                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
Robert H.,                                                                       June 25, 2020
                                                                                EDYTHE NASH GAISER, CLERK
Petitioner Below, Petitioner                                                    SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

vs.) No. 19-0699 (Berkeley County 18-D-150)

Jessica M.,
Respondent Below, Respondent




                               MEMORANDUM DECISION


        Petitioner Robert H., 1 self-represented litigant, appeals the June 17, 2019, order of the
Circuit Court of Berkeley County denying his appeal from the May 28, 2019, order of the Family
Court of Berkeley County that entered judgment in the amount of $4,900.36 for past due child
support owed by petitioner. Respondent West Virginia Bureau of Child Support Enforcement (“the
BCSE”), by counsel Jonathan M. Burton, filed a summary response in support of the circuit court’s
order. Petitioner filed a reply.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

       The record is sparse, 2 but we glean the following: The parties have two minor children

       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); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
        Petitioner’s appendix consists of only twenty-nine pages of documents which do not
(continued . . .)
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together. Respondent and the children live in the State of New York, and petitioner lives in
Berkeley County, West Virginia. From January 1, 2012, to July 31, 2018, petitioner’s child support
obligation was $470 per month. Since August 1, 2018, petitioner’s child support obligation has
been $379 per month, due to a court-ordered modification. Petitioner is also required to pay a
minimum of an additional $100 per month to reduce the amount of his child support arrearages. 3

        On March 25, 2019, the BCSE filed motion for a decretal judgment for past due child
support payments owed by petitioner. Petitioner filed a response to the motion on April 1, 2019,
alleging that he was arrears in the amount of $3,307.97 and that he was owed a credit in the amount
of $2,274 for payments made during the period of August 1, 2018, to January 31, 2019.

        At a May 2, 2019, hearing, the family court entered judgment against petitioner in the
amount of $4,900.36, rejecting his testimony that the correct amount was $3,307.97, because
petitioner “provided no accounting to illustrate how he calculated the figure he allege[d] . . .[,] nor
has he offered any credible evidence that [the] balances [sic] alleged by the [BCSE were]
incorrect.” The family court memorialized the judgment in a May 28, 2019, order.

        On June 5, 2019, petitioner appealed the family court’s May 28, 2019, order and requested
oral argument. By order entered on June 6, 2019, the circuit court directed petitioner to provide it
with the audio-visual recordings of “all [relevant] proceedings before the family court,” to which
petitioner complied.

       By order entered on June 27, 2019, after reviewing the recordings, the circuit court denied
the appeal. The circuit court found that while petitioner contended that he made child support
payments from August 1, 2018, to January 31, 2019, in the total amount of $2,274, that claim was
not supported by the record. Accordingly, the circuit court found that the family court did not
commit error “to credit the [BCSE]’s fully documented accounting over [petitioner]’s claim for an

include the BCSE’s accounting of the amount petitioner owed in past due child support. While
petitioner submitted the audio-visual recordings of the family court proceedings to the circuit court
for its review, the recordings were not included in the appendix to this Court. Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure provides, in pertinent part that “[t]he argument must
contain appropriate and specific citations to the record on appeal, including citations that pinpoint
when and how the issues in the assignments of error were presented to the lower tribunal,” and
that “[t]he Court may disregard errors that are not adequately supported by specific references to
the record on appeal.” See State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994)
(stating that we “take as non[-]existing all facts that do not appear in the [appendix] record and
will ignore those issues where the missing record is needed to give factual support to the claim”).
Therefore, we disregard any argument based on materials not included in petitioner’s appendix,
including his contention that the family court refused to consider his evidence that the BCSE’s
calculations were erroneous.
       3
        Petitioner previously owed more in past due child support than the $4,900.36 judgment
awarded. A December 12, 2018, BCSE arrearage computation sheet reflects that petitioner made
a $10,000 payment toward the arrearage on October 9, 2018.
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undocumented credit.”

       Petitioner now appeals the circuit court’s June 27, 2019, order denying petitioner’s appeal
from the family court’s May 28, 2019, order. We review circuit court orders denying appeals from
family court orders under the following standard:

              In reviewing a final order entered by a circuit court judge upon a review of,
       or upon a refusal to review, a final order of a family court judge, we review the
       findings of fact made by the family court judge under the clearly erroneous
       standard, and the application of law to the facts under an abuse of discretion
       standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

        On appeal, petitioner argues that the circuit court erred in not allowing him to present oral
argument prior to denying his appeal. Rule 31(c) of the West Virginia Rules of Practice and
Procedure for Family Court provides, in pertinent part, that “[i]f a petition for appeal is granted,”
and if oral argument is requested in writing, “the granting order shall set forth a date and time for
oral argument.” Pursuant to Rule 31(c), we find that the circuit court was not required to hold oral
argument because it denied the appeal.

        Petitioner argues that the family court erred in entering judgment against him in the amount
of $4,900.36 because he made child support payments in the amount of $379 per month for the
period from August 1, 2018, to January 31, 2019. The BCSE counters that the family court properly
rejected petitioner’s argument that its calculations were erroneous. We agree with the BCSE.

        “An appellate court may not decide the credibility of witnesses or weigh evidence as that
is the exclusive function and task of the trier of fact.” State v. Guthrie, 194 W. Va. 657, 669 n.9,
461 S.E.2d 163, 175 n.9 (1995). Here, the family court found that petitioner failed to present “any
credible evidence that [the] balances [sic] alleged by the [BCSE were] incorrect.” We concur with
the circuit court’s finding that the family court did not commit error “to credit the [BCSE]’s fully
documented accounting over [petitioner]’s claim for an undocumented credit.” Accordingly, we
conclude that the circuit court’s denial of petitioner’s appeal from the family court’s decretal
judgment for past due child support payments was proper.

        For the foregoing reasons, we affirm the circuit court’s June 27, 2019, order denying
petitioner’s appeal from the family court’s May 28, 2019, order.

                                                                                          Affirmed.



ISSUED: June 25, 2020


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CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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