                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Yeshiareg Mulugeta,
Respondent Below, Petitioner                                                      FILED
                                                                              January 13, 2020
vs) No. 18-0840 (Berkeley County 14-D-1146)                                   EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Dimitri Misailidis,
Petitioner Below, Respondent


                              MEMORANDUM DECISION

       Petitioner Yeshiareg Mulugeta, by counsel Gregory A. Bailey, appeals the August 23,
2018, order of the Circuit Court of Berkeley County that denied her motion to reconsider its order
dismissing her appeal of the Family Court of Berkeley County’s January 19, 2018, order that
recalculated her spousal support award in this divorce case. Respondent Dimitri Misailidis, by
counsel Cinda L. Scales, filed a response in support of the circuit court’s order.

        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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
West Virginia Rules of Appellate Procedure and is appropriate for a memorandum decision rather
than an opinion. For the reasons expressed below, the decision of the circuit court is reversed, and
this case is remanded to the circuit court with directions to reinstate petitioner’s appeal of the
family court’s January 19, 2018, order, and to rule on the merits of that appeal.

        Respondent filed a petition for divorce following the parties’ lengthy marriage. The family
court granted the divorce and awarded petitioner permanent spousal support. Petitioner appealed
the amount of that award. By order entered April 15, 2016, the circuit court affirmed the family
court’s final order. Petitioner appealed the circuit court’s order to this Court. We held that
petitioner’s spousal support award was “patently unfair.” Mulugeta v. Misailidis, 239 W. Va. 404,
411, 801 S.E.2d 282, 289 (2017). Accordingly, we affirmed in part, reversed in part, and remanded
the case to the family court for a hearing on spousal support. On remand, the family court increased
petitioner’s monthly spousal support award by order entered January 19, 2018.

         On February 20, 2018, petitioner timely appealed the family court’s order to the circuit
court. Petitioner argued that the family court’s spousal support award was inadequate and
contradicted this Court’s instructions in Mulugeta. Petitioner gave respondent additional time to
file a response. Respondent filed his response on March 23, 2018.

        Almost four months later, on Friday, July 13, 2018, the circuit court issued an order
directing petitioner “to file a DVD copy of the family court’s hearing to the circuit court’s mail

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receptacle within twenty-one days.” Therefore, the DVD was due to the circuit court by Friday,
August 3, 2018. Petitioner’s counsel requested the DVD copy from the Berkeley County Family
Court on Friday, July 27, 2018, seven days before it was due, and two weeks after the circuit court
issued its Friday, July 13, 2018, order.

         By order entered Monday, August 6, 2018, the circuit court, which had not yet received
the DVD, dismissed petitioner’s appeal because her counsel failed to deliver the DVD by Friday,
August 3, 2018. On Wednesday, August 8, 2018, petitioner’s counsel hand-delivered the DVD to
the circuit court, three business days after it was due. Petitioner’s counsel also filed a motion asking
the circuit court to reconsider its August 6, 2018, order dismissing petitioner’s petition for appeal.

        On August 23, 2018, the circuit court denied petitioner’s motion to reconsider its dismissal
of her appeal. The circuit court found, in total, as follows:

               By letter dated July 27, 2018[,] to Family Court Judge Sally Jackson,
       [petitioner’s] counsel requested the DVD copy of the underlying hearing. Pursuant
       to Rule 5(b) of the Rules of Practice and Procedure for Family Court, “[a] party
       may obtain a copy of a recording of the proceedings in the party’s case by filing
       with the circuit clerk a written request . . . .” The Family Court Circuit Clerk’s
       Office received the July 27, 2018[,] correspondence on August 2, 2018[,] and the
       request was completed on August 6, 2018, after the court-imposed deadline of
       August 3, 2018.

               The Court finds that the delay in [petitioner’s] counsel providing this Court
       with the recording is not due to any dilatory action on the part of the Family Court
       Circuit Clerk’s Office. The Family Court Circuit Clerk’s Office provided the
       recording to [petitioner’s] counsel in less than two (2) business days. The Court
       finds that the delay was caused by [petitioner’s] counsel waiting two (2) weeks to
       request the recording after the July 13, 2018[,] Order was entered directing
       [petitioner] to provide the recording in twenty-one [21] days.

       Petitioner now appeals the August 23, 2018, order denying her motion to reconsider the
dismissal of her appeal. The Court reviews the imposition of sanctions by a circuit court under an
abuse of discretion standard. See generally Syl. Pt. 1, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165,
332 S.E.2d 127 (1985).

