                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jarrell Gay Scott,                                                                 FILED
Petitioner Below, Petitioner                                                     November 22, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-0823 (Kanawha County 12-MISC-260)                                    OF WEST VIRGINIA



Honorable Mike Kelly, Judge of the Family
Court of Kanawha County; and Christy Dawn
Cline, formerly Scott,
Respondents Below, Respondents


                               MEMORANDUM DECISION
        Petitioner Jarrell Gay Scott, by counsel, Duane C. Rosenlieb Jr., appeals the May 29,
2012, order of the Circuit Court of Kanawha County denying his petition for a writ of prohibition
against Kanawha Family Court Judge Mike Kelly. Respondent Christy Dawn Cline did not file a
responsive pleading.1

       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 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.

                         FACTUAL AND PROCEDURAL HISTORY

       Petitioner and Respondent Cline were divorced by final order of the circuit court entered
May 4, 1993.2 The circuit court awarded Respondent Cline reimbursement for medical expenses,
her share of a checking account balance, attorney’s fees, and costs in the final divorce action.

       1
         Rule 10(d) of the Rules of Appellate Procedure provides that if a respondent’s brief fails
to respond to an assignment of error, this Court will assume that the respondent agrees with the
petitioner’s view of the issue. Respondent has failed to file any responsive brief with this Court.
However, as set forth herein, petitioner’s brief and our review of the record have failed to
convince us that reversal is appropriate. Accordingly, we decline to rule in petitioner’s favor
because respondent failed to file a brief. Cf. Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d
1 (1991) (recognizing that the Court is not obligated to accept the State’s confession of error in a
criminal case; instead, the Court will conduct a proper analysis).
       2
         At the time the circuit court entered this order, the current family court system was not
in existence. “Effective January 1, 2002, the Legislature significantly revamped the family courts
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        Over the nearly two decades since such award was made, petitioner has paid nothing to
satisfy that award. On November 13, 2011, Respondent Cline filed a petition for contempt in the
family court seeking to collect on the judgment. Respondent Cline attached a copy of the divorce
order to her petition, as well as an abstract of execution in the amount of $10,011 issued by the
clerk on August 3, 2006. Judge Kelly issued a “Notice of Contempt Hearing/Rule to Show
Cause” on November 11, 2011, which set a hearing for December 19, 2011. Both parties
appeared pro se, and the matter was rescheduled until January 20, 2012, for a final hearing.
Petitioner retained counsel and filed a motion to dismiss arguing that although an abstract of
judgment had been obtained and entered by the circuit clerk, it was for the wrong amount and it
did not toll the statute of limitations on the enforcement of judgments defined in West Virginia
Code § 38-3-18 because an execution of judgment was not obtained, served, and returned within
ten years following the judgment.

        The matter came on for hearing on January 20, 2012. On February 2, 2012, Judge Kelly
entered an order denying petitioner’s motion to dismiss. Judge Kelly found that Respondent
Cline had met all the required statutory criteria to preserve her judgment. He set the matter for
further proceedings on March 21, 2012, and specifically found that his order was not “a final
order.”

        Thereafter, on March 8, 2012, petitioner filed a petition for writ of prohibition in circuit
court, arguing that the judgment obtained by Respondent Cline had not tolled the ten-year statute
of limitations, and asking that Judge Kelly’s order be set aside. Judge Kelly filed a letter
response. The circuit court issued an order granting the writ of prohibition, and referred the case
back to Judge Kelly for further hearing.

       On March 21, 2012, the parties appeared before Judge Kelly. At that time, Judge Kelly
presented counsel with five exhibits, each documenting some aspect of Respondent Cline’s
judgment against petitioner. In addition, Respondent Cline’s counsel presented a calculation
purporting to show that petitioner’s actual amount of principal and interest on the 1993 judgment
was $18,813.

       On May 10, 2012, petitioner filed a second writ of prohibition asserting that family court
lacked jurisdiction to hear the enforcement of Respondent Cline’s judgment in a contempt
proceeding.

        On May 11, 2012, the matter was convened again before the family court. On May 14,
2012, Judge Kelly entered an order finding petitioner in contempt, and granting a stay pending
appeal. The May 14, 2012, family court order granted judgment against petitioner in the amount
of $6,511, plus interest in the amount of $12,302, for a total judgment of $18,813. The appendix




of West Virginia by replacing the family law master system with a new system of family court
judges.” Delapp v. Delapp, 213 W.Va. 757, 759 n.2, 584 S.E.2d 899, 901 n.2 (2003) (citations
omitted).


