In the seemingly never ending divorce case of Halburn v. Halburn, Putnam County Circuit Judge Phillip Stowers has made his ruling on the appeal filed by domestic terrorist Mark Halburn. As expected, Halburn lost virtually every point he raised.
He shouldn't pay the second ex-wife what he was ordered to. DENIED
He should get custody because second ex-wife didn't take the psych evaluation. DENIED
He shouldn't have to pay second ex-wife's legal bills. DENIED
He wanted reimbursed $12,000 for "improvements" he says he made on the house, like a swing set. DENIED
Says Kelly didn't include second ex-wife's Mary Kay income. DENIED
Says Kelly was biased against him. DENIED
UPDATE:
Putnam
LIES.com has now obtained a copy of the order.
You can download a full copy
here.
IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA
DH (M),
Petitioner,
v.
MARK HALBURN,
Respondent.
Phillip M. Stowers, Judge
CASE NO. 11-D-516
ORDER REVERSING, IN PART, AND AFFIRMING, IN PART,
FINAL DIVORCE ORDER OF FAMILY COURT
This matter came before the Court on February 20, 2013, pursuant to a Petition for
Appeal filed by the respondent below and petitioner on appeal, Mark Halburn, pro se. Mr.
Halburn appeals the Family Court's Final Divorce Order entered on January 23, 2013. The
Petition for Appeal was timely filed pursuant to West Virginia Code § 5 1-2A-11. The petitioner below and respondent on appeal, Delores Halburn, who has changed her name to DM and will hereinafter be referred to as such, titled a response on March 12,2011 The Court heard oral arguments regarding the appeal from both parties who appeared pro se onApril 17, 2013.1
This Court's review of the Petition for Appeal is made pursuant to West Virginia Code § 51-2A-11.
After reviewing the record, including the recorded hearings held below on October 1, 2012, and October 15, 2012; the January 23, 2013, Final Order of the Family Court; the Petition for Appeal; the accompanying memorandum; Ms. M's response; briefs provided during oral argument on April 17,2013 ; and all relevant legal precedent, this Court REVERSES the Family
Court's Final Divorce Order pertaining to custodial allocation and otherwise affirms for the reasons set forth below.
_________________
1 The Court notes Ms. M's claim that she did not receive service or the Petition for Appeal. Approximately one
(1) week after Mr. Halburn filed the Petition for Appeal, Ms. M physically appeared at the Putnam County Circuit Clerk's office to obtain a copy.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in Putnam County, West Virginia, in 1998. they had one child, who was born on August 29, 2007. The parties moved to California for a period of time but returned to West Virginia. Ms. M filed for divorce in November 2011. Upon the recusal of Family Law Judge William Watkins, Family Law Judge Michael Kelly was appointed to preside over this case on January 27, 2012. (Dkt. No. 17). On March 3, 2012, the Family Court entered a Temporary Order granting Mr. Halburn visitation with his son every Wednesday night and every other weekend. Ms. M was granted visitation all other times. (Dkt. Nos. 23- 24).
The relevant procedural history of this case beginning on March 3, 2012, and leading up to the Petition for Appeal is lengthy. The parties have litigated an assortment of issues pertaining to their divorce and the custody of their son. As an appellate body, this Court analyzes only the issues raised by Mr. Halburn in the Petition for Appeal which contests the Family Court's Final Divorce Order entered on January 23, 2013. The Family Court granted the parties' petition for divorce on the ground of irreconcilable differences. In the Final Divorce
Order, the Family Court adjudicated issues of equitable distribution, child Custody, mental health evaluations, and attorney fees. (Dkt. Nos. 113-116).
Mr. Halburn identifies four grounds for appeal in the Petition for Appeal. and he cites numerous United States Supreme Court cases in the accompanying memorandum, consisting of approximately fifteen (15) pages. Ms. M rebutted each ground. The Court heard oral arguments on April 17, 2013. The Court addresses each ground for appeal below.
