State ex rel. J. William St. Clair v. Judge Howard

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term
FILED
_____________________
March 26, 2021
released at 3:00 p.m.
No. 20-0442 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA ex rel. J. WILLIAM ST CLAIR,
Petitioner

v.

THE HONORABLE GREGORY L. HOWARD, JUDGE OF THE 6th
JUDICIAL CIRCUIT,
THE HONORABLE JARA HOWARD, FAMILY COURT JUDGE OF THE 6th
FAMILY COURT CIRCUIT, and
MOLLY M. P. ST CLAIR,
Respondents
_______________________________________________________

Petition for Writ of Prohibition
The Honorable Gregory L. Howard, Judge
Case No. 18D-532

WRIT DENIED
_________________________________________________________

Submitted: March 2, 2021
Filed: March 26, 2021

Scott D. Maddox, Esq. R. Lyne Ranson, Esq.
Maddox Law Office, PLLC Lyne Ranson Law Offices, PLLC
Huntington, WV Charleston, West Virginia
Counsel for Petitioner
Mike Kelly, Esq.
Mark W. Kelley, Esq.
Ray, Winton & Kelley, PLLC
Charleston, West Virginia
Counsel for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “Prohibition lies only to restrain inferior courts from proceeding in causes

over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding

their legitimate powers and may not be used as a substitute for writ of error, appeal or

certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).

2. “In determining whether to entertain and issue the writ of prohibition for

cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va.

12, 483 S.E.2d 12 (1996).

i
 3. “Where the issue on appeal from the circuit court is clearly a question of

law or involving an interpretation of a statute, we apply a de novo standard of review.”

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

4. “A movant seeking relief under Rule 60(b)(4) of the West Virginia Rules

of Civil Procedure must show that the judgment sought to be vacated is void and that the

motion to vacate the judgment was filed within a reasonable period of time.” Syl. Pt. 5,

Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009).

5. “This Court may, on appeal, affirm the judgment of the lower court when it

appears that such judgment is correct on any legal ground disclosed by the record,

regardless of the ground, reason or theory assigned by the lower court as the basis for its

judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

6. “‘“W. Va. Code, 48-2-33 [1984], requires a full disclosure of one spouse’s

financial assets to the other spouse at the time of divorce, and contemplates a meaningful

hearing on the subject of equitable distribution of property at which the spouse submitting

financial data may be cross-examined concerning the nature, origin and amount of assets.”

Syllabus point 1, Hamstead v. Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987), overruled

on other grounds, Roig v. Roig, 178 W. Va. 781, 364 S.E.2d 794 (1987).’ Syl. Pt. 2,

ii
Metzner v. Metzner, 191 W. Va. 378, 446 S.E.2d 165 (1994).” Syl. Pt. 1, Preece v. Preece,

195 W. Va. 460, 465 S.E.2d 917 (1995).

7. “‘“Whenever it is determined that a court has no jurisdiction to entertain the

subject matter of a civil action, the forum court must take no further action in the case other

than to dismiss it from the docket.” Syllabus Point 1, Hinkle v. Bauer Lumber & Home

Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975).’ Syl. Pt. 1, Hanson v. Bd. of Educ.

of the Cnty. of Mineral, 198 W.Va. 6, 479 S.E.2d 305 (1996).” Syl. Pt. 5, State ex rel. Dale

v. Stucky, 232 W. Va. 299, 752 S.E.2d 330 (2013).

8. “‘A statutory provision which is clear and unambiguous and plainly expresses

the legislative intent will not be interpreted by the courts but will be given full force and

effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 6, State

ex rel. Biafore v. Tomblin, 236 W. Va. 528, 782 S.E.2d 223 (2016).

9. A circuit court, having once accepted jurisdiction of an action for divorce

pursuant to West Virginia Code § 51-2A-2(b) (Supp. 2020), is not divested of jurisdiction

where one or both parties subsequently seek to contest the divorce and/or the property

settlement agreement.

iii
 10. “Circuit courts are courts of general jurisdiction and have power to

determine all controversies that can possibly be made the subject of civil actions.” Syl. Pt.

3, State ex rel. Silver v. Wilkes, 213 W. Va. 692, 584 S.E.2d 548 (2003).

11. “Pursuant to Article VIII, Sections 6 and 16 of the West Virginia

Constitution, W.Va. Code § 51–2–2 (1978), and the Family Court statutes, W.Va. Code §§

51–2A–1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to

circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and

the original jurisdiction of the circuit courts in this State.” Syl. Pt. 4, State ex rel. Silver v.

Wilkes, 213 W. Va. 692, 584 S.E.2d 548 (2003).

12. Where a circuit court has accepted jurisdiction of a divorce case pursuant

to West Virginia Code § 51-2A-2(b) (Supp. 2020) and one or both parties subsequently

seek to contest the divorce and/or the property settlement agreement, the court may vacate

any prior orders and dismiss the action from its docket; proceed to take testimony and/or

evidence necessary to resolve the contested issues; or transfer the case to the family court

for resolution of the contested issues. Which of these remedies is elected by the court is a

matter within its sound discretion, based on the facts and circumstances of the particular

case, and the court’s decision will not be disturbed on appeal other than on a finding of

abuse of discretion.

iv
WOOTON, Justice:

The parties to the underlying divorce proceeding, J. William St Clair

(“Husband”) and Molly M. P. St Clair (“Wife”) 1 were married on January 5, 2012,

separated on August 6, 2018, and filed for divorce on September 7, 2018. Together with

Husband’s petition for divorce and Wife’s answer, the parties submitted a signed property

settlement agreement and financial statements that were less than skeletal, both containing

a written notation that the parties waived the requirement of full financial disclosures. All

of these documents were drafted and filed by Husband, an attorney. Because there were no

parenting issues 2 and there was a written property settlement agreement signed by both

parties, Husband filed the case in the Circuit Court of Cabell County pursuant to West

Virginia Code § 51-2A-2(b) (Supp. 2020), which gives concurrent jurisdiction to circuit

courts and family courts under these circumstances. On October 1, 2018, without holding

a hearing and without giving notice to Wife, the court entered a final divorce order, which

had also been drafted and tendered to the court by Husband.

