In re The Children of S.U. v. C.J.

FILED
October 13, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS

STATE OF WEST VIRGINIA OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re The Children of:
S.U.,
Petitioner Below, Petitioner

vs.) No. 20-0515 (Mason County 20-D-AP-1)

C.J.,
Respondent Below, Respondent

and

In re The Children of:
S.U.,
Petitioner Below, Petitioner

vs.) No. 20-0516 (Mason County 16-D-233)

C.J.,
Respondent Below, Respondent

and

S.U.,
Petitioner Below, Petitioner

vs.) No. 20-0612 (Mason County 20-D-AP-3)

C.J.,
Respondent Below, Respondent

and

S.U.,
Plaintiff Below, Petitioner

vs.) No. 20-0710 (Mason County 20-D-AP-6)

C.J.,
Defendant Below, Respondent

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 MEMORANDUM DECISION

Self-represented petitioner S.U. 1 appeals four orders from the Circuit Court of Mason
County: an April 9, 2020, order refusing his petition for appeal from the family court; an April 27,
2020, order addressing petitioner’s motion for rulings on his remaining appeals and petitions for
extraordinary writs; a July 21, 2020, order denying petitioner’s second motion for decision on
pending appeals and other issues; and an August 26, 2020, order again refusing petitioner’s appeal
from family court. 2 Respondent C.J. made no appearance before this Court. On appeal, petitioner
raises several arguments in an attempt to obtain sole custody of three of his four children with
respondent, including that the orders originating from family court are unconstitutional and the
family court violated the children’s privacy, among other arguments.

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 circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

This Court has previously issued detailed memorandum decisions concerning the parties’
relationship history and the facts surrounding their four children’s births. See S.U. v. C.J. (“S.U.
I”), No. 18-0566, 2019 WL 5692550 (W. Va. Nov. 4, 2019)(memorandum decision); S.U. v. C.J.
(“S.U. II”), No. 19-1181, 2021 WL 365824 (W. Va. Feb. 2, 2021)(memorandum decision).
Because of the limited arguments on appeal in the matters currently before the Court, it is
unnecessary to belabor these facts. Instead, it is sufficient to stress two important rulings from
these matters. The first is that there was never a valid, enforceable gestational surrogacy agreement
between petitioner and respondent. S.U. I, No. 18-0566, 2019 WL 5692550, at *4 (finding that “all
of [petitioner’s assignments of error] . . . [w]ere grounded on his contention that [respondent] was
nothing more than a gestational surrogate for the parties’ three youngest children” and declining

1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner previously filed a motion with this Court for consolidation of cases 20-0515,
20-0516, and 20-0612. Finding it in the interest of judicial economy, the Court hereby grants that
motion and further determines that case 20-0710 is also appropriate for consolidation along with
the other matters.
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to disturb the family court’s resolution of this issue in respondent’s favor). The second is that
respondent “is the legal mother of all four children.” Id. As has become clear through his repeated
attacks on respondent’s continued exercise of a maternal relationship with, and custody over, the
children, petitioner refuses to accept the validity and finality of these determinations.

As the main issues to address in these appeals relate to the family court’s cessation of
petitioner’s visits with the children and limitations on his ability to file pleadings, it is important
to outline petitioner’s conduct that resulted in these rulings. As early as 2016, the family court
ordered that the parties not harass one another. Despite multiple orders to this effect, by 2017
petitioner first engaged in egregious behavior toward respondent. According to the family court,
when the children’s maternal grandmother passed away, petitioner contacted the local newspaper
and the funeral home handling her arrangements to demand that they remove the minor children’s
names from the maternal grandmother’s obituary. Petitioner told both entities that respondent was
not related to the children and kidnapped them. Both the newspaper and funeral home informed
respondent of the communications they had with petitioner, which caused respondent additional
emotional distress at the time of her mother’s passing. This was the first of many instances where
the family court found petitioner to be in willful and contumacious contempt of a prior order
against harassment and that he had the ability to follow the orders but failed to do so. Based on
this conduct, the family court issued the first of several requirements that petitioner file a cash
bond with the clerk to ensure future compliance with orders. The court also awarded respondent
attorney’s fees in the amount of $1,500.

Following the family court’s entry of the order setting forth custodial responsibility in
February of 2018 that was at issue in S.U. I, petitioner was found to be in contempt of that order
by multiple orders entered in 2018 and 2019. One order reduced petitioner’s telephone contact
with the children to only one day because of his abuse of the telephonic visits. Moving forward,
respondent was required to record petitioner’s telephone calls and immediately terminate a call if
petitioner behaved inappropriately.