II. STANDARD OF REVIEW
The Court's review of the Family Court's decision is not de novo this Court merely reviews the Family Court's findings of fact and applications of law. Under the structure of the
Family Court system, this Court's jurisdiction is limited to reviewing the evidence presented to the Family Court and determining whether the Family Court made an error in its (1) findings of fact, which are reviewed under a clearly erroneous standard or (2) application of law to facts, under an abuse of discretion standard. W. Va. Code § SI-2A-14. The court/acts as an appellate court; it may not accept new evidence not presented to the Family Court. Id. at § Sl-2A-14(b).
This Court may affirm, reverse, or remand the decision of the Family Court. Id. at § 51-2A-14(a). However, this Court is not authorized to reverse the case simply because it wishes to substitute its decision for that of the Family Court.
The Family Court's findings of fact are reviewed under a clearly erroneous standard.
W. Va. Code § 51-2A-14(c). The Supreme Court of Appeals of West Virginia has determined that a finding is clearly erroneous if the court "is left with the definite and firm conviction that a mistake has been committed." In Interest of Tiffany Marie S, 196 W. Va. 2L, 231, 470 S.E.2d 177, 185 (W. Va. 1996). This Court cannot overturn a finding "simply because it would have decided the case differently." Id.
The Family Court's application of law to facts is reviewed under an abuse of discretion standard. W. Va. Code §51-2A-14(c). The Supreme Court of Appeals of West Virginia has found that an abuse of discretion has occurred when a court (1) ignores a "material factor deserving significant weight," (2) relies upon an improper factor, or (3) makes a serious mistake in weighing the factors. See Gentry v. Mangum, 195 W. Va. 5 12, 466 S.E.2d 171, fn. 6 (W. Va. 1995).
III. OPINION
I. In his first ground for appeal, Mr. Halburn argues what the Court interprets as a
claim that the Family Court erred in awarding custody of the parties' child to Ms. M and limiting his visitation. He states the following:
Family Court Judge egregiously abused discretion under Family Rule 22(b) to
make findings to follow W.Va. shared parenting statute §48-l-239 as well as
failed to consider W.Va. §48-9-209 (1-5). Family Court judge failed to consider
the shared statute in awarding shared custody to the parties and based his decision
on arbitrary and capricious discretion that Respondent father had emotional
problems. The alleged emotional problems are not based on facts and are being
arbitrarily used by the Judge in a personal anti-male vendetta against Respondent
father. Judge's decision had no relevant findings supported by relevant law given
that most of the Judge's decision was based on an error-filled psych report of
Respondent, using points of report for personal attacks upon Respondent, because
Respondent had filed judicial complaint(s) against Judge for violating
Respondent's constitutional rights to shared parenting time.
Petition for Appeal, pp. 1- 2, February 20, 2013.
The Family Court changed Mr. Halburn's visitation times with his son. Under the
Temporary Order entered on March 3, 2012, Ms. M was deemed the primary custodial parent. Mr. Halburn was granted visitation rights every Wednesday night and every other weekend. Under the Final Divorce Order entered on January 23, 2013 the Family Court reduced his visitation to "every other Saturday and Sunday commencing at 9:00 a.m. and ending at 8:00 p.m. each day beginning February 2, 2013," Final Divorce Order, p. 5, Jan. 23, 2013. In addition, the Family Court granted Mr. Halburn visitation with his son from noon to six p.m. on the child's birthday, the father's birthday, Easter, Father's Day, Thanksgiving Day, and Christmas day. Id. at p. 30. Every Thursday at 6:00 p.m., Mr. Halburn is permitted to telephone the child but he must provide and pay for the phone. Id.The Family Court maintained the prohibition on Mr. Halburn from removing the child from the Stale of West Virginia. Id. at p. 5. The Family Court ordered Mr. Halburn to obtain therapy and then seek modification of this parenting Plan'
This premise of this first argument is that the Family Court failed to include sufficient findings of fact in the Final Divorce Order in accordance with Rule 22(b) of the West Virginia Rules of Practice and Procedure for Family Courts. That rule slates, in part, “[i]n” proceedings in which both parties are self- represented, the court shall prepare all orders and findings of fact. In proceedings in which one or both parties are represented by attorneys, the court may assign one or more attorneys to prepare an order or proposed findings of fact. ... " The Final Divorce Order includes a heading entitled "Allocation of Custodial Responsibility.” That section has several subsections that altogether total approximately twenty-five (25) pages. The Court finds the Family Court's order and findings of fact to be sufficient under Rule 22(b) of the Rules of Practice and Procedure for Family Courts.
