                                    STATE OF WEST VIRGINIA
                                  SUPREME COURT OF APPEALS

                                                                                            FILED
    Walter B.,                                                                            December 16, 2013
                                                                                       RORY L. PERRY II, CLERK
    Petitioner Below, Petitioner                                                     SUPREME COURT OF APPEALS
     
                                                                                         OF WEST VIRGINIA 
     
    vs) No. 12-1467 (Webster County 10-D-75)
     
    Amanda B.,
    Respondent Below, Respondent


                                    MEMORANDUM DECISION
     

             Petitioner, Walter B., by counsel Shannon Thomas, appeals the October 25, 2012 order of the
    Circuit Court of Webster County, which affirmed the Family Court’s final order denying, in part, the
    petitioner's m otion for reconsideration. Respondent Amanda B., pro se, filed a response.
     
             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
    is appropriate under Rule 21 of the Rules of Appellate Procedure.
     
             On August 12, 2010, respondent filed a petition for divorce in the Family Court of Webster
    County on the grounds of irreconcilable differences. The parties consented to a divorce settlement
    agreement and the Family Court entered the divorce decree at the subsequent final hearing. The
    parties’ agreement provided, inter alia, that: respondent waive her right to alimony, respondent keep the
    marital home, petitioner pay child support in a given amount, petitioner pay all costs associated with the
    real property (including the home mortgage and utility payments), petitioner retain his truck and log
    truck, and petitioner pay one thousand dollars a month in child support.

             On April 1, 2011, respondent filed a petition for contempt asserting that petitioner was behind on
    utility payments required by the settlement agreement and resultant decree. Petitioner filed a response
    and a motion for reconsideration on June 30, 2011, on the ground that the divorce agreement w a s
    unconscionable. The family court reduced the child support payments and also relieved petitioner from
    making respondent’s utility payments. On July 25, 2012, petitioner filed a second motion for
    reconsideration to eliminate his obligation to make mortgage payments on respondent’s house. The
    motion was denied. On July 26, 2012, petitioner was held in contempt for continued failure to satisfy the
    mortgage payments. Petitioner filed a petition for appeal on July 26, 2012, in the Circuit Court of
    Webster County, and the circuit court refused the appeal by order entered on October 25, 2012.



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        We have held:

                 “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. Pt. 1, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
 
         Petitioner presents five assignments of error on appeal. First, petitioner argues that the circuit
court erred when it incorrectly affirmed the family court’s order in light of West Virginia Code § 48-7-
102 [2001] which states that “[i]n cases where the parties to an action commenced under the provisions
of this chapter have executed a separation agreement, then the court shall divide the marital property in
accordance with the terms of the agreement, unless the court finds: (1) That the agreement was obtained
by fraud, duress or other unconscionable conduct by one of the parties . . . [ o r ] (3) [The agreement]
is so inequitable as to defeat the purposes of this section, and such agreement was inequitable at the time
the same was executed.” The crux of petitioner’s first assignment of error is that the circuit court failed to
make the requisite finding that the parties’ agreement was fair and equitable.
 
         The facts in the present case indicate that petitioner had full access to the financial assets of his
spouse. Petitioner was given a complete financial statement of all the marital assets the couple owned.
Petitioner also assured the family court that the agreement had not been made under “ fraud, duress, or
other unconscionable conduct . . . .” The husband accepted the settlement proposed by respondent
despite being fully informed by the family court that the agreement raised some red flags and the court
was concerned with petitioner’s ability to meet the obligations. The family court informed petitioner that
once the order was entered, it would be difficult to reverse. Furthermore, t h e f a m i l y c o u r t gave
petitioner time to consult with an attorney, but notwithstanding that offer, petitioner accepted the
agreement. In reviewing the agreement, the circuit court needed only to find that the family court was
reasonable and did not abuse its discretion when approving the same. Therefore, we affirm the circuit
court’s holding that the agreement is not a violation of West Virginia Code § 48-7-102.
 