Exactly one year later, on October 1, 2019, Wife filed a Motion to Vacate and

Set Aside Final Divorce Order pursuant to Rule 60(b) of the West Virginia Rules of Civil

In the order of divorce entered on October 1, 2018, Wife was “restored to her
1

maiden name of Prudenti.” However, all pleadings in this case continue to identify her as
Molly M. P. St Clair.
2
The parties have no children together.
1
Procedure. The circuit court held a hearing on the motion on April 20, 2020, 3 and thereafter

entered an order on June 12, 2020, granting the motion to vacate in part and transferring

the case to family court for resolution of all issues of support and equitable distribution.

On June 30, 2020, Husband filed the instant Petition for Writ of Prohibition, challenging

both the court’s ruling on the motion to vacate and its authority to transfer the case to family

court. On September 3, 2020, following review of the parties’ briefs and appendix

records, 4 this Court issued a rule to show cause. We now deny Husband’s Petition for Writ

of Prohibition for the reasons set forth in this opinion.

I. Facts and Procedural Background

The parties were married on January 5, 2012, in Ohio, and shortly thereafter

moved to Huntington, West Virginia. During the marriage, Husband earned a living first

as a Methodist minister and then as an attorney working for Legal Aid. Significantly, for

purposes of this petition for extraordinary relief, Husband also had an interest in several

real estate companies, BLT Realty, Wahoowa, and SUVAC, that he claims were derived

from or exchanged for his shares in Huntington Realty Corporation, a family-owned

business. These interests allegedly generated more than five million dollars in income to

Husband during the couple’s six-year marriage, although he claims that this income was

3
Pursuant to this Court’s Judicial Emergency Declared, Amended Order, entered
April 13, 2020, as a result of the Covid-19 pandemic, the hearing was held remotely.
4
The parties filed separate appendix records.
2
not marital property. See text infra. Wife was a homemaker, having given up her career

as a university counselor when she married Husband and moved from Ohio to West

Virginia with him. 5 Wife claims that she knew almost nothing about the couple’s finances

and that Husband “kept me ‘out of the loop’ substantially on any decisions regarding

management of our finances.”

At the time Husband and Wife separated, they began discussions as to

division of the marital assets. In their respective pleadings the parties give starkly different

accounts of this process, with Husband characterizing the interactions as a “negotiation”

while Wife characterizes it as a time during which Husband bullied and exerted ceaseless

pressure on her, telling her that “if I didn’t go along with his proposed separation agreement

I needed to remember . . . what [Husband] did to [a previous wife]. She didn’t get

anything.” Wife claims that during this entire period and up until the moment she

discovered that the divorce had already been granted, she sent numerous and lengthy emails

to Husband pleading for time to “salvage[] our marriage.” In this regard, the appendix

record submitted by Wife, see supra note 4, contains copies of numerous emails exchanged

between the parties from August 14, 2018, to October 1, 2018. Suffice it to say that these

documents provide ample support for the circuit court’s ultimate conclusion, long after the

fact, that “[Wife] did not want to divorce.”

Wife stated in an affidavit that Husband “encouraged me not to work, saying that
5

he wanted me, as he put it, ‘to go and do and be.’”
3
 What is not disputed, however, is that despite her desire to reconcile, Wife

signed all of the documents prepared by Husband, including the property settlement

agreement. As part of the settlement, Husband agreed to pay Wife the sum of $205,000.00,

which he represented to be far in excess of that to which she was statutorily entitled; 6

further, it was agreed that Wife would retain a 2014 Ford F-150 truck, a joint Wesbanco

checking account, and certain household goods, specifically, “the baby grand piano, the

butcher block and other items which she acquired prior to marriage.” Husband retained

the marital residence, a 2016 Mini Cooper, a 1983 Citroen 2CV, a 1967 Ford Ranchero,

his 401 accounts with the United Methodist Church and TIAA CREF, his whole life

insurance policy, and certain household goods including “the three Alvar prints.” The

parties also agreed that each would retain “as their sole and separate property,” the

following:

[Husband] shall retain as his sole and separate property his
shares of stock in BLT Realty, Inc., Wahoowa, Inc., SUVAC,
Inc., his membership interest in BLT Clearwater, LLC, his IRA
and other account with Vanguard, the children’s trust with
Raymond James, the 2018 Buick Regal, and his bank accounts
with Wells Fargo and Wesbanco[.]

[Wife] shall retain as her sole and separate property her
accounts with USAA and a vehicle which [Husband] intends
to buy at auction, such as a Subaru Outback (which [Husband]
will pay for with his separate property).

6
It appears to be undisputed that Husband valued the marital estate at approximately
$176,104.00; what is hotly disputed is whether that was true.
4
Significantly, none of these assets – marital or separate – were enumerated, valued, or even

mentioned in the parties’ financial disclosures, which contained nothing but their names,

addresses, birth dates, ages, and phone numbers, followed by the handwritten notation that

“[b]oth parties waive formal disclosure of assets and liabilities per separation agreement.”7

Husband does not dispute that he inserted the handwritten notation on Wife’s disclosure as

well as his own.

Husband filed the divorce papers – Petition, Husband’s financial disclosure,

Answer, and Wife’s financial disclosure – on September 7, 2018. Of note, the Answer

contained language “accept[ing] service of the Petition, [and] waiving formal service of

process of the pleading[,]” and thus Wife did not receive formal notice of the institution of

the divorce proceeding. Thereafter, on October 1, 2018, the circuit court entered its final

order, which was prepared by Husband but signed by both Husband and Wife below the

following text: “By signing below, both parties acknowledge they have read and

7
In his supplemental disclosures filed during the course of the Rule 60(b)
proceedings, see text infra, the only information Husband provided about the four business
entities was the assertion that they “are not marketable, with all shares and units being
subject to shareholder/membership agreements[,]” and that “[t]he forced redemption value
of [Husband’s] interest in all four businesses is $170,000.00.” The Vanguard IRA and/or
account was valued at $1,298,460.00, the children’s trust at $187,050.00, the Buick Regal
at $30,000.00, the Wells Fargo account at $20,000.00, and the Wesbanco account at
$24,900.00. Husband also provided two pages of his 2018 income tax return that showed
a significant gross income; however, approximately 90% of that income was from an
unknown source (presumably explained on one or more of the missing pages).

5
understand the terms, import and effect of the foregoing Order. They agree that the Order

accurately reflects their agreements. They ask the Court to enter the Order.”

