A.S. v. K.T.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
A.S., Respondent Below,
Petitioner FILED
September 11, 2015
RORY L. PERRY II, CLERK
vs) No. 14-1027 (Mercer County 14-D-132) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
K.T., Petitioner Below,
Respondent
MEMORANDUM DECISION
Petitioner A.S., 1 appearing pro se, appeals the order of the Circuit Court of Mercer
County, entered October 1, 2014, refusing his appeal from the July 21, 2014, order of the Family
Court of Mercer County. In its July 21, 2014, order, the family court (1) allowed Respondent K.T.
to proceed on her original petition for divorce; (2) denied various motions by respondent; (3)
granted the parties a divorce based on irreconcilable differences; (4) denied petitioner’s request
for spousal support; (5) awarded petitioner possession of his truck as his separate property; and (6)
directed that the parties each pay half of the marital debt, which was in the amount of $800.
Respondent, appearing pro se, filed a response.
The Court has considered the parties’ briefs 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, the briefs, 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.
The parties married on October 9, 2013, and separated on or about November 21, 2013.
Subsequently, respondent filed a petition for divorce on February 28, 2014. In March of 2014,
respondent caused a warrant to be issued for petitioner’s arrest resulting in petitioner’s
incarceration.2 Until his release, three successive attorneys were appointed to serve as petitioner’s
guardian ad litem (“GAL”).3
1
While the parties were granted a divorce based on irreconcilable differences, respondent
also made allegations of sexual abuse against petitioner. As such, in keeping with this Court’s
policy of protecting the identity of the victims of sexual crimes, the parties will be referred to by
their initials throughout this memorandum decision.
2
See fn. 1, supra.
3
See State ex rel. Lawson v. Wilkes, 202 W.Va. 34, 38, 501 S.E.2d 470, 474 (1998) (“[A]n
(continued …)
1
Petitioner’s first answer to the petition for divorce was filed pro se on April 17, 2014.
While petitioner denied respondent’s allegations that petitioner had abandoned her, petitioner
admitted that irreconcilable differences existed between the parties. Petitioner also sought to be
awarded possession of his truck as his separate property. Thereafter, petitioner’s GAL filed a
second answer on April 29, 2014. Petitioner admitted that irreconcilable differences existed
between the parties and maintained that the 1986 Ford F-150 truck should be awarded to him.
Petitioner also stated that the parties incurred a $800 debt to respondent’s mother and that each
party should be responsible for half of that debt.
On May 20, 2014, petitioner filed a pro se motion seeking the disqualification of Family
Court Judge Bisaha alleging that the judge had a conflict of interest. That same day, Judge Bisaha
denied petitioner’s motion because it was not filed through petitioner’s duly appointed GAL. The
GAL who represented petitioner at the time of the filing of his second answer was allowed to
withdraw and a new GAL was appointed.4 The family court did not rule on petitioner’s motion for
disqualification, but the court denied petitioner’s request to be transported from the Southern
Regional Jail for the final divorce hearing necessitating his representation at the hearing by a GAL.
The final divorce hearing occurred on June 2, 2014.5 During the hearing, respondent made
a motion to be allowed to proceed on her original petition. 6 The family court (1) granted
respondent’s motion; and (2) denied petitioner’s request to file a third answer. Petitioner’s GAL
made a motion to continue the hearing, and renewed the request to transport petitioner for the
hearing. The family court refused to continue the hearing, and denied the transport request finding
that petitioner’s interests were adequately represented by the presence of his GAL. The GAL
renewed petitioner’s motion for Judge Bisaha’s disqualification, which was also denied. The GAL
argued that Rule 17.01 of the West Virginia Trial Court Rules required that the motion for
disqualification be decided by the Chief Justice of this Court, and argued that the proceedings
should be stayed until such a ruling was obtained. The family court denied the request for a stay.
The family court ruled that the parties agreed that irreconcilable differences existed
between them, and that a divorce would be granted for that reason. Because petitioner’s
instructions were ambiguous as to the issue, the GAL stated that he could not waive petitioner’s
right to spousal support. The family court declined to award petitioner spousal support because (1)
otherwise unrepresented prisoner is entitled to a guardian ad litem . . . when an action is directly
maintained against him or her.”).
4
Petitioner was not satisfied with either of his first two GAL’s; consequently, the second
GAL filed a motion to withdraw on May 27, 2014, which will be discussed infra.
5
This Court has reviewed the video recording of the June 2, 2014, hearing.
6
Prior to this hearing, respondent filed an amended petition for divorce, which respondent
sought to withdraw because she wanted to proceed on the original petition.
2
the parties were married only for a very short time; and (2) respondent had no financial means
from which to pay such support. Respondent agreed that the Ford truck was petitioner’s separate
property; therefore, the family court awarded petitioner possession of that vehicle. The family
court directed that each party pay half of the $800 marital debt owed to respondent’s mother. The
order memorizing the family court’s rulings was entered on July 21, 2014. In the order, the family
court also released the GAL from further responsibility in the case.
Petitioner appealed the family court’s July 21, 2014, order to the circuit court. On August
21, 2014, the circuit court appointed a new GAL to represent petitioner in his appeal. The circuit
court conditionally granted petitioner’s appeal by an order entered on September 24, 2014. The
circuit court found that the family court’s substantive rulings were free of clear error or abuse of
discretion because those decisions conformed to the admissions found in petitioner’s answers.