In late 2019, the family court held a hearing on the several competing petitions for contempt
from both parties. Based on the evidence, the court found that petitioner “continues to speak to or
about [r]espondent in a derogatory and demeaning manner,” even going so far as to refer to her as
“gestational surrogate” or “kidnapper”; continues to tell the children that respondent is not their
mother and refuses to refer to the two youngest children by their legal names; tells the children
that respondent prevented them from seeing him and that they would soon be coming home after
petitioner’s wife adopted them; and continued calling respondent’s home on Tuesdays and
Thursdays, even though his telephone contact on those nights was terminated, “for purposes of
harassment.” Importantly, the family court also determined that petitioner’s continued behavior
proved that he was “determined to undermine [r]espondent as a parent to the minor children” and
that he “made no meaningful attempt to address or correct his behavior which is likely to cause
irreparable harm to the minor children.” According to the court, “it is clear . . . that [p]etitioner
does not intend in any way to foster the existing parent-child relationship between [r]espondent
and the minor children.” Petitioner also failed to enroll and actively participate in counseling
services as required by prior orders. The court found that it “would be manifestly harmful to the
minor children to continue [p]etitioner’s communication with them until [p]etitioner has actively
and successfully completed counseling services.” As such, the court suspended petitioner’s remote

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visits with the children. In regard to petitioner’s requests for contempt against respondent, the
family court found that petitioner’s allegations were unfounded because respondent only
interrupted or terminated petitioner’s telephone visitation when petitioner was behaving
inappropriately. The family court again found petitioner in contempt, which appears to be
approximately the fifth finding of contempt against him by this point in the proceedings. Finally,
the court found that petitioner’s conduct increased respondent’s costs in the litigation, including
his faxing to respondent’s counsel almost all of petitioner’s pleadings “and countless other
documents,” despite a prior order prohibiting him from doing so. As such, the court awarded
respondent attorney’s fees in the amount of $5,000 and prohibited petitioner from filing self-
represented pleadings. The court again directed that petitioner file certain bonds in order to ensure
his compliance with its orders.

The family court then held a hearing in June of 2020 to address additional allegations of
contempt against petitioner. In addressing these claims, the family court noted not only the prior
prohibition against the parties making derogatory comments about the other in the presence of the
children, but also that the parents were prohibited from referring to two of the children by names
other than those on their birth certificates. Based on the evidence, the family court found that
petitioner violated these directions by e-mailing staff at the Birth to Three program and stating that
respondent was only a gestational surrogate, had kidnapped the children, and that the two youngest
children’s names were names other than their legal names; sending a letter to the principal of the
children’s elementary school that referred to respondent as a gestational surrogate, stating that
petitioner was in the process of terminating her parental rights, and referring to one child by a
name other than his legal name; and filing an emergency petition for modification in December of
2019 referring to the youngest children by incorrect names. According to the family court,
“[p]etitioner testified that he has ‘freedom of speech and rights’ and that it is irrelevant to him if
[r]espondent feels she is being harassed.” The court found that petitioner’s behavior continued to
prove that he was determined to undermine respondent as a parent and harass her by contacting
and making inappropriate statements to school officials and healthcare providers for the children,
as this conduct was ongoing since the inception of the case in 2016. Accordingly, the family court
found that petitioner was in willful and contumacious contempt and had the ability to comply with
the orders but refused. The court then awarded respondent attorney’s fees in the amount of $5,000.
The court also suspended petitioner’s ability to access the children’s medical, education, and
juvenile records pursuant to West Virginia Code § 48-9-601 until such time as he successfully
completed counseling services with a licensed professional to address the issues identified in his
psychological evaluation as harmful to the children, his unwillingness to work with respondent as
a parent, and his tendency to objectify and completely disregard respondent’s bond with and role
as a parent to the minor children. The court also required petitioner to post a bond in the amount
of $2,000 to ensure his future compliance with orders.