Exactly one year later, on October 1, 2019, Wife filed her Motion to Vacate

and Set Aside Final Divorce Order, alleging the following facts, among others: 8 that at the

time of the parties’ separation, she was emotionally and mentally unstable; that Husband,

an attorney, prepared her Answer and Financial Statement, and her sole input into the

process was to sign the documents; that Husband also prepared and submitted the final

divorce order, again without input from Wife or any explanation as to the document’s

import; that although Wife signed the settlement agreement and had some participation in

modifying its terms, she did not know the extent and value of the parties’ marital property,

having not had access to joint tax returns from 2012-2016 and having been refused access

to the 2017 return; that Wife had only recently, through newly retained counsel, obtained

limited information concerning the potential value of the marital estate; that contrary to

Husband’s assertions, some of Husband’s business assets were acquired during the

marriage; that when Wife attempted to question the fairness of the agreement or the value

of the marital estate, Husband stated, “Do you remember what I did to [a former wife]

when she fought me? She didn’t get anything[,]” after which Husband said that if Wife

8
In light of the circuit court’s conclusions of law that Wife failed to establish fraud,
coercion, duress, or lack of capacity, which conclusions have not been made the subject of
a cross-appeal, we will not belabor the facts alleged in support of those particular
allegations.
6
didn’t sign the separation agreement by August 30, 2018, he would withdraw the offer; that

throughout the period of time between the parties’ separation and the entry of the divorce

order, Wife sent Husband a number of emails indicating that she did not want a divorce;

that Husband’s responses were couched in such a way as to make Wife believe that a

reconciliation was indeed possible; that during this entire period in which emails were

being exchanged, Wife was unaware that Husband had actually gone ahead and filed the

divorce papers in circuit court; that Wife was unaware for several weeks the court had

entered a final divorce order on October 1, 2018, without a hearing and without any notice

to her; and that during a phone conversation on October 13, 2018, Wife asked Husband

whether he had filed the divorce papers, to which he responded, “what are you talking

about, Molly? We’re divorced.”

On April 20, 2020, following receipt and review of the parties’ respective

pleadings, affidavits, and other information including pages of emails from the relevant

time period, the circuit court held a hearing on the Rule 60(b) motion. Thereafter, on June

12, 2020, the court issued its order granting the motion in part and transferring the case to

family court. The court held that Wife failed to prove she lacked capacity to enter into the

settlement agreement or to waive her rights to certain property; that she failed to prove she

executed the settlement agreement under duress; and that she failed to prove she was

prevented from obtaining financial information after the divorce had been entered. The

court did not address the other issues raised by Wife as grounds for vacating that part of its

7
order relating to the division of the parties’ property: that the settlement agreement was

procured by fraud, misrepresentation, or other misconduct on the part of Husband; that

neither fully disclosed their assets and liabilities as required by West Virginia Code § 48-

7-201; 9 and that the final divorce order was entered without a hearing. Nonetheless, the

court found that Wife was entitled to the relief she sought on the ground that:

When [Husband] filed the Petition, Separation
Agreement, and Answer, and while these documents were
pending for consideration before the Court, [Husband] believed
that, because [Wife] had executed the divorce documents, and
despite her desire to reconcile, [Wife] still ultimately agreed to
divorce as long as it was pursuant to the terms in the Separation
Agreement.

[Husband] either mistook or misunderstood [Wife’s]
intent.

[Wife’s] expressed desire not to proceed with the divorce
implicitly included disavowal of the terms set forth in the
Separation Agreement. Because [Wife] did not want to divorce,
she necessarily did not want to be bound by the Separation
Agreement that dictated this division of the parties’ property
upon divorce.

....

[Wife] effectively withdrew her consent to the
Separation Agreement prior to entry of the Order.

Had the Court been aware [Wife] did not agree to the
divorce and that she had effectively withdrawn her consent to
the Separation Agreement when the proposed divorce order was
presented, the Court would not have entered the Order.

[Wife] is prejudiced by being bound to terms to which
she did not agree at the time the Order was entered.

9
See text infra.
8
 When it appears from the evidence presented that an
order entered as a result of a misunderstanding or mistaken
belief operates to unfairly prejudice a party, justifiable cause
exists to set the order aside under Rule 60(b)(6). Cf. Kelly, 155
W. Va. at 773, 187 S.E.2d at 626. 10

In this case, for justice to be accomplished, the portion of
the Court’s Order approving and adopting the Separation
Agreement must be vacated. 11

(Footnotes added.)

Having concluded that the settlement agreement was a “nullity,” and that

determination of a fair division of property required the parties to make full disclosures of

their respective assets and liabilities pursuant to West Virginia Code §§ 48-7-202, 203

(2015), 12 the circuit court found that “[g]iven these unique facts and circumstances, the

case should be heard and considered by the Family Court . . . which is best equipped to

determine the equitable distribution of property and spousal support.” Accordingly, the

court transferred the case to family court.

10
Kelly v. Belcher, 155 W. Va. 757, 187 S.E.2d 617 (1972).
11
In its order, the circuit court specifically ruled against Husband’s claims that the
doctrine of judicial estoppel precluded Wife from making arguments contrary to the
assertions contained in the pleadings. Husband has not filed an assignment of error
contesting this ruling, and we therefore do not address it.
12
See text infra.
9
 On June 17, 2020, five days after entry of the circuit court’s order, respondent

Family Court Judge Jara L. Howard wrote to the parties’ counsel, directing them to

participate in a final settlement conference prior to which they would verify that they had

“negotiated in good faith toward final settlement of the issues in dispute in the above

entitled action.” On June 30, 2020, Husband filed his petition for a writ of prohibition,

II. Standard of Review

This case is before us on a petition for extraordinary relief. We have long held

that “[p]rohibition lies only to restrain inferior courts from proceeding in causes over which

they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their

legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.”

Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953). Where, as here, we

are faced with a challenge to the circuit court’s alleged abuse of its legitimate powers in

vacating part of a judgment pursuant to Rule 60(b)(6) of the West Virginia Rules of Civil

Procedure, we have further explained that,

In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or

10
 substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

With respect to Husband’s intertwined claims that the circuit court had no

authority to transfer this case to family court for further proceedings and that the family

court had no authority to accept it, we have held that “[w]here the issue on appeal from the

circuit court is clearly a question of law or involving an interpretation of a statute, we apply

a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138,

459 S.E.2d 415 (1995).

III. Discussion

Initially, we must determine whether Husband is entitled to extraordinary

relief in this case, which presents a unique procedural posture. It is beyond serious dispute

that the threshold issue presented here, whether the circuit court’s grant of relief pursuant

to Rule 60(b)(6) should be reversed, is seldom if ever a matter this Court will review on a

writ of prohibition. See, e.g., State ex rel. First State Bank v. Hustead, 237 W. Va. 219,