The Family Court's primary reason stated for changing Mr. Halburn's visitation time with his son is the fear that Mr. Halburn’s erratic behavior will subject the Child to violence in the future. The Family Court based its opinion on three sources of information, the psychologist who evaluated Mr. Halburn, Ms. M's testimony, and Mr. Halburn’s actions.
The Family Court ordered the parties to undergo psychological evaluations. Dr. Hudson evaluated Mr. Halburn and diagnosed him with adjustment disorder and personality disorder.
The basis of his diagnosis is Mr. Halburn's behavior towards others and how he perceives the conflicts he experiences, In his report, Dr. Hudson discusses Mr. Halburn's interpersonal conflicts and how those relationships affect him. More importantly, Dr. Hudson stated that the parties' child will likely be exposed to these conflicts created by Mr. Halburn. Dr. Hudson testified via telephone during the trial held in this matter that additional conflicts are likely to occur and that he could not rule out the possibility that the child will consequently be exposed to danger. A previous psychological evaluation of Mr. Halburn was conducted by Dr. Thistlewaite, who opined that Mr. Halburn has a propensity for aggressive behavior and that any threats made by Mr. Halburn should be taken seriously.
Ms. M's testimony seemed important to the Family Court because she relayed the same behavioral characteristics of those noted by the psychologists who evaluated him. She testified about specific instances involving airports and hotels in which Mr. Halburn was allegedly involved in nonviolent conflict resulting in his removal or voluntary departure therefrom.2 The Family Court also noted Ms. M's testimony regarding Mr. Halburn's previous arrests. Ultimately, Ms. M argued that Mr. Halburn is likely to create conflict in the future that will place the child in reasonable apprehension of physic harm or that Mr. Halburn will be arrested and the child will be stranded in the care of strangers.
With regards to Mr. Halburn's own actions during the course of this litigation, this Court recognizes that the Family Court below had ample opportunity to obs1rve Me. Halburn's behavior. There were numerous arguments involving the propriety of Family Law Judge Kelly himself, the propriety of Ms. M's attorney, Ms. M's fitness to parent, whether the child would be permitted to visit his grandmother in California before she passed, whether Mr. Halburn would be permitted to take the child out of state, and many other matters. Based on these arguments and Mr. Halburn's behavior, the Family Court concluded as a matter of law that it would be manifestly harmful to XXXXX for his father to have any parenting time beyond [Saturday and Sunday visitation ] .... Mr. Halburn's personality disorder has in the past, and much more likely than not will in the future, put XXXXX at an increased risk of harm caused by third parties reacting to Mr. Halburn's ... behavior.
Final Divorce Order, p. 30, Jan. 23, 2013.
--------------------------------
2 This Court has reviewed the DVD recordings of the Family Court hearings held on October I and October 15,
2012, and notes that the parties dispute whether Mr. Halburn was removed from these locations or voluntarily left due to his dissatisfaction with the services provided.
The issue before the Court is whether, under West Virginia law, the Family Court abused its discretion by limiting Mr. Halburn's visitation with his child because of his personality disorder. When determining child custody issues, the Family Court encourages parties to create an agreed parenting plan. Frequently, such a goal is not accomplished by two adults ending their marriage and separating their once joined lives. When the parents cannot agree on custodial responsibility, the Family Court is to
allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation ...except to the extent required under section 9-209 or necessary to … permit the child to have a relationship with each parent who has performed a reasonable share of parenting functions.
W. Va. Code § 48-9-206(a)(1).
Before Ms. M filed for divorce, both parents in this case worked for varying periods of time as full time and/or substitute teachers. Additionally, Mr. Halburn operated and continues to operate a website from which he earns income, and Ms. M sold Mary Kay products.
