                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Thomas B.,                                                                         FILED
Petitioner Below, Petitioner                                                    February 22, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs.) No. 11-1454 (Kanawha County 99-D-2310)                                    OF WEST VIRGINIA



Bureau for Child Support Enforcement and
Kiyomi J., Respondents Below,
Respondents

                               MEMORANDUM DECISION

        Petitioner Thomas B., pro se, appeals the circuit court’s September 29, 2011 order refusing
his appeal from the family court’s July 29, 2011 order denying his petition for modification of
child support, because support had already been set at the statutory minimum, and finding that
there were no issues requiring the appointment of a Guardian ad litem for petitioner as a person
under a disability. Respondent Bureau for Child Support Enforcement (“BCSE”), by Kimberly D.
Bentley, its attorney, filed a response to which petitioner filed a reply.1

       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 Revised Rules of Appellate
Procedure.

        Petitioner was first adjudicated the father of the minor child in this case in 2000.2 By an
order entered July 7, 2000, the Circuit Court of Kanawha County adjudged petitioner to be the
father by default and set his child support obligation at $188 per month.

       On February 13, 2009, the BSCE filed a petition for modification of child support in the
Family Court of Kanawha County noting that petitioner was incarcerated3 and that his projected

1
    The respondent mother did not file a response.
2
    The child was born on October 24, 1999.
3
 See Syl. Pt. 6, Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007) (“The support obligation
of an incarcerated person should be set in light of that person’s actual earnings while incarcerated
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release date was likely greater than six months from the filing of its modification petition.4 During
the pendency of its petition, the BSCE also presented the family court with petitioner’s request that
genetic testing be performed.

        By an order entered April 27, 2009, the family court reduced petitioner’s child support
obligation to $50 per month finding that “[s]ince the [July 7, 2000,] order was entered, there has
been a significant change in circumstances as father is currently incarcerated.” The family court
further ordered that petitioner’s support obligation shall automatically revert back to $188 per
month once he is released from incarceration and that judgment on arrears shall be held in
abeyance. By an order entered August 13, 2009, the family court confirmed petitioner’s paternity
of the minor child finding that “paternity test results . . . were filed which show a statistical
probability of paternity of 99.99%.”

        On June 2, 2011, petitioner filed a petition for modification of child support asserting that
his child support obligation should be set at $0 per month because of his incarceration. He also
filed for a motion for a Guardian ad litem to be appointed on his behalf.

        The family court conducted a hearing on petitioner’s modification petition on July 18,
2011, at which the BCSE appeared by counsel and petitioner appeared, pro se, via telephone. The
respondent mother did not appear. The family court denied both petitioner’s petition and his
motion for a Guardian ad litem finding that “[c]hild support is already set at the statutory
minimum[5] and there are no legal issues requiring the appointment of a guardian ad litem.”
Petitioner appealed to the circuit court which refused his appeal.




and other assets of the incarcerated person practically available to provide such support.”).
4
 According to the BCSE, petitioner became incarcerated around August of 2007, and that it was
not advised of his incarceration until December of 2008.
5
  “[T]he Legislature has made clear that child support obligations continue even when a parent is
imprisoned.” Adkins v. Adkins, 221 W.Va. 602, 607, 656 S.E.2d 47, 52 (2007) (citing W.Va. Code
§ 25-1-3c) (footnote omitted). In addition, West Virginia Code § 48-13-302 provides as follows:

               If combined adjusted gross income is below five hundred fifty
               dollars per month, which is the lowest amount of income considered
               in the table of monthly basic child support obligations set forth in
               subsection (a) of this section, the basic child support obligation shall
               be set at fifty dollars per month or a discretionary amount
               determined by the court based on the resources and living expenses
               of the parents and the number of children due support.

(emphasis added).
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                                    STANDARD OF REVIEW

        In Syllabus Point One of Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007), this Court
held as follows:

               “In reviewing a final order of a family court judge that is appealed
               directly to this Court, we review findings of fact by a 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,] May v. May, 214 W.Va. 394,
               589 S.E.2d 536 (2003).


           DENIAL OF PETITIONER’S MOTION FOR A GUARDIAN AD LITEM

        Petitioner argues that the family court erred in denying his motion to be appointed a
Guardian ad litem, citing, inter alia, State ex rel. Lawson v. Wilkes, 202 W.Va. 34, 38, 501 S.E.2d
470, 474 (1998) (“Rule 17(c) of the West Virginia Rules of Civil [P]rocedure requires, in relevant
part, the appointment of a guardian ad litem for a convict not otherwise represented in an action.”)
(footnote omitted). However, this Court in Lawson reiterated that “[i]n the absence of an express
written waiver of his right to a committee under W.Va. Code, 28-5-36, or a guardian ad litem
under Rule 17(c) of the West Virginia Rules of Civil Procedure, a suit cannot be directly
maintained against a prisoner. [citations omitted]” 202 W.Va. at 38, 501 S.E.2d at 474 (emphasis
by the Court). The BSCE notes that petitioner was the party who filed the petition, so he was the
one bringing the instant proceeding. The BSCE further notes that petitioner appeared at the hearing
on his petition via telephone. See Syl. Pt. 2, in part, Quesinberry v. Quesinberry, 191 W.Va. 65,
443 S.E.2d 222 (1994) (Under Rule 17(c), “the appointment of a guardian ad litem for an
incarcerated convict in a civil action is not mandatory if the court can reasonably order another
appropriate remedy while the convict remains under the legal disability of incarceration.”).
Therefore, after careful consideration of the parties’ arguments, this Court concludes that the
family court did not abuse its discretion in denying petitioner’s motion to be appointed a Guardian
ad litem.

                         DENIAL OF PETITIONER’S PETITION FOR

                           MODIFICATION OF CHILD SUPPORT


         Petitioner asserts that the monthly “gratuity” he receives for his prison work assignment is
less than the minimum child support payment and is not considered income under the applicable
statute. Petitioner argues that under Adkins, supra, his pre-incarceration income from employment
earnings cannot be attributed as income for child support purposes while he is incarcerated.
Petitioner notes that the respondent mother has been able to claim the dependent child exemption
on her income tax returns. Petitioner states that for 2010, that exemption was $3,650. Petitioner
asserts that $3,650 easily exceeds his total earnings since 2009. Petitioner further asserts the fact
that there is a child support obligation he cannot meet exposes him to the termination of his
parental rights. In response, the BCSE argues that termination of parental rights is not a direct
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consequence of a failure to pay child support. The BCSE argues that this Court recognized in
Adkins that the legislature intended child support obligations to continue even when a parent is
incarcerated. The BCSE also informs that petitioner has been making almost monthly payments
since 2009. While it is not the full amount petitioner owes, the BCSE states that it has received
payments of $18.36 per month from prison officials. Therefore, after careful consideration of the
parties’ arguments, this Court concludes that the family court did not abuse its discretion in
denying petitioner’s petition for modification of child support.

        For the foregoing reasons, we find no error in the decision of the Family Court of Kanawha
County. The September 19, 2011 order of the Circuit Court of Kanawha County refusing
petitioner’s appeal of the family court’s July 29, 2011 order denying his petition for modification
of child support because support had already been set at the statutory minimum, and finding that
there were no issues requiring the appointment of a Guardian ad litem, is affirmed.

                                                                                        Affirmed.


ISSUED: February 22, 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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