present any evidence related to his
    claim. Because the ICA’s review was limited to the evidence developed before the family court, it
    could not consider his argument. The ICA also found that the family court correctly attributed
    minimum wage to the petitioner, as there was no evidence that he could not work a full-time
    3
    The petitioner failed to file an appendix record containing the documents required under
    Rule 7 of the West Virginia Rules of Appellate Procedure; accordingly, the facts recited here are
    gleaned from the final family court order and Emanuel R., 
    2023 WL 2863282
    , which were
    appended to the petitioner’s notice of appeal, and from the parties’ briefs to the extent undisputed.
    This failure alone would justify affirming the lower tribunals without consideration of the
    petitioner’s assignments of error, but we nevertheless consider his claims to the extent possible.
    See In re A.R.P. and A.R.C., No. 22-0084, 
    2023 WL 3969732
    , *2 (W. Va. June 13, 2023)
    (memorandum decision) (finding that the failure to include relevant briefing and orders from the
    family court was fatal to the petitioner’s claims on appeal due to a “failure to provide this Court
    with materials affirmatively showing error below”).
    2
    minimum wage position, and that the family court determined the (lower) monthly support amount
    based upon the child support guidelines. The ICA likewise found no merit in the petitioner’s other
    assignments of error. Accordingly, the ICA affirmed the family court’s order, finding no clear error
    or abuse of discretion. See Emanuel R., 
    2023 WL 2863282
    , at *3.
    The petitioner now appeals to this Court from the ICA’s decision, and our review is guided
    by the following standard:
    On appeal of a final order of a family court from the Intermediate Court of
    Appeals of West Virginia, the Supreme Court of Appeals of West Virginia shall
    review the findings of fact made by the family court for clear error, and the family
    court’s application of law to the facts for an abuse of discretion. The Supreme Court
    of Appeals shall review questions of law de novo.
    Syl. Pt. 3, Christopher P. v. Amanda C., 
    250 W. Va. 53
    , 
    902 S.E.2d 185
     (2024).
    Before this Court, the petitioner raises four assignments of error. First, he claims that the
    family court erred by “retroactively modifying child support so as to retroactively increase [his]
    child support obligation and prospectively modify child support so as to prospectively increase
    [his] child support obligation as updated income had decreased more than [fifteen] percent.” In his
    second assigned error, he contends that he did not act fraudulently in reporting his income. He
    references his October 2021 petition and says, “Updated income was a substantial decrease in
    previous income. More than 15 percent.” Third, the petitioner claims that the ICA “refused the
    standard of evidence . . . in which [he] did provide evidence of decreased income” when he
    petitioned for modification in October 2021. Fourth, he argues that the ICA prospectively modified
    his child support obligation, again referencing his October 2021 petition.
    As we understand the petitioner’s arguments, he contends that his October 2021 petition
    controls the modification of his support obligation and that the evidence submitted in support of
    that petition should have had an impact on the determination of his child support obligation.4 As
    stated above, the petitioner’s October 2021 petition was dismissed by the family court due to the
    petitioner’s failure to serve Danielle R. The operative petition was the one filed by the BCSE on
    June 1, 2022, and the relevant proceeding was the August 2022 hearing. The petitioner failed to
    appear for the hearing on that petition, and he therefore failed to offer evidence in support of his
    4
    We note that the petitioner appears to raise claimed errors before this Court that were not
    raised before the ICA. “Our general rule is that nonjurisdictional questions . . . raised for the first
    time on appeal will not be considered.” Noble v. W. Va. Dep’t of Motor Vehicles, 
    223 W. Va. 818
    ,
    821, 
    679 S.E.2d 650
    , 653 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 
    206 W.Va. 333
    ,
    349 n. 20, 
    524 S.E.2d 688
    , 704 n. 20 (1999)); accord Vernon M. v. Jan M., No. 18-0041, 
    2019 WL 644001
    , *1 n. 2 (W. Va. Feb. 15, 2019) (memorandum decision) (quoting and applying the general
    rule in the appeal of a family court final order to the circuit court). Therefore, we will only consider
    the assignments of error raised before this Court to the extent that they were also raised before the
    ICA.
    3
    decreased income and any other argument pertaining to the calculation of his child support
    obligation or arrearage. As the petitioner’s arguments all flow from a faulty premise and rely on
    evidence not presented below, we do not consider them. See W. Va. R. App. P. 6(a), in part (“The
    record on appeal consists of the documents and exhibits filed in the proceedings in the lower
    tribunal, the official transcript or recording of proceedings, if any, and the docket entries of the
    lower tribunal.”); 
    W. Va. Code § 51
    -2A-8(d) (providing that “[t]he recording of the hearing or the
    transcript of testimony, as the case may be, and the exhibits, together with all documents filed in
    the proceeding, constitute the exclusive record [in family court proceedings.]”). Consequently, the
    petitioner has demonstrated no error in the family court’s order modifying his child support
    obligation and entering judgment against him for child support arrears, and his assignments of
    error lack merit.
    Accordingly, the ICA correctly concluded that the petitioner’s argument regarding his
    decrease in income could not be considered and we affirm.
    For the foregoing reasons, we affirm.
    Affirmed.
    ISSUED: October 22, 2024
    CONCURRED IN BY:
    Chief Justice Tim Armstead
    Justice Elizabeth D. Walker
    Justice John A. Hutchison
    Justice William R. Wooton
    Justice C. Haley Bunn
    4
    

Document Info

Docket Number: 23-305

Filed Date: 10/22/2024

Precedential Status: Precedential

Modified Date: 10/22/2024