Upon review the Family Court's orders and the record below, the Court finds that each parent's caretaking functions have varied.
If the Court cannot allocate custodial responsibility under the previously cited section "because the history [of the parents' caretaking functions] does not establish a pattern of caretaking sufficiently dispositive of the issues of the case, the court shall allocate custodial responsibility based on the child's best interest... Id at § 48-9-206(c). In fact, the most important consideration in this case or any child custody matter is the best interest of the child. W. Va. Code § 48-9-102(a); Syl. pt. 2, Carter v. Carter, 196 W. Va. 239, 471 S.E.2d 193 (1996). Achieving fairness between the parents always falls behind the best interests of the child. W. Va. Code § 48-9-102(b). Consequently, the issue becomes whether Mr. Halburn's visitation with his son is in the child's best interest.
Mr. Halburn's argument assumes that under the best interests of the child umbrella from which it is covered, the Court must award custody of his child to him unless the Court finds one of the following factors listed in West Virginia Code § 48-9-209. That Code section requires the court to limit custodial responsibility of a parent if the court determines that the parent
1) has abused, neglected or abandoned a child;
2) has sexually assaulted or sexually abused a child as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code;
3) has committed domestic violence, as defined in section 27-202;
4) has interfered persistently with the other parent's access to the child,, except in
the case of actions taken for the purpose of protecting the safety of the child or
the interfering parent or another family member, pending adjudication of the facts underlying that belief; or
5) has repeatedly made fraudulent reports of domestic violence or Child abuse.
Id. at 48-9-209(a). In fact, Mr. Halburn argues in ground one of his appeal that the Family Court committed error by failing to consider these factors and list them in the Final Divorce Order.
However, this Code sect ion requires consideration of these factors only upon the request of either parent or upon receipt of credible information thereof. Id. There has been no allegation that Mr. Halburn abused the child, neglected the child, abandoned the child, sexually assaulted the child, committed domestic violence, interfered with Ms. M's access to the child, or made a fraudulent report of domestic violence or child abuse.
Consequently, the standard is the best interest of the child. The Family Court's decision as to how custody shall be allocated in this case in accordance with the best interest of the child is reviewed by this Court under the abuse of discretion standard. To reverse the Family Court's allocation of custody in this case, the Court must find that the Family Court ( 1) ignore[d] a "material factor deserving significant weight," (2) relied upon an improper factor, or (3) made a serious mistake in weighing the factors. See Gentry v Mangum, 195 W. Va. 512,466 S.E.2d 171, fn 6 (W. Va. 1995).
As noted above, the Family Court found it is not in the best interest of the child to allocate custody of him to Mr. Halburn more than every other Saturday and Sunday, excluding Saturday night. The stated reasoning is that Mr. Halburn will subject the child to potential danger in the future due to his propensity to initiate conflict with others. As noted above, this decision is based on the psychologists' opinions, Ms. M's testimony, and Mr. Halburn's actions.
The Court finds the Family Court's decision to limit Mr. Halburn's visitation with his son to the daytime hours of every other Saturday and Sunday is an abuse of discretion because there is little evidence that Mr. Halburn actually poses a threat to the well-being of the child. Dr. Hudson's testimony and report provide the most support for this Court's finding:
However, this examiner is aware of no credible allegations that Mr. Halburn has
ever become violent with anyone or that he has ever mistreated his son .... While
the currently opined personality disorder is indeed a risk factor for violent
behavior, it is just one of many and does by any means correlate precisely with
violence risk. . . . Other risk factors for violent acting out, including prior
violence, age, substance abuse, major mental illness, psychopathy, and prior
supervision failure are not apparent in this case.
Report of Dr. Hudson, p. 13. Jan. 30, 2012 (Dkt. No. 135). Importantly, Dr. Hudson testified before the Family Court on October 15. 20 12, that despite Mr. Halburn's personality issues he does not see a reason to limit his visitation with the child. Recorded hearing, Oct. 15, 2012, at 3:30.