        On appeal, petitioner argues that the circuit court abused its discretion by dismissing her
petition for appeal as a sanction for her counsel’s failure to supply the circuit court with a DVD
recording of the family court hearing within twenty-one days.1



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         Petitioner also argues the merits of her appeal, that the family court abused its discretion
by awarding spousal support in an amount that violates the holding and order of remand in
Mulugeta v. Misailidis, 239 W. Va. 404, 406, 801 S.E.2d 282, 284 (2017). Given that the circuit
court did not address the merits of petitioner’s appeal in the order on appeal, we decline to address
petitioner’s arguments in this regard.
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       We have held that the

                [i]mposition of sanctions of dismissal and default judgment for serious
       litigation misconduct pursuant to the inherent powers of the court to regulate its
       proceedings will be upheld upon review as a proper exercise of discretion when
       trial court findings adequately demonstrate and establish willfulness, bad faith or
       fault of the offending party.

Syl. Pt. 7, State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders, 226 W. Va.
103, 697 S.E.2d 139 (2010).

       We also established the following test to determine whether a court-imposed sanction is
appropriate:

               In formulating the appropriate sanction, a court shall be guided by equitable
       principles. Initially, the court must identify the alleged wrongful conduct and
       determine if it warrants a sanction. The court must explain its reasons clearly on
       the record if it decides a sanction is appropriate. To determine what will constitute
       an appropriate sanction, the court may consider the seriousness of the conduct, the
       impact the conduct had in the case and in the administration of justice, any
       mitigating circumstances, and whether the conduct was an isolated occurrence or
       was a pattern of wrongdoing throughout the case.

Id. at syl. pt. 6, 226 W. Va. at 106, 697 S.E.2d at 142.

        As shown above, the circuit court, in its order dismissing petitioner’s appeal, said only that
the circuit clerk did not cause the delay, and that petitioner’s counsel did not file his request for
the DVD until one week before it was due. Accordingly, the circuit court failed to identify how
petitioner’s counsel’s conduct affected the administration of justice, or to discuss whether
counsel’s dilatory conduct was isolated or a pattern of wrongdoing under Syllabus Point 6 of
Richmond American Homes. The circuit court also failed to address whether petitioner’s counsel’s
actions “demonstrate[d] and establish[ed] willfulness, bad faith or fault” under Syllabus Point 7 of
Richmond American Homes.

       In Syllabus Point 1 of Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996), we held
that

               [t]he Due Process Clause of Section 10 of Article III of the West Virginia
       Constitution requires that there exist a relationship between the sanctioned party’s
       misconduct and the matters in controversy such that the transgression threatens to
       interfere with the rightful decision of the case. Thus, a court must ensure any
       sanction imposed is fashioned to address the identified harm caused by the party’s
       misconduct.

We have also said, “dismissal and default are drastic sanctions that should be imposed only in
extreme circumstances[.]” Cattrell Cos. Inc. v. Carlton, Inc., 217 W. Va. 1, 14, 614 S.E.2d 1, 14

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(2005). Moreover, “dismissal, the harshest sanction, should be used sparingly and only after other
sanctions have failed to bring about compliance.” Doulamis v. Alpine Lake Prop. Owners Ass’n,
Inc., 184 W. Va. 107, 112, 399 S.E.2d 689, 694 (1990).

        Petitioner’s counsel waited two weeks to file a request for a DVD recording of the parties’
family court hearing. Petitioner’s counsel apologizes for the delay and takes the blame for the
circuit court’s late receipt of the DVD. Thus, we will presume that counsel’s request for the DVD
a week before it was due was, in fact, dilatory. As a result of counsel’s dilatory conduct, the circuit
court did not receive a copy of the DVD until three business days after it was due. That delay may
well have inconvenienced the circuit court. However, the circuit court’s drastic sanction of
dismissing petitioner’s appeal is not proportionate to her counsel’s conduct. Here, counsel’s delay
in requesting the DVD did not threaten to interfere with the rightful decision of the case. Nor was
there any evidence to suggest that counsel’s conduct was willful, in bad faith, displayed a pattern
of wrongdoing throughout the case, was an “extreme circumstance,” or that “other sanctions have
failed to bring about compliance.” Accordingly, we find the circuit court clearly abused its
discretion by imposing the drastic sanction of dismissing petitioner’s appeal because that sanction
does not comport with any inconvenience caused by counsel’s delay in requesting the DVD.

        For the foregoing reasons, we reverse the circuit court’s August 23, 2018, order that denied
petitioner’s motion to reconsider its dismissal of the family court’s January 19, 2018, order. We
remand the case to the circuit court with directions to reinstate petitioner’s appeal of the Family
Court’s January 19, 2018, order, and to rule on the merits of the appeal.

                                                                            Reversed and remanded.

ISSUED: January 13, 2020

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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