224, 786 S.E.3d 479, 484 (2015) (“we are not surprised that the Bank does not cite a single

case wherein we granted extraordinary relief to prevent a circuit court from enforcing its

11
order on a Rule 60(b)(6) motion.”). This is because “[a] motion to vacate a judgment made

pursuant to Rule 60(b), W. Va. R.C.P., is addressed to the sound discretion of the court[,]”

Syl. Pt. 5, in part, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974), and “‘[a] writ

of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will

only issue where a trial court has no jurisdiction or having such jurisdiction exceeds its

legitimate powers. W. Va. Code 53-1-1.’ Syl. Pt. 2, State ex rel. Peacher v. Sencindiver,

160 W. Va. 314, 233 S.E.2d 425 (1977).” Syl. Pt. 1, State ex rel. Ferrell v. McGraw, 243

W. Va. 76, 842 S.E.2d 445 (2020). In an attempt to circumvent this well-established

principle, Husband argues that the court’s grant of Rule 60(b)(6) relief in this case was so

far beyond the limits of the court’s discretion that it falls within factors three and five of

the Hoover test: “whether the lower tribunal’s order is clearly erroneous as a matter of

law,” and “whether the lower tribunal’s order raises new and important problems or issues

of law of first impression.” Hoover, 199 W. Va. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4.

It is clear, however, that the secondary issues presented in Husband’s petition,

whether the circuit court had either statutory or inherent authority to transfer the case to

family court and whether the family court had jurisdiction to accept the transfer, fall

squarely within the rubric of Hoover because “it is claimed that the lower tribunal exceeded

its legitimate powers[.]” 199 W. Va. at 13-14, 483 S.E.2d at 13-14, Syl. Pt. 4

12
 Notwithstanding that Husband’s multi-pronged attack on the circuit court’s

grant of Rule 60(b)(6) relief can fairly be characterized as an attempt to fit a square peg

into a round hole – the round hole of entitlement to extraordinary relief – we find that the

issue of the court’s authority to transfer the case is ultimately immaterial if it is determined

that its basis for doing so in the first instance was a clearly erroneous ruling on Wife’s

motion to vacate the divorce order. Accordingly, we will address the Rule 60(b) issue at

the outset.

Circuit Court’s Grant of Rule 60(b) Motion

As we consider the circuit court’s grant of Rule 60(b) relief and the Husband’s

challenges thereto, it will be recalled that Rule 60(b) “is to be liberally construed for the

purpose of accomplishing justice and that it was designed to facilitate the desirable legal

objective that cases are to be decided on the merits.” Syl. Pt. 2, in part, Fernandez v.

Fernandez, 218 W. Va. 340, 624 S.E.2d 777 (2005); see also Jordache Enterprises, Inc. v.

Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W. Va. 465, 472, 513 S.E.2d 692, 699

(1998) (citing Syl. Pt. 6, in part, Toler, 157 W. Va. at 778, 204 S.E.2d at 86); Cruciotti v.

McNeel, 183 W. Va. 424, 430, 396 S.E.2d 191,197 (1990) (citing Kelly, 155 W. Va. at 773,

187 S.E.2d at 626).

Husband’s first challenge to the circuit court’s ruling is his claim that the court

erred in granting a Rule 60(b) motion without addressing whether it had been filed within

13
a reasonable amount of time. In this regard, it is well-established in our precedents that

“[a] movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of Civil

Procedure must show that the judgment sought to be vacated is void and that the motion to

vacate the judgment was filed within a reasonable period of time.” Syl. Pt. 5, Leslie Equip.

Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009); see also Tudor's

Biscuit World of Am. v. Critchley, 229 W. Va. 396, 398, 729 S.E.2d 231, 233 (2012). Our

precedents counsel that this timeliness analysis should be undertaken before any

substantive analysis:

[w]hen a court undertakes to analyze a Rule 60(b) motion
based on grounds (1), (2), (3), or (6) of the Rule, it must
determine first if the motion has been filed within [one year] 13
after the judgment was entered and then determine, under all
the circumstances, if it was filed within a reasonable time.

Syl. Pt. 3, in part, Delapp v. Delapp, 213 W. Va. 757, 584 S.E.3d 899 (2003) (citing Syl.

Pt. 2, Savas v. Savas, 181 W.Va. 316, 382 S.E.2d 510 (1989)) (footnote added); see also

White v. Berryman, 187 W. Va. 323, 331-33, 418 S.E.2d 917, 925-27 (1992) (eight-month

delay in filing motion to vacate default judgment was not reasonable where attorney was

aware of the judgment almost immediately after its entry); Corathers v. Facemire, 185 W.

Va. 78, 80, 404 S.E.2d 769, 771 (1991) (twenty-eight year delay in filing motion was not

reasonable under any circumstances).

13
In Delapp, the Court quoted the Savas syllabus point but amended it to reflect that
since the time Savas was decided, the time limit for a Rule 60(b) motion had been changed
from eight months to one year.
14
 However, this Court has never held that the absence of an explicit timeliness

analysis by the circuit court mandates reversal, particularly where, as here, the factual

findings contained in the court’s order clearly evidence its belief that the Wife’s Rule 60(b)

motion was filed within a reasonable period of time. In addition, although several older

federal cases have suggested that the one-year time limit contained in Rule 60(b) of the

Federal Rules of Civil Procedure is an “extreme limit,” this Court has never so held. See

Patricia H. v. Gregory M., No. 15-0461, 2016 WL 3141574, at *3-4 (W. Va. June 3, 2016)

(memorandum decision) (where husband had failed to disclose the pendency of a class

action back pay claim, family court did not abuse its discretion in re-opening divorce decree

entered seven years earlier in order to permit wife to challenge the equitable distribution

award). More importantly, however, as noted by the circuit court, Rule 60(b) sets a specific

time limit, one year, only on motions brought pursuant to subsections (1), (2), and (3),

whereas Wife’s motion was decided under subsection (6), which contains no time limit. 14

Additionally, as set forth in her motion, and apparent on the face of the record,

Wife was at a serious disadvantage from the onset of the divorce proceedings to their

conclusion, and beyond, inasmuch as Husband, a lawyer, drafted and filed all of the

14
Subsection (1) applies to mistake, inadvertence, surprise, excusable neglect, or
unavoidable cause; subsection (2) applies to newly discovered evidence; and subsection
(3) applies to fraud, misrepresentation, or other misconduct of an adverse party. Subsection
(6), upon which the court relied in this case, is a catchall provision that applies “to any
other reason justifying relief from the operation of the judgment.” W. Va. R. Civ. P. 60(b).
15
documents, 15 picked the forum, 16 and did not even notify Wife when the divorce was filed

or granted. In contrast, Wife, who did not work outside the home during the marriage, was

a self-represented litigant who clearly did not want to divorce and believed that Husband

was open to the possibility of reconciliation. Further, Wife alleges that she had no idea of

the extent of the parties’ marital estate, having never had access to tax returns or other

information related to Husband’s business interests; in fact, when she asked to see the

parties’ 2017 tax return, Husband specifically refused her request. Only after securing

counsel did Wife gain access to any information that would have put her on notice that

Husband had possibly misrepresented the size of the marital estate. Finally, Husband

remarried on May 24, 2019, which would necessarily have an impact on counsels’

determination of how best to proceed in securing relief for their client – and would

necessarily have an impact on the time it took to prepare appropriate pleadings.