Dr. Hudson casted doubt on Dr. Thistlewaite's assessment that Mr. Halburn is at significant risk of committing violent behavior in the future:
While it is true that personality disorder characteristics such as those that Dr.
Thistlewaite observed in Mr. Halburn constitute a risk factor for violence, this
would be but one of many such risk factors and in isolation should not be
construed as significantly elevating violence risk in an individual without a
known history of significant violence. This examiner notes that
it would be reasonable to weight Mr. Halburn's personality issues more
heavily if a known history of significant violence had been substantiated.
Id. at p. 2. This opinion correlates with Dr. Hudson's conclusion that possessing one risk factor,
a personality disorder, IS not sufficient to deem someone unfit to parent. Dr. Hudson's evaluations clearly indicate that Mr. Halburn experiences problems associated with his personality disorder; however, he opined that these problems do not involve the child and there appears to be little risk of endangering the child. In fact, Dr. Hudson commented that “[t]here is some evidence of a positive bond between Mr. Halburn and that should be construed as constituting a protective factor against future child maltreatment."
Id.
Although Mr. Halburn's personality disorder does not render him unfit to parent, Dr.
Hudsonopined it does affect Mr. Halburn's relationships with others. Mr. Halburn could benefit by receiving treatment for his personality disorder so that he can better interact with other people involved in the child's life. Dr. Hudson recommended that Mr. Halburn consider
psychotherapy and/or mood stabilizers.
In summary, the child has never been harmed or abused while in the custody of Mr. Halburn. The Court does recognize a potential risk of subjecting the child to observe Mr. Halburn's repeated engagement in conflict. However. this Court does not find that the potential for the child to witness a dispute between his father and another adult, with a lack of violence in Mr. Halburn's history, does not warrant limitation of his parenting time with his child. Such potential, by itself, does not make Mr. Halburn an unfit parent. None of the factors listed in West Virginia Code § 48-9-209(a) are at issue, despite Mr. Halburn's urging that the Putnam County Courts consider them. It is in the best interest of every child to spend time with both parents to the extent practicable. Without a concrete, existing reason to limit one parent's visitation, that parent should be provided the opportunity to pursue the opportunity to raise his or her child. In this case, the lack of psychological testimony that Mr. Halburn definitely poses a risk to the child alleviates the need to limit Mr. Halburn's visitation. Consequently, the Family Court made a serious mistake in heavily emphasizing Dr. Thistlewaite's report and Ms. M's testimony. As such, the Family Court abused its discretion by reducing Mr. Halburn's visitation with his son from Wednesday night and every other weekend to only the daytime hours of every other Saturday and Sunday.
The remaining issue with regards to child custody is what custodial allocation is appropriate in this case. Without a prior history of violence, any evidence that Mr. Halburn has emotionally or physically abused the child or any evidence that Mr. Halburn actually poses a threat to the child, the Court finds that the Family Court should not have deviated from the parenting plan in the Temporary Order. Reinstating the parenting plan under that Order would give Mr. Halburn visitation rights with the child every Wednesday and every other weekend. However, Mr. Halburn is prohibited from the premises of the child's pre-school. Effective May 17, 2013, Mr. Halburn's visitation under the Temporary Order is reinstated with the exception of Wednesday overnight visits. Specifically, Mr. Halburn shall have visitation rights every other weekend beginning on Friday at 6:00 p.m. and ending on Sunday at 8:00 p.m. The parties will continue to meet at the Hurricane Police Department to transfer the child.
Additionally, Mr. Halburn has been prohibited from taking the child but of slate. Again, without any history of violence or a determination that Mr. Halburn poses an actual threat of danger to the child, this Court finds that to prohibit him from taking the child out of state is an abuse of discretion. Nonetheless, the Court has carefully considered the Family Court's opinion regarding this issue. Mr. Halburn shall be permitted to lake the child out of state under the following conditions: he will always give Ms. M notice at least one (1) week prior to the scheduled trip; the child is prohibited from missing school to attend such trips; and Mr. Halburn must leave and return from the out-of-state trip on the same day.
