                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


David C., Petitioner Below,
Petitioner                                                                          FILED
                                                                               November 23, 2015
vs) No. 15-0063 (Hancock County 11-C-66)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Mallory M., Respondent Below,
Respondent


                              MEMORANDUM DECISION
        Petitioner David C., by counsel A. Courtenay Craig, appeals the Circuit Court of
Hancock County’s December 19, 2014, order denying his petition for appeal from the family
court.1 Respondent Mallory M., by counsel Christine Machel, filed a response. On appeal,
petitioner alleges that the family court erred in denying his motion for relief from judgment upon
erroneous findings of fact, without holding an evidentiary hearing, and without making sufficient
findings for appellate review.

        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.

        In November of 2010, the parties’ son, W.C.-M. was born. The parents never married.
Following mediation between the parents, they submitted a mediation agreement to the family
court in June of 2011 regarding parenting allocations that was to expire in 2013. However, the
family court never approved this parenting plan. A second shared parenting plan was submitted
to the circuit court, approved, and entered in November of 2011. In October of 2013, petitioner
filed a petition to modify the parenting plan. He filed an amended petition in November of 2013.

        In April of 2014, the family court held a hearing on the petition to modify the parenting
plan. Thereafter, by order entered on August 26, 2014, the family court entered a parenting plan
that extended the summer parenting time for petitioner starting in 2016 when the child reaches
school age and awarded attorney’s fees to respondent. The order, however, denied petitioner’s
request to relocate the child to live with him in Huntington, West Virginia. The family court

       1
        Because this case involves custody of a minor child, the parties will be referred to by
their last initials and the child will be referred to by his initials only throughout this
memorandum decision. This is in keeping with this Court’s policy of protecting the identity of
minors involved in custody matters.
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based its order on the child’s best interests, finding that the child was stable, healthy, and had a
close relationship with respondent.

         On September 25, 2014, petitioner filed a document entitled “Respondent’s Notice of
Intent to Appeal.” However, no petition for appeal was filed at that time. On October 24, 2014,
petitioner filed a motion for relief from judgment under Rule 60(b) of the West Virginia Rules of
Civil Procedure and a motion for an evidentiary hearing in the family court. The family court
entered an order denying the motion for relief from judgment in November of 2014. On
December 12, 2014, petitioner filed a document entitled “Legal Memorandum in Support of
Petition for Appeal” in the circuit court. Several days later, the circuit court denied petitioner’s
appeal. In ruling on the petition for appeal, the circuit court found that petitioner “never filed a
[p]etition for [a]ppeal that complies with the requirements of Rule 28(c) of the Rules of Practice
and Procedure for Family Court . . . .” Despite the fact that petitioner’s appeal was never
properly filed, the circuit court nonetheless addressed petitioner’s assignments of error on appeal
that concerned only the denial of his motion for relief from judgment. It is from the order
denying his appeal that petitioner appeals.

        To begin, it is important to note that petitioner’s motion for relief from judgment in the
family court and his appeal to the circuit court suffered from several procedural deficiencies. To
begin, his motion for relief from judgment made pursuant to Rule 60(b) of the West Virginia
Rules of Civil Procedure was improper, in that West Virginia Code § 51-2A-10(a) provides that
a party to a family court proceeding may seek a reconsideration of an order for a list of reasons
almost identical to that set forth in Rule 60(b). Second, as the circuit court pointed out, petitioner
failed to file an appeal to the circuit court that complied with the applicable rules governing such
appeals. Despite these procedural deficiencies, the circuit court ultimately applied a standard of
review applicable to appeals of Rule 60(b) motions. As such, we review petitioner’s appeal under
the following standard of review:

                “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 and the court’s ruling on such
       motion will not be disturbed on appeal unless there is a showing of an abuse of
       such discretion.” Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d
       85 (1974).

Syl. Pt. 1, Builders’ Serv. and Supply Co. v. Dempsey, 224 W.Va. 80, 680 S.E.2d 95 (2009).
Moreover, in addressing such appeals, we have held that “‘[a]n appeal of the denial of a Rule
60(b) motion brings to consideration for review only the order of denial itself and not the
substance supporting the underlying judgment nor the final judgment order.’ Syllabus Point 3,
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Id. at 80, 680 S.E.2d at 96, syl. pt. 2.

       On appeal to this Court, petitioner reasserts his claims that the family court erred in
denying his motion for relief from the judgment without first holding an evidentiary hearing,
upon erroneous findings, and without making sufficient findings for appellate review.
Additionally, petitioner alleges that the circuit court erred in denying his petition for appeal
because it had an insufficient basis for the denial upon the family court’s order and that by
relying on the underlying facts, the circuit court “opened up the facts behind the [f]amily

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[c]ourt’s denial” of his motion. The Court, however, does not agree. Upon our review and
consideration of the circuit court’s order, the parties’ arguments, and the record submitted on
appeal, we find no error or abuse of discretion by the circuit court. Our review of the record
supports the circuit court’s decision to deny petitioner’s appeal because he simply attempted to
relitigate the underlying issues before the family court in consideration of its final order, which
he failed to appeal. Our review shows that what petitioner alleges were mistakes and fraud in the
family court’s final order were, simply, findings of fact with which petitioner did not agree.
Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the
assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the
record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the
circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised
herein and direct the Clerk to attach a copy of the circuit court’s December 19, 2014, “Final
Order” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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