Taking all of these factors into account, we have no difficulty in concluding

that Wife’s challenge to the monetary provisions of the settlement agreement, brought

pursuant to Rule 60(b) and based on Husband’s failure to file financial disclosures which

would have, at the least, required further inquiry on the part of the court, was timely. We

15
This Court has held that “[r]egardless of how simple, amicable, and uncontested
the divorce may be, the preparation of documents for the opposing party raises the
possibility of prejudice and presents the appearance of impropriety.” Walden v. Hoke, 189
W. Va. 222, 228, 429 S.E.2d 504, 510 (1993).
16
According to Wife, Husband specifically chose to file in circuit court rather than
family court “because circuit judges will sign off.”
16
note that this conclusion is consistent with West Virginia Code § 48-7-206(2) (2015),

which provides that,

If any party deliberately or negligently fails to disclose
information which is required by this part 2 and in consequence
thereof any asset or assets with a fair market value of five
hundred dollars or more is omitted from the final distribution
of property, the party aggrieved by the nondisclosure may at
any time petition a court of competent jurisdiction to declare
the creation of a constructive trust as to all undisclosed assets,
for the benefit of the parties and their minor or dependent
children, if any, with the party in whose name the assets are
held declared the constructive trustee, such trust to include
such terms and conditions as the court may determine. The
court shall impose the trust upon a finding of a failure to
disclose such assets as required under this part 2.

(Emphasis added.)

Husband’s second timeliness argument is that by filing a Rule 60(b) motion,

Wife was attempting to disavow a contract – the settlement agreement – and that our

precedents require such action to be taken within a reasonable time, based on all attendant

facts and circumstances. We may dispose of this argument without extended discussion.

First, Wife did not file an action seeking relief from the terms of a contract; rather, she filed

a Rule 60(b) motion seeking to vacate and set aside a divorce order on the ground, inter

alia, that it had been entered without notice and without a hearing, both mandated by law.

See text infra. Second, the two century-old cases upon which Husband relies, Hobbs v.

Hinton Foundry, Mach. & Plumbing Co., 74 W. Va. 443, 82 S.E. 267 (1914) and Adams

v. Adams, 82 W.Va. 244, 95 S.E. 859 (1918), are wholly inapposite, as both deal with the

time limits for disaffirmance of a contract into which an individual entered when he or she

17
was a minor. Further, Hobbs cuts against Husband’s argument that Wife’s retention and

beneficial use of the equitable distribution precludes her right to seek relief; in syllabus

point 7 of that opinion, the Court held that

[t]he retention, for three months after full age, of possession of
property purchased by an infant, his enjoyment of the
beneficial use thereof, payment of part of the consideration
therefor, and his offer for sale of part thereof do not preclude
right to disaffirm or authorize the inference of an intention to
ratify.

Hobbs, 74 W. Va. at 444, 82 S.E. at 268. In Adams, the Court held that a son who, while

still a minor, entered into a contract giving up his right to inherit from his father because

his inheritance had been advanced during the father’s lifetime, could not disaffirm the

contract after his father’s death, which occurred seven years after the son reached the age

of majority. Adams, 82 W. Va. at 245, 95 S.E. at 860. Here, in contrast, the time which

elapsed between Wife’s discovery of information concerning Husband’s financial interests

and her filing for Rule 60(b) relief is measured in months, not in years.

In this latter regard, in attempting to characterize the time lapse prior to Wife’s

filing as unreasonable, Husband claims that she deliberately delayed filing the motion until

after she had received the balance of the agreed-upon $205,000.00 equitable distribution. 17

This argument presupposes that Wife had information concerning Husband’s business

For approximately three months prior to early December, 2018, at which time
17

Wife vacated the marital home and executed a deed, Husband charged her rent to live in
the home, deducting these sums from the equitable distribution.
18
interests prior to early December, 2018, when she vacated the marital home and received

the money, yet there is not a scintilla of evidence in the record to support even an inference

that this was the case. To the contrary, Wife avers in her Motion to Vacate and Set Aside

Final Divorce Order that she, “through the undersigned counsel, only recently obtained

limited information regarding the potential value of the marital estate.” (Emphasis in

original). Further, in her Affidavit she explained that when she learned that not only had

the divorce papers been filed but that the divorce had been granted, she “was neither

emotionally nor financially able to challenge [Husband’s] decision to pursue the divorce

or his refusal to disclose our finances.”

The remainder of Husband’s attempt to frame this case as a contract dispute

is skeletal at best and incomprehensible at worst. 18 The fact is that no amount of judicial

legerdemain can transform Wife’s Rule 60(b) motion into an action for breach of contract.

Additionally, Husband’s effort to argue that Wife’s alleged “anticipatory breach” was

untimely has no more evidentiary support than his parallel claim that her Rule 60(b) motion

was untimely.

18
Husband asserts that Wife’s filing of a Rule 60(b) motion was “along the lines of
an anticipatory breach . . . which does not render the Agreement a nullity.” In support of
this assertion, Husband cites Puckett v. United States, 556 U.S. 129 (2009), where the
Supreme Court of the United States held that although the Government’s failure to honor
one term of a defendant’s plea agreement did not render the agreement a nullity, “the
defendant is entitled to seek a remedy, which might in some cases be rescission of the
agreement[.]” Id. at 137. It is difficult to discern why Husband considers this case to be
helpful to his position.
19
 Husband’s third challenge is that the circuit court erred in vacating a portion

of the divorce order without requiring Wife “to return the benefits of the Agreement after

the set aside.” Again, this alleged error requires little discussion. Husband cites not one

case in support of such a requirement, relying instead on the argument that “[a]llowing

[Wife] to retain the entire benefit of the Agreement and order, while also having an

opportunity to request more from [Husband], is not a legal equitable result under the

circumstances.” The fatal flaw in this argument is that it ignores the anticipated legal

proceedings contemplated by the circuit court: whether it is determined that Husband’s

undisclosed income was his separate property, as he claims, or that some or all of it was

marital property, as Wife claims, all issues of equitable distribution and spousal support

will be determined de novo by the family court, thus resolving all issues of who-owes-

whom. Given the parties’ respective financial positions, insofar as this this may be inferred

from the tax returns and affidavits contained in the appendix record, it is not at all

inequitable to maintain the status quo in the meantime.