At various points in the proceedings, petitioner filed several different petitions for appeal
to the circuit court from the family court’s orders. In his various appeals, petitioner raised issues
such as the family court’s lack of jurisdiction and violations of his constitutional rights, among
other claims. Petitioner also filed several motions in the circuit court seeking decisions on pending
matters. On April 9, 2020, the circuit court issued an order denying one of petitioner’s appeals.
The court then issued an “Order Regarding Remaining Appeals and Petitions for Writ” on April
27, 2020. The order concerned several of petitioner’s outstanding requests, although central to its

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ruling was that it had repeatedly found that the family court did have jurisdiction over the matter.
Because all of petitioner’s grounds were based on an alleged lack of jurisdiction, the circuit court
found that he failed to set forth a viable basis for appeal. Further, the court found that petitioner’s
due process rights were not violated because he was present at the hearing when the family court
ordered him to pay the fine for contempt and set forth the timeframe in which payment was to be
made. In its July 21, 2020, “Order Denying Second Motion for Decision on Pending Appeals;
Denying Motion to Set Hearing on Pending Appeal; and Refusing Petition for Appeal,” the circuit
court concluded that there were simply no further outstanding pleadings that required rulings and
denied petitioner’s motion, in part, as moot. The circuit court further refused petitioner’s pending
petition for appeal. Finally, in its August 26, 2020, order, the circuit court refused petitioner’s final
appeal. It is from the various orders of the circuit court that petitioner appeals.

We have previously set forth the following:

“When this Court reviews challenges to the findings and conclusions of the
circuit court, a two-prong deferential standard of review is applied. We review the
final order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings under a clearly erroneous
standard.” Syl., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507
(1996).

Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015).

Central to all of the matters currently on appeal is petitioner’s assertion that respondent is
a third-party gestational surrogate, a claim that this Court rejected in S.U. I and continues to reject
in petitioner’s subsequent appeals from matters related to his ongoing efforts to divest respondent
of her parental rights to the children. As we discussed in S.U. I, the family court found that no
valid, enforceable gestational surrogacy agreement existed, and we upheld this finding on appeal.
S.U. I, No. 18-0566, 2019 WL 5692550, at *4. Contrary to petitioner’s arguments in that matter
and in all of his subsequent appeals, the record showed that petitioner and respondent were in a
relationship for twelve years and gave birth to four children in that time, albeit by alternative
methods. Id. at *1. In his current appeals, petitioner makes extended arguments that his
constitutional rights have been violated by the family court’s decision to elevate the rights of a
gestational surrogate above the rights of the natural parent. It is unnecessary to address these
arguments, however, because the bedrock upon which they are constructed is fatally flawed.
Petitioner must recognize that respondent is the children’s mother, as we have repeatedly stressed,
and this Court will continue to refuse to entertain any arguments based on his assertion that she is
simply a gestational surrogate, an assertion that lacks an evidentiary basis in any record before this
Court. Having found that the vast majority of petitioner’s arguments on appeal lack merit, we turn
now to the remaining issues that require discussion.

First, petitioner argues that the family court’s alteration of his visitation was in retaliation
for his exercise of his constitutional right to free speech. Again, it is difficult to divorce petitioner’s
arguments on this issue from his erroneous arguments concerning respondent’s maternal status, as
petitioner claims that respondent has no rights regarding his children and that he should be
permitted to tell the children that she is a gestational surrogate and that their names are different

5
from those on their birth certificates. What petitioner fails to recognize, however, is that this Court
has upheld limited regulation of speech in the context of family court proceedings involving
children. As we have explained,

First Amendment freedoms are not absolute; they must be “‘applied in light of the
special characteristics of the [relevant] environment.’” United States v. Brown, 218
F.3d 415, 424 (5th Cir. 2000) (quoting Tinker v. Des Moines Indep. Cty. Sch. Dist.,
393 U.S. 503 (1969)). Thus, even though “‘litigants do not “surrender their First
Amendment rights at the courthouse door,” those rights may be subordinated to
other interests that arise’ in the context of . . . trials.” Brown, 218 F.3d at 424
(quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 n.18 (1984)). Courts have
recognized that our “[f]reedom of speech does not include freedom to convey
messages when, where, and how one chooses. That right must be adjusted to the
rights of others.” Yates v. Commonwealth, 753 S.W.2d 874, 876 (Ky.App.1988)
(citing Breard v. Alexandria, 341 U.S. 622 (1951)). Accordingly, various kinds of
communication are subject to regulation or outright preclusion by governmental
action when they run afoul of established principles of law or policy. Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).

Mark V.H. v. Delores J.M., No. 18-0230, 2019 WL 4257183 at *12 (W. Va. Sept. 9,
2019)(memorandum decision). In Mark V.H., the family court restricted the father’s access to court
records because of his “history of discussing his domestic case on-line” in an effort to “attack [the
mother] and her [new] husband,” which ultimately harmed the parties’ child. In upholding this
order, this Court found that “the family court narrowly tailored its order to protect the parties’
minor child from embarrassment and to protect respondent from harassment and intimidation.” Id.
Because of that, the Court found no violation of the petitioner’s First Amendment rights. Id. (citing
Wedding v. Harmon, 492 S.W.3d 150 (Ky. Ct. App. 2016) (order prohibiting ex-husband from
sending co-parenting e-mails to third parties did not violate ex-husband’s right to free speech); In
re Marriage of Olson, 850 P.2d 527 (Wash. Ct. App. 1993) (prohibiting ex-husband from making
disparaging remarks about ex-wife to children did not violate First Amendment); Schutz v. Schutz,
581 So. 2d 1290 (Fla. 1991) (compelling ex-wife to encourage and nurture the relationship
between the child and the noncustodial ex-husband parent did not violate right to free speech)).

