STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Frank S., Petitioner Below, FILED
Petitioner May 18, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-0558 (Harrison County 83-C-582) OF WEST VIRGINIA
Deborah S., Respondent Below,
Respondent
MEMORANDUM DECISION
Petitioner Frank S., by counsel Gregory Schillace, appeals the Circuit Court of Harrison
County’s May 6, 2014, order that refused his petition for appeal from a March 5, 2014, order of
the Family Court of Harrison County.1 Respondent Deborah S., pro se, filed a response. On
appeal, petitioner alleges that the lower courts erred in concluding that he owes back spousal
support and that the circuit court amended its order without properly notifying the interested
parties.
This 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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
The parties last lived together as husband and wife on January 10, 1983. They had one
child during the marriage. The parties were divorced by final order entered January 31, 1985.
Pursuant to that order, custody of the minor child was allocated to respondent, and petitioner was
ordered to pay respondent spousal support in the amount of $125 per month until she died or
remarried, until petitioner died, or until further order of the court. Petitioner was also ordered to
maintain medical insurance for the child and to pay one-half of the child’s expenses not covered
by insurance.
In 1994, respondent filed a petition for contempt asserting that petitioner failed to comply
with the January 31, 1985, order. By agreed order entered March 17, 1995, respondent was
granted a judgment of $2,878.80 for unreimbursed health insurance premiums; $397.50 for one
1
We follow our past practice in . . . cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. West Virginia Dept. of Human Services v. Cheryl M.,
177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
1
half of the child’s orthodontic bill, which was paid by respondent; $1,735 for one-half of the
outstanding orthodontic bill; and $39.11 per month for the child’s health insurance.
In 1999, respondent filed a second petition for contempt asserting that petitioner owed
unpaid monies and accrued interest pursuant to prior court orders. By agreed order entered April
14, 1999, the lower court found that petitioner owed respondent $7,632.83 in spousal support
arrears, toward which petitioner had paid $1,632.83. The lower court granted respondent a
judgment for the remaining $6,000.2
On September 20, 2013, respondent, pro se, filed another petition for contempt asserting
the petitioner owed $31,385 in unpaid spousal support. Petitioner did not respond to respondent’s
petition, and the family court held a hearing on November 27, 2013. Petitioner argued that, at
some point, he and respondent agreed to ignore the spousal support obligation, and, instead,
petitioner would assist their daughter with her college expenses.3
The family court rejected petitioner’s argument to apply the parties’ agreement that he
would assist with their daughter’s college expenses in lieu of paying spousal support. On
December 9, 2013, the family court entered a judgment order against petitioner for back spousal
support and interest in the amount of $41,702.49. In calculating the back spousal support, the
family court gave petitioner credit for payment of three installments of $325 during 1999; the
full amount of spousal support in 2000 and 2001 for the daughter’s college expenses; the full
amount of spousal support in 2010 and 2011; and $125 in February of 2012.
In February of 2014, petitioner filed a motion for reconsideration of the December 9,
2013, order arguing, for the first time, that any claims for back spousal support due prior to
September of 2003, were barred by the statute of limitations pursuant to West Virginia Code §
38-3-18.4 By order entered March 5, 2014, the family court denied petitioner’s motion for
reconsideration. The family court declined to consider petitioner’s statute of limitations defense
because he failed to affirmatively plead the defense in accordance with Rule 8(c) of the West
Virginia Rules of Civil Procedure or raise it during the contested hearing.
2
The lower court directed petitioner to pay respondent $325 a month for eighteen months
to satisfy this debt.
3
The record is devoid of any evidence that petitioner filed a motion to modify spousal
support based upon this alleged agreement. During the hearing, respondent acknowledged that
there was a discussion about the agreement but maintained petitioner paid minimal amounts to
assist their daughter.
4
West Virginia Code § 38-3-18 states that
On a judgment, execution may be issued within ten years after the date
thereof. Where execution issues within ten years as aforesaid, other
executions may be issued on such judgment within ten years from the
return day of the last execution issued thereon, on which there is no return
by an officer, or which has been returned unsatisfied.
2
In April of 2014, petitioner filed a petition for appeal in the circuit court reasserting his
position that any claims for back spousal support due prior to September of 2003, were barred by
the statute of limitations pursuant to West Virginia Code § 38-3-18. By order entered May 2,
2014, the circuit court granted the appeal, in part, denied the appeal, in part, and remanded the
matter to the Family Court of Harrison County for further proceedings on the limited issue of the
statute of limitations. The circuit court reasoned that the family court should have addressed the
statute of limitations issue because petitioner exercised his right to self-representation. See
Cottrill v. Cottrill, 219 W.Va. 51, 631 S.E.2d 609 (2006) (holding that the Circuit Court should
have made reasonable accommodations to protect pro se father and his rights and was required to
address father's statute of limitations argument.). However, on May 6, 2014, the circuit court
entered an amended order vacating its May 2, 2014, order and denying petitioner’s petition for
appeal altogether. The circuit court held that petitioner failed to raise the affirmative defense of
the statute of limitations during the underlying proceedings.5 It is from this order that petitioner
now appeals.
We have previously established the following standard of review:
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, 607 S.E.2d 803 (2004).
First, petitioner re-asserts that the circuit court erred because any claims for back spousal
support due prior to September of 2003, are barred by the statute of limitations pursuant to West
Virginia Code § 38-3-18. This Court finds no merit in petitioner’s argument. Petitioner cites to
no objection that his counsel properly raised his statute of limitations defense in the family court.
Therefore, based on the limited facts and circumstances of this case, we find no error in the
circuit court’s rulings.
Petitioner also argues that the circuit court erred in entering its amended order that
reversed its prior decision without affording the parties proper notice. We disagree. “A court has
the inherent power to amend its records in accordance with the facts.” Syllabus, in part, Dwight
v. Hazlett, 107 W.Va. 192, 147 S.E.2d 877 (1929). This Court further held that “[t]he better
practice requires that notice be given to all parties whose interest may be affected . . . . But the
procedure in that respect will be left to the sound discretion of the trial judge . . . .” Id. It is
undisputed that by order entered May 2, 2014, the circuit court granted the appeal, in part, denied
the appeal, in part, and remanded the matter to the Family Court of Harrison County for further
5
The circuit court acknowledged that its legal and factual analysis was based on the
erroneous fact that petitioner represented himself during the underlying proceedings when, in
fact, petitioner was represented by counsel.
3
proceedings on the limited issue of the statute of limitations based upon the premise that
petitioner elected to represent himself in the underlying proceedings. The circuit court amended
its May 2, 2014, order in accordance with the dispositive fact that petitioner was in fact
represented by counsel during the underlying proceedings. The order was amended within four
days of its entry and “in the interest of justice and fairness” of the parties. Further, petitioner
does not assert that he was prejudiced by the May 6, 2014, order. Based on the specific facts of
this case, we find that the circuit court did not abuse its discretion.
For the foregoing reasons, we affirm the May 6, 2014, order of the circuit court.
Affirmed.
ISSUED: May 18, 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
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