         Second, petitioner alleges that the circuit court erred by failing to provide him reasonable
representation. T h i s C ourt has held that “[t] he trial court must strive to insure that no person’s cause or
defense is defeated solely by reason of his unfamiliarity with procedural or evidentiary rules.” Syl. Pt. 2,
Bego v. Bego, 177 W.Va. 74, 76, 350 S.E.2d 701, 703 (1986). M o r e o v e r , “ [ t ] he court should strive .
. . to ensure that the diligent pro se party does not forfeit any substantial rights by inadvertent omission
or mistake. Cases should be decided on the merits, and to that end, justice is served by reasonably
accommodating all parties, whether represented by counsel or not.” Blair v. Maynard, 174 W.Va. 247,
253, 324 S.E.2d 391, 396 (1984).

        Here, the family court did everything possible to ensure that petitioner received a fair trial despite
being unrepresented. The family court judge provided several opportunities for petitioner to seek counsel
and advised petitioner to do so many times. The court informed the petitioner on numerous occasions
that he would have a difficult time making the proposed payments and that petitioner should not accept
the deal without first consulting counsel. Petitioner was asked if he thought it was a fair agreement; he

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said it was. The court even went so far as to tell petitioner he was paying too much in child support in
regard to the calculation set forth by state law. The record shows that petitioner was fully informed on all
aspects of the proceedings by the court and was not disadvantaged. Therefore, petitioner’s interests were
adequately represented.
 
         Third, petitioner argues that the circuit court erred by affirming the family court when it failed to
make modifications to the divorce decree retroactive to the date of the divorce action. We have held:

                The authority of a family court to modify a spousal support or child support
        award is prospective only and, absent a showing of fraud or other judicially cognizable
        circumstance in procuring the original award, a family court is without authority to
        modify or cancel accrued alimony or child support installments.

Syl. Pt. 2, Hayhurst v. Shepard, 219 W.Va. 327, 328, 633 S.E.2d 272, 273 (2006).
 
         There is no evidence in the record before us that respondent acted fraudulently. P etitioner knew or
should have known the payments of the divorce decree, along with the child support, and he willingly
entered into that agreement. It is notable that he only filed the first motion for reconsideration after his
circumstances had changed, making his ability to meet the obligations of the divorce decree difficult. The
lower court was correct in declining to modify the order retrospectively back to the time of the divorce.
 
         Fourth, petitioner alleges that the circuit court erred in affirming the family court order which
held petitioner in contempt without proper consideration for his ability to comply with the court order.
Petitioner claims he is unable to comply with the order. This Court has held “[w]here a contemnor alleges
financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to
comply with a court mandate in order to avoid imprisonment.” State ex rel. Zirkle v. Fox, 203 W.Va.
668, 669, 510 S.E.2d 502, 503 (1998). This Court has also stated that “[a] party may not ordinarily be
held in contempt for failure to perform an act that the party is unable to legally perform, if the evidence
establishes that the party's inability to legally perform the act is not the party’s fault.” Syl. Pt. 2, Watson
v. Sunset Addition Prop. Owners Ass'n, Inc., 222 W.Va. 233, 664 S.E.2d 118 (2008).

         Here, the evidence does not establish that petitioner was unable to comply with the order. The
record shows that petitioner had an employment opportunity which would pay twenty dollars an hour, an
amount more than sufficient to satisfy the family court order. Petitioner admitted to quitting the job after
two days, “more or less.” He also received an insurance check for $19,000 after a trucking accident, and
he used that money to pay off a debt related to the truck. The evidence showed petitioner had the ability
to pay but instead chose not to do so. The circuit court correctly affirmed the family court’s contempt
order.
 
        Lastly, petitioner argues the circuit court erred in affirming the family court which held him in
contempt for failure to make monthly house payments which were not mentioned in the pleadings. The
record shows that petitioner knew he would be responsible for the house mortgage because he admitted to
it. The record also shows that the original divorce agreement stated the husband would be responsible for
all costs associated with the real property, which included the house. Therefore, the circuit court was
correct in affirming the family court order because the mortgages were, in fact, mentioned in the
pleadings.

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      For the foregoing reasons, we find no error in the decision of the Circuit Court of Webster
County to affirm the family court's order.

                                                                                       Affirmed.

ISSUED: December 16, 2013

CONCURRED IN BY:

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



 
 
 
 
 
 
 
 
 




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