On appeal to this Court, petitioner ignores his most egregious efforts to humiliate, harass,
and embarrass respondent, including his communications with a funeral home and newspaper
following the children’s maternal grandmother’s death in which petitioner claimed respondent
kidnapped the children and he threatened to sue both entities if the children’s names were not
removed from respondent’s mother’s obituary. Further, the family court permitted petitioner to
continue exercising visits with the children if he followed simple conditions. Multiple times
petitioner demonstrated that he could not follow these minimal directions. Based on petitioner’s
conduct, the family court found that he was determined to undermine respondent’s relationship
with the children and that he refused to seek required counseling in order to correct his harmful
behavior. As such, it is clear that the circuit court did not err in imposing limited restrictions on
petitioner’s speech, including requirements that he not accuse respondent of kidnapping or
otherwise undermine her relationship with the children, and did not err in altering his visitation

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with the children when he demonstrated a willful refusal to conform his conduct to the court’s
orders. Therefore, he is entitled to no relief.

Next, petitioner argues that the family court violated his access to the court in order to seek
redress. Specifically, petitioner argues that requiring prepayment and/or the hiring of an attorney
before he files pleadings denies the review of all claims and is “clumsily overinclusive.” According
to petitioner, the family court lacked authority to impose continuing cost requirements on him
because his claims were filed in good faith and in accordance with the direction of the local clerk
and the Rules of Civil Procedure. Upon our review, we find petitioner’s arguments to be without
merit.

We have previously explained that such restrictions can be necessary when litigants
proceed in bad faith:

Free access to courts is a principle predicated on the erroneous assumption that both
litigants in all lawsuits have a good faith dispute. Often this is not the case, and
where it is not, the mischief must be discouraged. Courts are available free of
charge, so they are overused. Their overuse in turn congests the docket, resulting
in justice-defying delays. In a court system burdened, even compromised, by
congestion and delay we need to be particularly sensitive to mischievous overuse
of the courts. Litigation designed simply to impede a party seeking payment of an
obligation, spiteful and vexatious suits—these simply do not belong in court. . . .

Everyone who has a good faith dispute requiring a decision by an impartial arbiter
is entitled to his day in court. On the other hand, every person is not entitled to his
day in court regardless of the frivolous nature of the suit. Parties whose interest in
the legal process is to oppress or cheat others should be discouraged.

Mark V.H., 2019 WL 4257183 at *13 (quoting Nelson v. W. Va. Pub. Emp. Ins. Bd., 171 W. Va.
445, 453-54, 300 S.E.2d 86, 95 (1982)); see also, Mathena v. Haines, 219 W. Va. 417, 422, 633
S.E.2d 771, 776 (2006) (“While access to courts is a recognized fundamental right, it is also a
commonly recognized principle that such right of access is not without limitations.”); State ex rel.
James v. Hun, 201 W. Va. 139, 141, 494 S.E.2d 503, 505 (1997) (The “right of meaningful access
to the courts is not completely unfettered.”).

The Court has also explained that this is the case in many other jurisdictions:

Numerous states have adopted statutes or rules that permit restrictions on litigants
who have been determined to be vexatious—that is, “persons who persistently and
habitually file lawsuits without reasonable grounds, or who otherwise engage in
frivolous conduct in the courts.” Robin Miller, “Validity, Construction, and
Application of State Vexatious Litigant Statutes,” 45 A.L.R.6th 493 (2009). While
this Court has not adopted a vexatious litigant rule, other courts routinely levy
sanctions or fashion remedies to preclude the filing of frivolous and repetitious
proceedings. See, e.g., In re Vey, 520 U.S. 303, 304 (1997) (precluding Supreme
Court Clerk from accepting further in forma pauperis filings “[i]n light of [pro se