2. In his second ground for appeal, Mr. Halburn argues that because Ms. M failed to comply with the Family Court's order that both parties undergo a psychiatric evaluation, she should not have been awarded custody of their child. Specifically, he claims that the Family Court egregiously abused discretion by ordering that both parties be subjected to mental health evaluations, yet Petitioner mother refused to get an evaluation, committed bad faith, yet was awarded custody." Petition for Appeal. p.2. Feb. 20, 2013. Mr. Halburn complied with the
Court's order, and Dr. Hudson completed a psychiatric evaluation of him, as discussed above. Ms. M did not comply. The Family Court found her in contempt and fined her $100.00. In her response to the Petition for Appeal. Ms M argues that the psychiatric evaluation was very expensive and she could not afford to pay it. However she paid the fine imposed by the Family Court.
Family courts in the State of West Virginia may find litigants in contempt and sanction those litigants. West Virginia Code § SI-2A-9 states in relevant part
(a) In addition to the powers of contempt established in chapter forty eight of this
code, a family court judge may:
( 1) Sanction persons through civil contempt proceedings when necessary to preserve and enforce the rights of private parties or to administer remedies granted by the court;
(2) Regulate all proceedings in a hearing before the family court judge;
(3) Punish direct contempts that are committed in the presence of the court.
Or that obstruct, disrupt or corrupt the proceedings of the court.
(b) A family court judge may enforce compliance with his or her lawful orders
with remedial or coercive sanctions designed to compensate a complainant for losses sustained and to coerce obedience for the benefit of the complainant. Sanctions must give the contemnor an opportunity to purge himself or herself. In selecting sanctions, the court must use the least possible power adequate to the end proposed. A person who lacks the present ability to comply with the order of the court may not be confined for a civil contempt. Sanctions may include, but are not limited to, seizure or impoundment of property to secure compliance with a prior order. Ancillary relief may provide for an award of attorney's fees.
Additionally, an appellate court reviewing a family court's sanction should defer to the discretion of the family court. See Deitz v. Deitz, 222 W.Va. 46, 659 S.E.2d 331 (2008) ("Furthermore, we typically have afforded broad discretion to lower courts imposing sanctions for contempt to enable those tribunals to fashion a punishment that corresponds with the intransigence of the contemnor.")
The Family Court did not abuse its discretion by fining Ms. M $100.00 for her failure to undergo a psychiatric evaluation per the order of the Family Court. Ms. M violated the order of the Family Court. She stated that this violation was not willful; she merely could not afford to pay for the evaluation. Accordingly, a fine of $100.00 to sanction her is not an abuse of discretion. Certainly, failure to comply with the Family Court's order to undergo a psychiatric evaluation does not warrant an order to deny Ms. M custody of her child.
Therefore, this ground for appeal is dismissed.
3. In his third ground for appeal, Mr. Halburn reiterates his argument in ground one that the Family Court erred by awarding custody of the child to Ms. M instead of Mr. Halburn. He further explains that the
Family Court Judge egregiously abused discretion by failing to follow constitutional law and U.S. Supreme Court rulings holding that the state must act de minimis when involved in custody matters. Family Court Judge made it a personal vendetta against Respondent father and deprived him and this child of their fundamentally protected constitutional rights to have a relationship without state interference, in violation of U.S. Supreme Court rulings and mandates limiting the State's interference in parental rights (de minimis) with6ut clear and convincing evidence of abuse or neglect to the child. The Trial Judge used improper standards and hid behind the "best interests of the child" to usurp Respondent's parental rights. To suggest government's "special interest" in protecting children under guise of "best interest", or simply say "child has a right to be free from some vague harm" is legally insufficient criteria to involve the State.
Id. In his fifteen-page memorandum accompanying the Petition for Appeal, Mr. Halburn cites
numerous United States Supreme Court opinions discussing varying levels of state interference
with parents' rights to raise their children. For example, Mr. Halburn cites Parham v. J.R., 442
U.S.584, 99 S. CI. 2493 (1979) for the premise that the State's involvement in parenting decisions should be de minimis unless the parent is unfit. The Supreme Court in this case discussed the admittance of mentally or behaviorally handicapped children to institutions and the State's involvement therein.
