                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


James L.,                                                                        FILED
Petitioner Below, Petitioner
                                                                            February 21, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0261 (Kanawha County 12-D-235)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Carrie L.,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner James L.1 (hereinafter “petitioner husband”), by counsel Clinton W. Smith,
appeals the Circuit Court of Kanawha County’s February 18, 2016, order denying his petition for
appeal from an order of the Family Court of Kanawha County. Respondent Carrie L. (hereinafter
“respondent wife”), by counsel William W. Pepper, filed a response in support of the circuit
court’s order. Petitioner husband filed a reply. On appeal, petitioner husband argues that the
circuit court erred in denying his petition for appeal.

        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 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 April of 2013, the family court entered its final divorce order in which petitioner
husband was ordered to pay respondent wife $3,315 per month for fourty-eight months in
rehabilitative alimony “to fund four years of education at the University of Charleston in
radiologic science.” The order further stated that terms were not subject to modification.
Thereafter, petitioner husband appealed the family court’s final order alleging that he did not
have the ability to pay rehabilitative alimony. By order entered on August 8, 2013, the circuit
court affirmed the family court’s order finding that the family court properly applied the factors
found in West Virginia Code § 48-6-301(b).2

       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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       2
         West Virginia Code § 48-6-301(b) sets the following factors that shall be considered by
the circuit court:

                                                                                   (continued . . .)
                                                1
(b) The court shall consider the following factors in determining the amount of
spousal support, child support or separate maintenance, if any, to be ordered
under the provisions of parts 5 and 6, article five of this chapter, as a supplement
to or in lieu of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived
together as husband and wife;
(3) The present employment income and other recurring earnings of each party
from any source;
(4) The income-earning abilities of each of the parties, based upon such factors as
educational background, training, employment skills, work experience, length of
absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under the terms of a separation
agreement or by the court under the provisions of article seven of this chapter,
insofar as the distribution affects or will affect the earnings of the parties and their
ability to pay or their need to receive spousal support, child support or separate
maintenance: Provided, That for the purposes of determining a spouse’s ability to
pay spousal support, the court may not consider the income generated by property
allocated to the payor spouse in connection with the division of marital property
unless the court makes specific findings that a failure to consider income from the
allocated property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic, education or
employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support, child support or
separate maintenance can substantially increase his or her income-earning
abilities within a reasonable time by acquiring additional education or training;
(11) Any financial or other contribution made by either party to the education,
training, vocational skills, career or earning capacity of the other party;
(12) The anticipated expense of obtaining the education and training described in
subdivision (10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the parties and their minor
children;
(15) The tax consequences to each party;
(16) The extent to which it would be inappropriate for a party, because said party
will be the custodian of a minor child or children, to seek employment outside the
home;
(17) The financial need of each party;

                                                                               (continued . . .)
                                           2

        Thereafter, petitioner husband filed a petition for modification arguing that he should not
be required to pay rehabilitative alimony because there had been a significant change in
circumstances. Specifically, petitioner husband asserted that his income had significantly
decreased and that respondent wife failed to further her education. Following a hearing, the
family court denied petitioner husband’s motion for modification by order entered on July 17,
2014. The family court found that (1) the rehabilitative alimony was not subject to modification;
(2) the doctrine of res judicata barred the court from addressing whether rehabilitative alimony is
reviewable; (3) no significant change in circumstances had occurred; and (4) petitioner
husband’s arrearage of $15,563.78 barred any modification. Subsequently, petitioner husband
appealed the family court’s July 17, 2014, order to the circuit court. By order entered on
September 4, 2014, the circuit court remanded the matter back to the family court “with
instructions to hear evidence on and consider the factors outlined in West Virginia Code § 48-8­
105.”3

        In April of 2015, the family court scheduled a hearing on remand as directed by the
circuit court. Petitioner husband requested a continuance and the parties selected August 12,
2015, as the new hearing date. On July 24, 2015, petitioner husband’s counsel filed a motion to
withdraw. Pursuant to Rule 4.03 of the Trial Court Rules, counsel specifically informed
petitioner husband that “the dates of any proceedings . . . will not be affected by the withdrawal
of counsel[.]” Counsel also filed a separate motion to continue to allow petitioner husband time
to obtain different counsel. By order entered on July 28, 2015, the family court granted counsel’s



       (18) The legal obligations of each party to support himself or herself and to
       support any other person;
       (19) Costs and care associated with a minor or adult child’s physical or mental
       disabilities; and
       (20) Such other factors as the court deems necessary or appropriate to consider in
       order to arrive at a fair and equitable grant of spousal support, child support or
       separate maintenance.
       3
           West Virginia Code § 48-8-105 provides

                 The court may modify an award of rehabilitative spousal support if a
                 substantial change in the circumstances under which rehabilitative spousal
                 support was granted warrants terminating, extending or modifying the
                 award or replacing it with an award of permanent spousal support. In
                 determining whether a substantial change of circumstances exists which
                 would warrant a modification of a rehabilitative spousal support award,
                 the court may consider a reassessment of the dependent spouse’s potential
                 work skills and the availability of a relevant job market, the dependent
                 spouse's age, health and skills, the dependent spouse's ability or inability
                 to meet the terms of the rehabilitative plan and other relevant factors as
                 provided for in section 8-103 of this article.