Husband’s final argument relating to the Rule 60(b) motion is that the circuit

court erred in granting only partial relief, i.e., in reversing only that portion of the divorce

order which confirmed the terms of the parties’ settlement agreement but leaving the

divorce decree intact. This is a curious argument for Husband to make, in that such an

action by the circuit court, had it been taken, would necessarily have had two results: first,

20
it would have made Husband’s current marriage voidable 19 and exposed him to a possible

charge of bigamy, Harvey v. Harvey, 171 W. Va. 237, 242, 298 S.E.2d 467, 472 (1982);

and second, it would have required the circuit court to dismiss the divorce action 20 and

leave the parties to refile it in family court, which is exactly the result that Husband seeks

to prohibit. In any event, it is clear from the text of Rule 60(b) that the court’s discretion

is broad, and that “upon such terms as are just, the court may relieve a party or a party’s

legal representative from a final judgment, order, or proceeding[.]” (Emphasis added). It

cannot be gainsaid that here, in light of Husband’s remarriage, the court’s decision was not

only just but positively Solomonic: the court granted Wife the only relief that was feasible

under the circumstances -- a determination of spousal support and equitable distribution

based on full financial disclosures -- since Husband’s remarriage had most assuredly ended

any possibility of reconciliation between the parties, and vacating the divorce decree would

have caused serious harm to an innocent third party. In short, in light of all the facts and

circumstances presented in this case, we conclude that the circuit court’s vacation of only

one part of its order was wholly consistent with the overriding purpose of Rule 60(b), which

“must be carefully interpreted to preserve the delicate balance between the sanctity of final

judgments, expressed in the doctrine of res judicata, and the incessant command of the

19
See W. Va. Code § 48-3-103(1) (2015).
20
See text infra, discussing W. Va. Code § 51-2A-2(b).
21
court's conscience that justice be done in light of all the facts.” N.C. v. W.R.C., 173 W. Va.

434, 437, 317 S.E.2d 793, 796 (1984).

Notwithstanding our rejection of Husband’s specific challenges concerning

the circuit court’s grant of Rule 60(b) relief, we acknowledge that the basis for the court’s

ruling is less than persuasive: that “[Wife’s] expressed desire not to proceed with the

divorce implicitly included disavowal of the terms set forth in the Separation Agreement.

Because [Wife] did not want to divorce, she necessarily did not want to be bound by the

Separation Agreement that dictated the division of the parties’ property upon divorce.”

However, it is long-established in our precedents that “[t]his Court may, on appeal, affirm

the judgment of the lower court when it appears that such judgment is correct on any legal

ground disclosed by the record, regardless of the ground, reason or theory assigned by the

lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246,

140 S.E.2d 466 (1965); see also Noland v. Va. Ins. Reciprocal, 224 W. Va. 372, 382, 686

S.E.2d 23, 33 (2009) (“In reviewing an appeal of a circuit court's order, we look not to the

correctness of the legal ground upon which the circuit court based its order, but rather, to

whether the order itself is correct, and we will uphold the judgment if there is another valid

legal ground to sustain it.”) (citing Yourtee v. Hubbard, 196 W. Va. 683, 690 n.9, 474

S.E.2d 613, 620 n.9 (1996)). Thus, whether or not it logically follows that Wife’s desire

to halt the divorce proceedings is evidence that she no longer agreed to the terms of the

22
settlement agreement, we find that there are four indisputable facts in this case that, taken

together, demonstrate beyond doubt that Husband is not entitled to extraordinary relief.

First, the parties did not exchange any financial information, in violation of

the unequivocal mandate set forth in syllabus point one of Preece v. Preece, 195 W. Va.

460, 465 S.E.2d 9097 (1995):

“‘W. Va. Code, 48-2-33 [1984], 21 requires a full disclosure of
one spouse’s financial assets to the other spouse at the time of
divorce, and contemplates a meaningful hearing on the subject
of equitable distribution of property at which the spouse
submitting financial data may be cross-examined concerning
the nature, origin and amount of assets.’ Syllabus point 1,
Hamstead v. Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987),
overruled on other grounds, Roig v. Roig, 178 W. Va. 781, 364
S.E.2d 794 (1987).” Syl. Pt. 2, Metzner v. Metzner, 191 W.
Va. 378, 446 S.E.2d 165 (1994).

(Footnote added); see also Syllabus, Buckler v. Buckler, 195 W. Va. 705, 466 S.E.2d 556

(1995), and Syl. Pt. 2, Mitchell v Mitchell, 205 W. Va. 203, 517 S.E.2d 300 (1999). Further,

the existence of a settlement agreement does not excuse the parties from this statutory

obligation because only upon full disclosure of financial information can the circuit court

21
Pursuant to Acts 2001, 5th Ex. Sess., c. 5, effective September 19, 2001, this
statutory provision is now contained in West Virginia Code § 48-7-201 (2015), which
provides in relevant part that “in all divorce actions and in any other action involving child
support, all parties shall fully disclose their assets and liabilities within forty days after the
service of summons or at such earlier time as ordered by the court.” We note that there is
no room for debate as to whether the statute applies only to “divorce actions . . . involving
child support,” as the only issue in Preece was the fairness of the parties’ property
settlement agreement.

23
fulfill its duty “to determine whether the separation agreement was fair and reasonable[.]”