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record does not reflect whether petitioner appealed the May 14, 2012, decision to circuit court.3

        Judge Kelly filed a letter response to the circuit court on May 24, 2012, stating that
family court had jurisdiction over this matter even though the 1993 circuit court order was
entered prior to the creation of the family courts. He maintained that the case was “transferred to
the jurisdiction of the family court” by operation of Rule 3(b) of the Rules of Practice and
Procedure for Family Courts. Judge Kelly also stated that family courts have jurisdiction to hear
petitions for contempt pursuant to West Virginia Code § 51-2A-9, titled “Contempt Powers of
Family Court Judge.” 4

        On May 29, 2012, the circuit court denied petitioner’s writ of prohibition and held that
family courts have jurisdiction to hear petitions for contempt pursuant to West Virginia Code §
51-2A-9. Petitioner appeals this ruling and requests that we remand the matter for entry of an
order dismissing the petition for contempt.

                                         DISCUSSION

                                      Standard of Review



       3
         In his brief, petitioner argues that the statute of limitations expired on enforcing the
judgment, citing Syllabus Point 4 of State ex rel. West Virginia Department of Human Resources
v. Varney, 221 W.Va. 517, 655 S.E.2d 539 (2007). We decline to address this argument. If
petitioner did appeal the May 14, 2012, judgment order to circuit court, that issue is not before
this Court at this time.
       4
           West Virginia Code § 51-2A-9 states:

       Contempt Powers of Family Court Judge.
       (a) In addition to the powers of contempt established in chapter forty-eight [§§ 48-1-101
           et seq.] of this code, a family court judge may:
           (1) Sanction persons through civil contempt proceedings when necessary to preserve
               and enforce the rights of private parties or to administer remedies granted by the
               court;
           (2) Regulate all proceedings in a hearing before the family court judge; and
           (3) Punish direct contempts that are committed in the presence of the court or that
               obstruct, disrupt or corrupt the proceedings of the court.
       (b) A family court judge may enforce compliance with his or her lawful orders with
           remedial or coercive sanctions designed to compensate a complainant for losses
           sustained and to coerce obedience for the benefit of the complainant. Sanctions must
           give the contemnor an opportunity to purge himself or herself. In selecting sanctions,
           the court must use the least possible power adequate to the end proposed. A person
           who lacks the present ability to comply with the order of the court may not be
           confined for a civil contempt. Sanctions may include, but are not limited to, seizure or
           impoundment of property to secure compliance with a prior order. Ancillary relief
           may provide for an award of attorney’s fees.
                                                  3

        The sole issue in this appeal is whether the circuit court erred by denying petitioner’s
petition for a writ of prohibition. This Court has held that:

       “‘Prohibition lies only to restrain inferior courts from proceeding in causes over
       which they have no jurisdiction, or, in which, having jurisdiction, they are
       exceeding their legitimate powers and may not be used as a substitute for writ of
       error, appeal or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75
       S.E.2d 370 (1953).” Syl. Pt. 1, State ex rel. Richmond Am. Homes of W.Va., Inc.
       v. Sanders, 226 W.Va. 103, 697 S.E.2d 139 (2010).

Syl. Pt. 2, State ex rel. Wooten v. Coal Mine Safety Board of Appeals, 226 W.Va. 508, 703
S.E.2d 280 (2010). We also look to our standard of review applicable to this matter:

       “The standard of appellate review of a circuit court’s refusal to grant relief
       through an extraordinary writ of prohibition is de novo.” Syl. Pt. 1, State ex rel.
       Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001).

Syl. Pt. 1, Wooten.

                                      The Family Court System

        To resolve the issue of whether the family court had jurisdiction in this matter, we begin
our discussion with a brief overview of the development of our current family court system. In
State ex rel. West Virginia Department of Health and Human Resources v. Wertman, 210 W.Va.
366, 369-70, 557 S.E.2d 773, 776-77 (2001) (footnote omitted), this Court explained that

       [p]rior to the ratification on November 7, 2000, of the Unified Family Court
       Amendment to the state constitution, Article VIII, Section 1 of the West Virginia
       Constitution provided the sole definition of the courts and judicial officers in the
       state:

                       The judicial power of the State shall be vested solely in a
               supreme court of appeals and in the circuit courts, and in such
               intermediate appellate courts and magistrate courts as shall be
               hereafter established by the legislature, and in the justices, judges
               and magistrates of such courts.

       W.Va. Const. art. VIII, § 1.