                                                  3

motion to withdraw. Importantly, the circuit court did not enter an order with respect to counsel’s
motion to continue.

        Thereafter, the family court held a hearing on August 12, 2015, as previously agreed to
by the parties. Petitioner husband did not appear in person or by counsel. The family court heard
testimony and reviewed several exhibits. After considering the relevant factors for spousal
support in West Virginia Code § 48-6-301, the family court found that respondent wife proved a
legitimate reason for rehabilitative spousal support for forty-eight months. Based upon the
evidence, the family court reduced the monthly award from $3,315 to $2,000 for forty-eight
months.4 In September of 2015, petitioner husband filed a petition for appeal with the circuit
court from the family court’s final order. Petitioner husband argued that the family court abused
its discretion in denying his motion to continue. Petitioner husband also argues that the family
court failed to consider the factors in West Virginia Code § 48-8-105, specifically, respondent
wife’s ability to meet the terms of the rehabilitative plan. By order entered on February 18, 2016,
the circuit court denied petitioner husband’s appeal. The circuit court found “that the findings of
fact made by the family court judge are not erroneous and his application of the law to said facts
is not an abuse of his discretion.” This appeal followed.

       In reviewing the circuit court’s order in this matter, this Court employs 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.” Syllabus, Carr v. Hancock, 216
       W.Va. 474, 607 S.E.2d 803 (2004).

Syl. Pt. 1, Ware v. Ware, 224 W.Va. 599, 600, 687 S.E.2d 382, 384 (2009).

        On appeal, petitioner husband argues that the family court erred in denying his motion to
continue the August 12, 2015, hearing. This Court has long held that “[i]t is well settled as a
general rule that the question of continuance is in the sound discretion of the trial court, which
will not be reviewed by the appellate court, except in case it clearly appears that such discretion
has been abused.” Syl. Pt. 1, Levy v. Scottish Union & Nat’l Ins. Co., 58 W.Va. 546, 52 S.E. 449
(1905).

       Upon review of the record on appeal, we find no abuse of discretion. Petitioner husband
agreed to the August 12, 2015, hearing date during the April of 2015, hearing at which he was
present. Furthermore, petitioner husband had approximately nineteen days from the date in

       4
         The family court also granted respondent wife a judgment against petitioner husband in
the amount of $62,155.96 for unpaid spousal support, and held petitioner husband in contempt
for leaving the State with the parties two oldest children without first filing notices of relocation.



                                                  4

which his counsel filed the motion to withdraw and the motion to continue to allow petitioner
husband time to secure new counsel. Importantly, counsel’s motion to withdraw complied with
Rule 4.03 of the Trial Court Rules and explicitly notified petitioner husband “that the dates of
any proceedings . . . will not be affected by the withdrawal of any counsel.”5 For these reasons,
we conclude that the family court did not abuse its discretion in denying petitioner husband’s
motion for a continuance.

       Petitioner husband also argues that the circuit court erred in denying his petition for
appeal because the family court failed to consider the appropriate factors in West Virginia Code
§ 48-8-105, on remand from the circuit court. We disagree. West Virginia Code § 48-8-105(b)
provides

       [t]he court may modify an award of rehabilitative spousal support if a substantial
       change in the circumstances under which rehabilitative spousal support was
       granted warrants terminating, extending or modifying the award or replacing it
       with an award of permanent spousal support. In determining whether a substantial
       change of circumstances exists which would warrant a modification of a
       rehabilitative spousal support award, the court may consider a reassessment of the
       dependent spouse’s potential work skills and the availability of a relevant job
       market, the dependent spouse’s age, health and skills, the dependent spouse’s
       ability or inability to meet the terms of the rehabilitative plan . . . .

         In reducing respondent wife’s rehabilitative spousal support from $3,315 to $2,000 for
forty-eight months, the family court considered respondent wife’s age, health, and skills; work
skills; and her inability to meet the terms of the rehabilitative plan. The family court found that
“without spousal support sufficient to fund that education, [her] educational qualifications are
not such to allow her to have gainful employment.” Furthermore, the family court made
extensive findings of the relevant statutory factors pursuant to West Virginia Code § 48-6-301(b)
before reducing respondent wife’s rehabilitative spousal support. See Ward v. Ward, 233 W.Va.
108, 117-18, 755 S.E.2d 494, 503-04 (2014) (stating that “[i]n assessing whether to award
rehabilitative alimony, the circuit court properly focused upon all of the relevant statutory factors
[in West Virginia Code § 48-6-301(b).]” Because the family court thoroughly examined these
factors, we find that the family court did not abuse its discretion.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: February 21, 2017




       5
        Rule 57(a) of the Rules of Practice and Procedure for Family Court states that “Rule
4.03(b) of the Trial Court shall govern the withdrawal of counsel.”



                                                 5

CONCURRED IN BY:

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




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