Preece, 195 W. Va. at 465, 465 S.E.2d at 922; see also Buckler, 195 W. Va. at 712, 466

S.E.2d at 563 (“Where no meaningful financial disclosure is made, a determination of the

fairness or reasonableness of a settlement agreement is difficult or impossible.”). In this

regard, the Court in Preece specifically held that such a determination by the court “is

necessary in all divorce cases involving a separation agreement.” Id. at 464, 465 S.E.2d at

921. 22

Second, the circuit court did not hold any hearing, let alone a “meaningful

hearing” within the meaning of Preece, Buckler, and Mitchell, before entering the divorce

decree. Absent a hearing, the court could not fulfill its mandate under West Virginia Code

§ 48-7-102(3) (2015) to determine whether “the agreement, viewed in the context of the

actual contributions of the respective parties to the net value of the marital property of the

parties, is so inequitable as to defeat the purposes of this section, and such agreement was

inequitable at the time the same was executed.” With the clarity of hindsight, the circuit

court tacitly acknowledged that its failure to conduct any inquiry was a mistake: “[h]ad the

In Clay v. Clay, 182 W. Va. 414, 418, 388 S.E.2d 288, 292 (1989), this Court held
22

that in a case where both parties were represented by competent counsel, nothing in the
statutory framework was “intended to force upon a trial court an affirmative duty to
question the wisdom of a spouse's apparent satisfaction with the terms of a property
settlement agreement[.]” We are not called upon to determine whether Clay was limited
by, or even overruled by, Preece, since the instant case involves an agreement signed by a
self-represented litigant.

24
Court been aware [Wife] did not agree to the divorce and that she had effectively

withdrawn her consent to the Separation Agreement when the proposed divorce order was

presented, the Court would not have entered the Order.” With respect to this issue, it is

important to note that although the Wife had waived her right to formal service of the

divorce petition, she never waived her right to a final hearing. Cf. Fernandez, 218 W. Va.

at 345, 624 S.E.2d at 782 (where appellant wife had not been provided written notice of

final divorce hearing, circuit court abused its discretion in denying relief under Rule 60(b)).

Third, this case should have raised a red flag from the moment it was filed.

Husband, the party seeking the divorce and drafting and filing all of the paperwork,

including the paperwork for Wife, was a licensed attorney. Wife, then a forty-five-year-

old woman who had not worked outside the home during the marriage and was not

represented by counsel, was waiving spousal support and agreeing to a distribution of

property without any disclosure of Husband’s assets and liabilities. Thus, although the

circuit court was authorized to accept jurisdiction pursuant to West Virginia Code § 51-

2A-2(b), see text infra, under the facts and circumstances presented here it would have

been prudent – at the least – for the court to make some inquiry to determine that the terms

of the parties’ settlement agreement were equitable and that Wife had freely agreed to those

terms.

Fourth, the amount in controversy here is substantial: Wife claims that

Husband had some five million dollars of undisclosed income during the six years of the

25
parties’ marriage, while Husband claims that any income-producing assets he owns are

separate property and neither the assets nor the income therefrom are subject to equitable

distribution. Although this Court takes no position on these issues, which are not before

us at this interlocutory stage of the proceedings, we concur with the circuit court’s

assessment that they merit full testimonial and evidentiary exploration.

Taking all of these factors into account, we find that the circuit court’s grant

of relief to Wife pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, and

vacation, in part, of its order, was well within the broad ambit of the court’s discretion and

therefore presents no “clear legal error” meriting extraordinary relief. This does not end

our inquiry, however, as Husband contends that the court had no authority to transfer the

case to family court for further proceedings. We turn to that issue.

Circuit Court’s Transfer of Case to Family Court

The circuit court originally accepted jurisdiction of this case pursuant to West

Virginia Code § 51-2A-2(b), which provides:

If an action for divorce, annulment, or separate maintenance
does not require the establishment of a parenting plan or other
allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time

26
 of the filing of the action, the parties also file a written property
settlement agreement executed by both parties. 23

(Footnote added.) However, when the court subsequently concluded that “[e]ffectively, no

controlling written property settlement agreement exists in this case,” it was confronted

with a unique issue: what happens next? The parties suggest several possibilities. The first

is that once the court set aside the settlement agreement, it no longer had jurisdiction under

the statute and was therefore required to vacate its order and dismiss the case from its

docket, which in turn would require the parties to refile the action in family court and begin

anew. The second possibility is that the court’s ruling did not divest it of jurisdiction

because the statute speaks only to the establishment of jurisdiction at the outset based on

the existence of a written settlement “at the time of the filing of the action.” Having been

granted jurisdiction based on the posture of the case at the outset, the court, in continued

exercise of that jurisdiction, was thus authorized to proceed in a manner that would best

serve the ends of justice: to vacate its prior order and dismiss the case; or to vacate only a

portion of its order and conduct further proceedings on the issues of spousal support and

equitable distribution; or to vacate only a portion of its order and transfer the matter to

family court for resolution of the property issues. In this case, the court took the latter

action, which prompted Husband’s filing of a petition for writ of prohibition.

23
Pursuant to Rule 9(a) of the Rules of Practice and Procedure for Family Court, a
circuit court has discretion as to whether to accept jurisdiction of a case filed pursuant to
West Virginia Code § 51-2A-2(b).
27
 We begin by examining the question of whether the court had continuing

jurisdiction in the case after determining that Wife had implicitly withdrawn her assent to

the settlement agreement. Husband argues that the language of the statute is dispositive,

in that the only requirement for a circuit court’s exercise of jurisdiction in a divorce case

is the filing of a written property settlement agreement, signed by both parties, at the time

the action is filed. He further argues that nothing in the statute, and nothing in this Court’s

precedents, suggest that once jurisdiction is accepted by the circuit court, see supra note

23, the court’s rulings in the case can operate to divest it of jurisdiction after the fact.

In contrast, Wife argues that allowing the circuit court to continue exercising

jurisdiction would be to reward Husband for forum-shopping, which she defines as “us[ing]

his superior position as a practicing attorney to ramrod through a divorce Order that

violated clearly established law[.]” Although there is some evidence in the record to

suggest that Husband’s decision to file the case in circuit court was attributable to his belief

that “circuit judges will sign off[,]” this does not alter the fact that the court had jurisdiction

of the matter pursuant to the clear language of the statute. See id. Further, Wife’s argument

fails to take into account that if in fact the court lost jurisdiction the moment this became a

contested case – more than a year after the final divorce order had been granted – then the

only action available to the court was to vacate its entire order and dismiss the case, because

any order issued by a court without subject matter jurisdiction is void and unenforceable.

In this regard, we have held that “‘“[w]henever it is determined that a court has no

28
jurisdiction to entertain the subject matter of a civil action, the forum court must take no

further action in the case other than to dismiss it from the docket.” Syllabus Point 1, Hinkle

v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975).’ Syl.