However, because petitioner filed his motion for disqualification more than seven days before the
June 2, 2014, hearing, the circuit court determined that Trial Court Rule 17.01 required that the
motion’s transmittal to the Chief Justice of this Court, and a stay of the proceedings until the Chief
Justice’s ruling was obtained. The circuit court remanded the case to the family court for the
limited purpose of complying with Rule 17.01. The circuit court ruled that if the Chief Justice
disqualified Family Court Judge Bisaha, the circuit court would reverse the family court’s July 21,
2014, order and remand the case for a new hearing before a different family court judge; but if the
Chief Justice denied the motion, the circuit court would refuse petitioner’s appeal.
On September 26, 2014, Judge Bisaha complied with Rule 17.01 by transmitting
petitioner’s motion for disqualification to the Chief Justice of the Court, together with an
explanation by Judge Bisaha of why he believed the allegations stated in the motion did not
warrant his recusal. On September 30, 2014, the Chief Justice denied the motion. Accordingly, on
October 1, 2014, consistent with its previous ruling, the circuit court refused petitioner’s appeal of
the family court’s July 21, 2014, order.
Petitioner now appeals to this Court. We review the matter under the following standard:
In reviewing a final order entered by a circuit court judge upon a review of, or upon
a refusal to review, a final order of a family court judge, we review the findings of
fact made by the family court judge under the clearly erroneous standard, and the
application of law to the facts under an abuse of discretion standard. We review
questions of law de novo.
Syl., Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004).
On appeal, petitioner first assigns error to the family court’s failure to stay the proceedings
while his motion for disqualification was pending. We determine that because this motion was
subsequently found to be meritless, the family court’s decision to proceed with this June 2, 2014,
hearing constituted harmless error. See Shenandoah Sales & Service, Inc. v. Assessor of Jefferson
County, 228 W.Va. 762, 773, 724 S.E.2d 733, 744 (2012) (failure to stay proceedings was
harmless when insufficient evidence existed to warrant judge’s disqualification).
3
Second, petitioner argues that the family court erred in denying his request to file a third
answer to respondent’s divorce petition. We note that petitioner’s proposed third answer is in the
record on appeal as an exhibit to petitioner’s appeal to the circuit court. Upon our review of the
same, we find that the third proposed answer contains no allegation that was not contained in either
of petitioner’s first two answers. Therefore, we conclude the family court did not err in denying the
request to file the third answer.
Next, petitioner contends that the family court failed to allocate all of the parties’ debts and
assets. Respondent counters that (1) any debt owed for petitioner’s apartment was his sole
responsibility because petitioner already had the apartment when the parties married; and (2)
petitioner never mentioned any asset other than his truck.7 Upon our review of the record, we
determine that petitioner did not reference any debt owed for his apartment and never alleged that
the parties had any other assets. Therefore, we reject this assignment of error.
Fourth, petitioner alleges that the GAL who represented him at the June 2, 2014, hearing
was ineffective. However, the record belies this contention. We note two examples of the GAL’s
efforts to protect petitioner’s interests. First, by arguing Trial Court Rule 17.01 to the family court,
the GAL raised the issue on which the circuit court conditionally granted petitioner’s appeal.
Second, because petitioner’s instructions were ambiguous as to the issue, the GAL refused to
waive petitioner’s right to spousal support. Therefore, we find that petitioner has failed to establish
ineffective assistance of counsel.
Finally, we address petitioner’s fifth and sixth assignments of error together. Petitioner
asserts that the family court should have permitted him to personally attend the June 2, 2014,
hearing and should have granted the GAL’s May 27, 2014, motion to withdraw. “Whether a
prisoner may appear at [a hearing] is a matter committed to the sound discretion of the trial court.”
Syl. Pt. 3, in part, Craigo v. Marshall, 175 W.Va. 72, 72-73, 331 S.E.2d 510, 511 (1985). The only
reason the GAL gave for moving to withdraw was that petitioner did not desire to have the GAL
represent him. During this time frame, petitioner was incarcerated for allegedly sexually abusing
the other party in the case. In Syllabus Point 3 of Craigo, we held that a factor that a court needs to
consider when determining a prisoner’s request to personally appear at a hearing is whether the
prisoner’s presence would impose “any potential danger or security risk.” 175 W.Va. at 72-73, 331
S.E.2d at 511. In such circumstances—and where we have found that petitioner has not shown
ineffective assistance of counsel—we determine that the family court did not abuse its discretion
in requiring that petitioner be represented by a GAL at the hearing and declining to order his
transportation for the same.
7
We decline to address any allegation of petitioner’s regarding respondent’s interference
with petitioner’s retrieval of his truck. Respondent does not dispute that the family court awarded
petitioner possession of his truck. Respondent does state that she had the truck towed from her
residence. If petitioner believes that respondent is interfering with his retrieval of the truck, the
proper course would be to allege the same in a petition for contempt filed in the family court.
4
For the foregoing reasons, we find no error in the decision of the Family Court of Mercer
County and affirm the Circuit Court of Mercer County’s October 1, 2014, order refusing
petitioner’s appeal of the family court’s July 21, 2014, order.
Affirmed.
ISSUED: September 11, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
5