Of course, this Court respects a parent's constitutional right to raise his child. See syl. pt. 1, In re Willis, 157 W. Va. 225,207 S.E.2d 129 (1973) (" In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.") The West Virginia Supreme Court's discussion of a parent's right to raise his child usually occurs in abuse and neglect cases. Fit parents are general y free to raise their children with minimal state interference. Syl. pt.1, Slate ex rel Kiger v. Hancock, 153 W, Va. 404, 168 S.E.2d 798 (1969). ("A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or dereliction of duty, or has waived such right, or by agreement has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.")
However, parents who are married and petition the courts for a divorce necessarily invite state interference with the upbringing of their children. The State, as parens patriae, must oversee the dissolution of marriage, being a legal institution, and what is Jo be done with the parties' children, if any. In In State ex rel. Paul B. v. Hill, 201 W. Va. 248, 257, 496 S.E.2d 198, 207 (1997), the Supreme Court discussed this duty:
While parents enjoy an inherent right to the care and custody of their own
children, the State in its recognized role of parens patriae is the ultimate protector
of the rights of minors. The State has a substantial interest in providing for their
health, safety, and welfare, and may properly step in to do so when necessary ....
This parens patriae interest in promoting the welfare of the child favors preservation, not severance, of natural family bonds...
Id. (citing In the Interest of Betty J. W., 179 W. Va. 605, 608, 371 S.E.2d 321' 329 (1988). The State's interest in children as parens patriae is tempered with the best interest of the child. ''This Court cannot ... ignore its parens patriae duty to protect the best interests of the child." Id. (citations omitted). The best interest of the child is the primary objective in custodial allocation cases. W. Va. Code § 48-9-102(a).
Therefore, the State, and this Court, has a substantial interest in overseeing the custodial allocation of the parties' child. Because the parties ask the courts of this State to oversee their divorce, the State has every right to ensure that Mr. Halburn's child is being adequately cared for in the midst of his divorce.
To the extent that Mr. Halburn raises the same arguments in this ground for appeal as ground one discussed above, the Court dismisses this ground.
4. In his fourth ground for appeal, Mr. Halburn makes what the Court interprets as three arguments. To the extent that Mr. Halburn makes other arguments, including Ms. M's failure to undergo a psychiatric evaluation, that have been already discussed the Court does not address those arguments.
First, Mr. Halburn claims the Family Court improperly ordered him to pay part of Ms.
M's attorney fees: "[t]rial judge egregiously abused discretion by ... award[ng] Petitioner for her 'bad faith' by granting her attorney's fees and costs in the amount of $7,935.85"
Petition for Appeal, p. 2, Feb. 20, 2013. In response, Ms. M argues that ordering Mr. Halburn to pay some of her attorney fees was warranted because the fees were a result of countless emails, motions, hearing continuations, from Mr. Halburn.
Ms. M originally requested that the Family Court award her attorney fees and costs in the amount of $10,435.85. In making the determination whether to grant this award, the Family Court discusses in the Final Divorce Order West Virginia Code § r S-I-305(a), which states that "costs may be awarded to either party as justice requires ....” Also, the Family Court cited §4S-1 -305(c):
(c) When it appears to the Court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.3
The Family Court specifically stated that the attorney fees and costs in this litigation were "due to much of the fees incurred by Ms. Halburn being a result of Mr. Halburn’s vexatious, wanton and oppressive conduct during the course of this litigation" under the above-cited Code sections. Final Divorce Order. p. 36. Jan. 23. 2013. The Family Court further analyzed not only the six factors courts analyze in determining whether to grant a request for attorney fees and costs under
Banker v. Banker, 196 W. Va. 535,474 S.E.2d 465 (1996), but also claimed the twelve reasonableness factors. Id.at pp. 37-40.
This Court finds that the Family Court's analysis of this issue is thorough and well reasoned.
Accordingly, the Family Court's order that Mr. Halburn pay part of Ms. M's attorney fees is not an abuse of discretion.