Pt. 1, Hanson v. Bd. of Educ. of the Cnty. of Mineral, 198 W.Va. 6, 479 S.E.2d 305 (1996).”

Syl. Pt. 5, State ex rel. Dale v. Stucky, 232 W. Va. 299, 752 S.E.2d 330, 332 (2013).

Reviewing the language of the statute and assessing the parties’ respective

arguments, we have little trouble in concluding that a circuit court, having once accepted

jurisdiction of an action for divorce pursuant to West Virginia Code § 51-2A-2(b) (Supp.

2020), is not divested of jurisdiction where one or both parties subsequently seek to contest

the divorce and/or the property settlement agreement. In this regard, we examine the

language of the statute, which gives concurrent jurisdiction to circuit courts and family

courts in divorce or separate maintenance cases which do not require the establishment of

a parenting plan or other allocation of custodial responsibility or decision-making

responsibility for a child; do not require an award or any payment of child support; and in

which “at the time of the filing of the action, the parties also file a written property

settlement agreement executed by both parties.” Id. (emphasis added). This language is

clear and unambiguous, which is both the beginning and the end of this Court’s inquiry

because “‘[a] provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and effect.’

Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 6, State ex rel.

Biafore v. Tomblin, 236 W. Va. 528, 782 S.E.2d 223 (2016). Although it appears evident

29
that the Legislature’s intention was to give parties a choice of forum in uncontested divorce

cases, nothing in the statute or its correlative rule, Rule 9(a) of the Rules of Practice and

Procedure for Family Court, would circumscribe the authority of a circuit court to proceed

as it deems appropriate in the event the case, once accepted, develops in a manner which

requires additional fact-finding and/or contested adjudication.

We therefore turn to the question of whether the circuit court’s choice of

remedy, transfer to the family court for further proceedings, was clear error. Husband

argues that while circuit courts have both original and appellate jurisdiction over family

courts, see Syl. Pt. 3, Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106 (2009) and Syl. Pt.

4, State ex rel. Silver v. Wilkes, 213 W.Va. 692, 584 S.E.2d 548 (2003), they neither

supervise nor control those courts and therefore have no inherent power to transfer cases

to them. Husband also contends that while a circuit court has statutory authority to transfer

a case to another circuit court for good cause shown, West Virginia Code § 56-9-1 (2020), 24

24
West Virginia Code § 56-9-1 (2020) provides that:

A circuit court, or any court of limited jurisdiction established
pursuant to the provisions of section 1, article VIII of the
Constitution of this state, wherein an action, suit, motion or
other civil proceeding is pending, or the judge thereof in
vacation, may on the motion of any party, after ten days’ notice
to the adverse party or his attorney, and for good cause shown,
order such action, suit, motion or other civil proceeding to be
removed, if pending in a circuit court, to any other circuit court,
and if pending in any court of limited jurisdiction hereinbefore
mentioned to the circuit court of that county: Provided, That
30
and authority under Rule 42(b) of the West Virginia Rules of Civil Procedure to order the

transfer and consolidation of related cases pending in circuit court or magistrate court, 25 it

has no authority under any statute or rule to transfer a case to family court. We are

unpersuaded by Husband’s attempt to set an arbitrary boundary on the powers and duties

of a circuit court; to the contrary, we have held that “circuit courts are courts of general

jurisdiction and have power to determine all controversies that can possibly be made the

subject of civil actions.” Silver, 213 W. Va. at 692, 584 S.E.2d at 548, Syl. Pt. 3; see also

Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 756, 591 S.E.2d 308, 314 (2003) (“circuit

courts have original and general jurisdiction and other powers as set forth in Article VIII,

§ 6 of the Constitution of West Virginia.”) Further, and of particular significance,

[p]ursuant to Article VIII, Sections 6 and 16 of the West
Virginia Constitution, W.Va. Code § 51–2–2 (1978), and the
Family Court statutes, W.Va. Code §§ 51–2A–1 to 23 (2001),
family courts are courts of limited jurisdiction and are inferior
to circuit courts. Family courts are, therefore, subject to both
the appellate jurisdiction and the original jurisdiction of the
circuit courts in this State.

the judge of such other circuit court in a case of removal from
one circuit to another may decline to hear said cause, if, in his
opinion, the demands and requirements of his office render it
improper or inconvenient for him to do so.

25
It suffices here to note that the rule “makes no substantial change in preexisting
legal principles relating to consolidation of related suits or actions[,]” Holland v. Joyce,
155 W. Va. 535, 541, 185 S.E.2d 505, 510 (1971), and has nothing to do with family court
cases.

31
Silver, 213 W. Va. at 693, 584 S.E.2d at 549, Syl. Pt. 4.

With these principles in mind, we return to the facts of this case and the

choice of remedies available to the circuit court – a court which had become convinced

that its earlier order “operate[d] to unfairly prejudice a party,” and that “for justice to be

accomplished, the portion of the Court’s Order approving and adopting the Separation

Agreement must be vacated.” Dismissal of the action, thus requiring the parties to file a

new action in family court and begin again, was not a viable option under the unique facts

and circumstances of this case; because Husband had remarried, dismissal of the case

would make his new marriage voidable, possibly expose him to a charge of bigamy, and

cause damage and harm to an innocent third party. Taking evidence and determining

property and support issues in circuit court was a viable option, but one the court reasonably

elected not to exercise in light of its conclusion that “[t]he Family Court is best equipped

to determine the equitable distribution of property and spousal support.” We believe, and

so hold, that where a circuit court has accepted jurisdiction of a divorce case pursuant to

West Virginia Code § 51-2A-2(b) (Supp. 2020) and one or both parties subsequently seek

to contest the divorce and/or the property settlement agreement, the court may vacate any

prior orders and dismiss the action from its docket; proceed to take testimony and/or

evidence necessary to resolve the contested issues; or transfer the case to the family court

for resolution of the contested issues. Which of these remedies is elected by the court is a

matter within its sound discretion, based on the facts and circumstances of the particular

32
case, and the court’s decision will not be disturbed on appeal other than on a finding of

abuse of discretion.

In light of the facts and circumstances presented here, all as set forth in the

circuit court’s factual findings which have not been made the subject of any assignment of

error, we find that the court’s decision to remand the case to family court was well within

its sound discretion and therefore not in excess of its jurisdiction. 26

IV. Conclusion

For the foregoing reasons, the Writ of Prohibition prayed for is denied.

Writ Denied.

26
In light of our resolution of this issue, it is unnecessary to consider Husband’s
claim that the family court had no authority to accept this case on remand.
33