                              STATE OF WEST VIRGINIA 

                            SUPREME COURT OF APPEALS 


                                                                                      FILED
In re The Child of:                                                                 May 18, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
John S.,                                                                         SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Respondent Below, Petitioner

vs) No. 16-1192 (Fayette County 98-D-400)

Alesha C.,
Petitioner Below, Respondent

                               MEMORANDUM DECISION
        Petitioner John S.,1 pro se, appeals the November 18, 2016, order of the Circuit Court of
Fayette County affirming two orders of the Family Court of Fayette County. In the first order,
entered September 28, 2016, the family court reduced Respondent Alesha C.’s child support
obligation to $0 per month due to her incarceration. In the second order, entered October 11, 2016,
the family court denied petitioner’s motion to reconsider its September 28, 2016, order.
Respondent did not file a response.2

       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

       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
          On May 18, 2017, and August 11, 2017, this Court entered amended scheduling orders
noting that respondent failed to file a response and directed respondent to do so. Despite these
orders, respondent did not file a response. Pursuant to Rule 10(d) of the West Virginia Rules of
Appellate Procedure, if a respondent fails to respond to an assignment of error, this Court will
assume that the respondent agrees with petitioner’s view of the issue. However, the Court declines
to rule in petitioner’s favor simply because respondent failed to file a response. See Syl. Pt. 8, State
v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991) (holding that we will accept a party’s concession
only after a proper analysis shows that it is correct).

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reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        The parties are both incarcerated. They were married on December 22, 1997, and divorced
by order entered May 28, 1999. In that order, it was noted that petitioner was nineteen-years-old
and respondent was sixteen-years-old at the time of the divorce proceeding. The parties owned “no
real estate,” but each was awarded the exclusive use and possession of his or her “personal
effects.”

        The parties’ child became emancipated on his eighteenth birthday, December 24, 2015. At
the time of the child’s eighteenth birthday, the child support order in effect was previously entered
on October 7, 2010, and directed that respondent pay to petitioner $205 per month in child support.
In the October 7, 2010, order, the family court directed that child support payments shall continue
until the child’s twentieth birthday so long as the child remained unmarried, residing with a parent,
guardian, or custodian, and enrolled as a full-time student in a secondary or vocational school
“[u]nless sooner modified or terminated by [c]ourt [o]rder.”

         On August 9, 2016, respondent filed an expedited petition for modification of child support
in the Family Court of Fayette County, alleging that she had become incarcerated and that, as a
result, her monthly income was reduced from $500 to $51. Respondent listed the child’s address as
“unknown” and attached her job assignment from Lakin Correctional Center showing her salary as
$51 per month. Petitioner filed multiple motions for appointment of a guardian ad litem (“GAL”)
to represent his interests as an incarcerated person, and a hearing was set for October 17, 2016.
Given that both parents were incarcerated at the time of respondent’s expedited petition for
modification of child support, the record does not disclose the child’s circumstances at the time of
the petition.

        By order entered September 28, 2016, the family court cancelled the October 17, 2016,
hearing and denied petitioner’s motions for appointment of a guardian ad litem as there was “no
possible way for him to be prejudiced by a modification of [respondent]’s child support
obligation.” As support for its order reducing respondent’s support obligation to $0 per month, the
family court found (1) respondent stated that her income was decreased from $500 to $51 per
month; (2) the reason for the substantial decrease in respondent’s income was that she became
incarcerated at Lakin Correctional Center; and (3) a recalculation based upon the child support
guidelines resulted in a support amount of $0 per month. The family court ordered respondent to
notify the West Virginia Bureau of Child Support Enforcement (“BCSE”) “of any future changes
regarding her income.”

       On October 7, 2016, petitioner filed a motion asking the family court to reconsider its
September 28, 2016, order. Petitioner argued that the family court erred in finding that there was
an ongoing support obligation when the only issue was whether respondent owed him for past,
unpaid child support for periods of time during which he had custody of the child. The family court
denied petitioner’s motion by order entered October 11, 2016, finding that there was “no reason to
have a hearing” and “no reason to appoint” a GAL for petitioner. Petitioner appealed the
September 28, 2016, and October 11, 2016, orders to the Circuit Court of Fayette County which
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affirmed the family court’s rulings on November 16, 2018. Petitioner now appeals from the circuit
court’s November 16, 2018, order.

       We review this matter 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). In syllabus points 3, 6, and 8 of
Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007), we held:

       3.     Modification of support obligations imposed on incarcerated persons may
       be sought in the same manner as any parent.

       ****

       6.      The support obligation of an incarcerated person should be set in light of
       that person’s actual earnings while incarcerated and other assets of the incarcerated
       person practically available to provide such support.

       ****

       8.      Any modification order involving a child support obligation of a person
       known by the court to be incarcerated may fix a time for reconsideration of the
       modification upon release of the obligor from incarceration, and include provision
       for notice to the obligee, the obligor and, if appropriate, the [BCSE], the production
       of post-incarceration earnings of the obligor and any other information necessary or
       convenient for such a post-incarceration modification of the support obligation.

        On appeal, petitioner concedes that respondent is currently unable to pay any support
obligation that she may owe because he states that the obligation should be reinstated “as soon as
[respondent] is able” to pay. We first note that, when the parties were divorced in 1999, the only
property divided between them was their “personal effects” and nothing suggests that either party
has accumulated significant assets since that time. Second, to support her expedited petition for
modification of child support, respondent attached her job assignment from Lakin Correctional
Center showing her salary as $51 per month. Accordingly, based on our review of the record, we
accept petitioner’s concession that respondent is currently unable to pay any support obligation
that she may owe.3


       3
           See footnote two, supra.

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        Notwithstanding his concession, petitioner contends that the family court’s September 28,
2016, and October 11, 2016, orders should be reversed because the court erred in finding that there
was an ongoing support obligation when the only issue was whether respondent owed him for past,
unpaid child support for periods of time during which he had custody of the child. We find that the
record is unclear as to whether an ongoing support obligation existed at the time of respondent’s
modification petition given that, pursuant to the family court’s October 7, 2010, order, child
support payments shall continue until the child’s twentieth birthday, December 24, 2017, so long
as the child remained unmarried, residing with a parent, guardian, or custodian, and enrolled as a
full-time student in a secondary or vocational school. Furthermore, even if the only issue was back
child support owed by respondent to petitioner, we find that a reversal is not necessary given
petitioner’s concession that respondent is currently unable to pay any obligation that she may owe.

        Petitioner’s practical concern is that respondent be required to resume paying the back
child support due him once she is able. We find that the family court addressed this issue in its
September 28, 2016, order, by directing respondent to notify the BCSE “of any future changes
regarding her income.” We note that syllabus 8 of Adkins is permissive—not mandatory—in terms
of what measures the family court may implement in order to facilitate a prompt
“post-incarceration modification of the support obligation.” 221 W.Va. at 604, 656 S.E.2d at 49.
Therefore, while petitioner may believe that the family court chose an ineffective measure to
ensure an expeditious resumption of respondent’s obligation, we find that the court was not
required to do anything more. Accordingly, based on our review of the record, we conclude that
the family court did not abuse its discretion in reducing respondent’s support obligation to $0 per
month and denying petitioner’s requests for a hearing and the appointment of a GAL to represent
his own interests as an incarcerated person.

       For the foregoing reasons, we affirm the circuit court’s November 16, 2018, order
upholding the family court’s September 28, 2016, and October 11, 2016, orders.

                                                                                        Affirmed.

ISSUED: May 18, 2018

CONCURRED IN BY:

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




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