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3 This Court also notes West Virginia Code § 48-5-504 that also authorizes the Family Court to award attorney fees and costs in divorce cases. In relevant pan, that statute states
(a) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the act ion. The question of whether or not a party is entitled to temporary spousal support is not decisive of that party’s right to a reasonable allowance of attorney's fees and court costs.
…
(c) If it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes. thereby delaying or diverting attention from valid claims or defenses asserted in good faith. the court may order the attending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
The second part of Mr. Halburn's argument in the fourth ground for appeal involves equitable distribution. Mr. Halburn claims the Family Court erred by "granting Respondent $23,000.00 for marital home settlement instead of total $65,000.00 for Petitioner's “bad faith”. Petition for Appeal, p. 2, Feb. 20, 2013. In response, Ms. M stated that the home belonged to her and her mother. Although Mr. Halburn's name is not on the deed, she admitted that the parties paid the mortgage from their joint banking account. She also stated hat the value of the home has declined since Wal-Mart constructed a new store nearby.
The Family Court noted that neither party appraised the property for this litigation. The Family Court assigned a value of $16,000.00, which represents the reduction in the principal mount of the mortgage over the course of the marriage. Because Mr. Halburn's name is not on the deed, the Court finds no abuse of discretion in the value assigned to the house by the Family Court. Therefore, this ground is also dismissed.
Mr. Halburn also requested reimbursement for improvements he made to the home in the amount of $12,750.00. The Family Court declined to award him reimbursement for these costs because they were not improvements that increased the value of the real property. For example, the Family Court noted that some of the Items on the list were photos of the child, an entertainment center, and a swing set. Final Divorce Order, p. 33, Jan. 23. 2013. Upon review of the recorded hearings below, Mr. Halburn testified that he intended to remove the swing set from the property. Accordingly, there has been no abuse of discretion and this argument is dismissed.
Lastly, Mr. Halburn argues that "Judge [Kelly1 failed to consider Petitioner's business assets. Judge abused discretion & failed to consider Respondent's reduction in business income re:support." Petition for Appeal, p. 2, Feb. 20, 2013. Mr. Halburn refers to Ms. M's prior Mary Kay business, in which she testified before the Family Court that such business has ceased. The Court interprets the argument in the second sentence as a petition for modification of Mr. Halburn's obligation to pay child support due to the loss of this job. The Family Court noted that Mr. Halburn admitted to a gross monthly income of $3,250.00. Accordingly, the Family ordered "[p]ursuant to the attached income shares child support formula, the Respondent shall pay child support in the amount of $613.37 per month .... “ Final Divorce Order, p. 3 Jan. 23, 2013. This Court searched the record below and did not find a petition for modification filed with the Family Court. The Court finds that this is not a valid argument on appeal, and Mr. Halburn should petition the Family Court to modify his obligation due to the change it circumstances.
Therefore, all arguments made in the fourth ground for appeal are dismissed.
5. To address all the issues raised by Mr. Halburn, the Court considers Mr. Halburn's allegation that Judge Kelly displayed a bias against Mr. Halburn and acted unethically in resolving this matter. Upon review of the recorded hearings below, the Court finds no bias of Judge Kelly against Mr. Halburn that affected the decision made below. This Court is not the proper forum to consider any further alleged unethical acts of Judge Kelly
If Mr. Halburn wishes to pursue such claims, Mr. Halburn should correspond with the West Virginia Judicial Investigation Commission.
ORDER
Pursuant to West Virginia Code § 51-2A-14, this Court REVERSES the Family Court's Final Divorce Order pertaining to child custody issues in accordance with this Order. The Court otherwise DENIES Mr. Halburn's remaining grounds for appeal.
The Circuit Clerk is directed to send certified copies of this Order to the parties of record, including
Mark Halburn
226 1/2 21st Street
Unit B
Dunbar, West Virginia 25064
DM
Honorable Michael Kelly
P.O. Box 246
111 Court Street, Suite 1000
Charleston, WV 25301
ORDERED this 3rd day of May 2013