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 petitioner’s] history of frivolous, repetitive filings[.]”); Washington v. Alaimo, 934
F. Supp. 1395, 1397 (S.D. Ga. 1996) (pro se litigant’s access to courts could be
limited because he “lacks the ability or will to govern his suits with the civility and
order required by . . . the Federal Rules of Civil Procedure. He has wasted the time
of many an innocent party and he has flippantly used the resources of the judiciary
with his abusive motions filing practice.”); Rudnicki v. McCormack, 210 F. Supp.
905, 909 (D.R.I. 1962) (“I have determined that the time has come when it is
necessary and appropriate that an injunction issue, both for protection of these and
other public officials against unwarranted harassment, and for the protection of the
records of this and other courts against the filing of frivolous and unimportant
papers.”); In re Prefiling Order Declaring Vexatious Litigant, Pursuant to I.C.A.R.
59, 164 Idaho 586, 434 P.3d 190 (2019) (upholding restrictions on litigant who filed
numerous frivolous pro se actions and frivolous pleadings); DeNardo v. Cutler, 167
P.3d 674, 681 (Alaska 2007) (“[T]he courts have the authority to enjoin persons
engaged in the manifest abuse of the judicial process . . . . The courts may take
creative actions to discourage hyperactive litigators so long as some access to courts
is allowed, such as by limiting the amount of filings a litigant may make, and
prescribing conditions precedent to those filings so as to determine the propriety of
a suit on a case by case basis.” (Quoting 42 Am.Jur.2d Injunctions § 191 (electronic
edition, updated May 2006)); Kondrat v. Byron, 63 Ohio App. 3d 495, 496, 579
N.E.2d 287, 287 (1989) (permanently enjoining litigant from filing future pro se
cases without first meeting stringent conditions); Eismann v. Miller, 101 Idaho 692,
697, 619 P.2d 1145, 1150 (1980) (Exercise of the right to access to the courts
“cannot be allowed to rise to the level of abuse, impeding the normal and essential
functioning of the judicial process. To allow one individual, untrained in the law,
to incessantly seek a forum for his views both legal and secular by means of pro se
litigation against virtually every public official or private citizen who disagrees with
him only serves to debilitate the entire system of justice.”); Bd. of Cty. Comm’rs of
Boulder Cty. v. Barday, 197 Colo. 519, 522, 594 P.2d 1057, 1059 (1979) (“[T]he
right of access to courts does not include the right to impede the normal functioning
of judicial processes. Nor does it include the right to abuse judicial processes in
order to harass others.”).

Mark V.H., 2019 WL 4257183 at *14. As outlined above, petitioner continues to file numerous
pleadings against respondent in an attempt to divest her of her parental rights to the children—an
issue that this Court squarely resolved in S.U. I. Moreover, petitioner has demonstrated a willful
refusal to follow the family court’s basic directions and, as a result, has been held in contempt at
least six times. This includes petitioner’s refusal to cease faxing voluminous documents to
respondent’s counsel and other conduct that has unnecessarily increased respondent’s legal fees.
As such, we find no error in the family court placing reasonable restrictions on petitioner’s ability
to file pleadings or other self-represented documents.

Finally, petitioner argues that the family court abused its discretion in unsealing the case
and ordering that it be fully released in the public forum of a circuit court. According to the record,
respondent moved to unseal the record because petitioner filed a cause of action in the Circuit
Court of Harrison County that “includes allegations that involve and/or directly reference records,

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testimony, rulings and evidence entered into the record” in the family court matter. Petitioner
argues that the family court erred in failing to identify specific documents to be unsealed and,
instead, simply stated that the circuit court be permitted to examine and/or copy “the items listed
above.” This argument, however, is entirely without merit. First, petitioner’s argument is one of
semantics that cannot entitle him to relief. Contrary to his assertion that the circuit court did not
list any items, the order is clear that “the items listed above” include “records, testimony, rulings
and evidence.” That this encompasses a broad range of documents only reflects the fact that
petitioner, yet again, raised many of the same issues against respondent in yet another jurisdiction,
thereby necessitating the circuit court’s comprehensive review of the records in the family court
matter. This is in keeping with Rule 6(c) of the West Virginia Rules of Practice and Procedure for
Family Courts, which provides that “[u]pon written motion, for good cause shown, the court may
enter an order permitting a person . . . to examine and/or copy documents in a file.” There is simply
no basis for petitioner’s argument that a circuit court judge ruling on petitioner’s cause of action
that implicates evidence and records from this family court proceeding was precluded from
viewing the entire case file. As such, he is entitled to no relief.

For the foregoing reasons, we find no error in the decision of the circuit court, and its April
9, 2020; April 27, 2020; July 21, 2020; and August 26, 2020, orders are hereby affirmed.

Affirmed.

ISSUED: October 13, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton

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