       The Unified Family Court Amendment to the state constitution added family
       courts to the judicial structure of the state by appending the following provision to
       Article VIII:
                       There is hereby created under the general supervisory
               control of the supreme court of appeals a unified family court
               system in the state of West Virginia to rule on family law and
               related matters. Family courts shall have original jurisdiction in the

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               areas of family law and related matters as may hereafter be
               established by law. Family courts may also have such further
               jurisdiction as established by law.

                        Family court judges shall be elected by the voters for a
               term prescribed by law not to exceed eight years, unless sooner
               removed or retired as authorized in this article. Family court judges
               must be admitted to practice law in this state for at least five years
               prior to their election. Family court judges shall reside in the
               circuit for which he or she is a judge.

                       The necessary number of family court judges, the number
               of family court circuits and the arrangement of circuits shall be
               established by law. Staggered terms of office for family court
               judges may also be established by law.

                       The supreme court of appeals shall have general
               supervisory control over all family courts and may provide for the
               assignment of a family court judge to another court for temporary
               service. The provisions of section seven and eight of this article
               applicable to circuit judges shall also apply to family court judges.

       W.Va. Const. art. 8, § 16.

        With the ratification of the Unified Family Court Amendment, family court judges have
judicial officer status, and they may now conduct contempt hearings for which they may enter
and enforce orders. Id. See also W.Va. Code § 51-2A-9. We note that “[e]ffective January 1,
2002, all family court cases pending before the circuit court” were transferred to the jurisdiction
of the family court pursuant to Rule 3(b) of the West Virginia Rules of Practice and Procedure
for Family Court.

                                    Family Court’s Jurisdiction

       Considering the foregoing, we find that Judge Kelly did have jurisdiction to address
Respondent Cline’s petition for contempt. The family court judges are “vested with judicial
power to entertain and resolve cases involving certain domestic relations matters.” Wertman, 210
W.Va. at 371, 557 S.E.2d at 778.

        Petitioner urges this Court to find an exception in this case because the circuit court
issued the 1993 final order prior to the enactment of the family court system. We are not
persuaded by his argument that the case did not transfer to the family court system because it
was not technically “pending,” considering the final order. In Ray v. Ray, 216 W.Va. 11, 602
S.E.2d 454 (2004), this Court addressed a similar factual scenario. In Ray, the parties were
divorced by a final order entered by the circuit court in 2000, prior to the enactment of the family
court system. The circuit court entered a subsequent final order in 2001 that obligated Mr. Ray to
pay monthly child support. Thereafter, Mr. Ray filed a petition to modify the child support award

                                                 5

in the family court. This Court found that the family court would have jurisdiction to hear a
petition for modification of the final order pursuant to West Virginia Code § 51-2A-10(a), if it
was filed properly:5

       Although the final order was entered by the circuit court, and not the family court,
       W.Va. Code § 51-2A-10(a) could have been used because “[e]ffective January 1,
       2002, all family court cases pending before the circuit court, whether on review of
       recommended order or otherwise, [were] transferred to the jurisdiction of the
       family court.” Rule 3(b), West Virginia Rules of Practice and Procedure for
       Family Court.

Id. 216 W.Va. at 14 n.10, 602 S.E.2d at 457 n.10. (Emphasis supplied).

       Similarly, we find that the family court had jurisdiction in this case to resolve Respondent
Cline’s petition for contempt seeking to collect payment on the 1993 judgment.

                                       Writ of Prohibition

        For the foregoing reasons, we affirm the order of the circuit court denying petitioner’s
petition for writ of prohibition. Petitioner’s dispute of the May 14, 2012, judgment order would
more appropriately be addressed by an appeal of that ruling to the circuit court. “This Court
looks with disfavor upon the use of the extraordinary writ process to address problems which
should have been handled by an appeal. The writ of prohibition is truly an extraordinary remedy,
one which should be reserved for extraordinary cases.” State ex rel. McGraw v. King, 229 W.Va.
365, 371 729 S.E.2d 200, 206 (2012).
                                                                                       Affirmed.

ISSUED: November 22, 2013

CONCURRED IN BY:

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

DISSENTING:

Justice Robin Jean Davis

       5
         In Ray, this Court went on to find that the family court lacked subject matter jurisdiction
to entertain the petition to modify because it was not properly filed: “Mr. Ray did not avail
himself of the relief permitted by W.Va. Code § 51-2A-10(a)” and instead “erroneously invoked
W.Va. Code § 48-11-105” to challenge a child support order before the expiration of the appeal
period. Ray v. Ray, 216 W.Va. 11, 14, 602 S.E.2d 454, 457 (2004).


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