                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Carrie W., Petitioner Below,                                                       FILED
Petitioner                                                                      March 16, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-1329 (Taylor County 12-D-38)                                         OF WEST VIRGINIA


Steven W., Respondent Below,
Respondent


                              MEMORANDUM DECISION
        Petitioner Carrie W., by counsel Brian K. Carr, appeals the Circuit Court of Taylor
County’s November 19, 2013, order denying her petition for appeal from the Family Court of
Taylor County.1 Pro se respondent Steven W. filed a response and a supplemental appendix.
Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in denying her
petition for appeal.2

        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 our review, we believe that this case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision reversing the circuit court’s order. For the reasons expressed below,
this case is reversed and remanded to the circuit court for consideration on the merits of
petitioner’s allegations that the family court erred in denying her motion to reconsider and in
dismissing her second petition for contempt.

        In June of 2007, the parties were married in Flagler County, Florida. By April of 2011, the
parties and their minor child moved to Taylor County, West Virginia. Thereafter, the parties

       1
         “We follow our past practice in . . . cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. West Virginia Dept. of Human Services v. Cheryl M.,
177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987).
       2
         Petitioner actually alleges six assignments of error in her petition for appeal. However,
assignments of error one through four allege errors by the family court related to its “Final
Divorce Decree” entered on March 11, 2013, which petitioner did not timely appeal. As such,
these assignments of error have been waived and will not be addressed in this memorandum
decision. As more fully addressed below, this Court’s decision is limited to the two assignments
of error related to the orders that were timely appealed; namely, petitioner’s allegation that the
circuit court erred in denying her appeal as it related to the family court’s orders on her motion to
reconsider and her second petition for contempt.
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separated in November of 2011 while living in Taylor County. In April of 2012, petitioner filed a
petition for divorce in the Family Court of Taylor County. The parties both cited irreconcilable
differences as a basis for divorce and agreed to an equitable distribution of marital assets and
debts. The main issue for the family court was to determine an appropriate parenting plan for the
parties’ minor child. Ultimately, the family court entered its “Final Divorce Decree” on March 11,
2013. Petitioner did not appeal this order to the circuit court.

        In June of 2013, petitioner filed her second petition for contempt in the family court.
Petitioner then filed a motion for reconsideration of the “Final Divorce Decree” in the family
court in September of 2013. On October 3, 2013, the family court entered two orders; one
dismissing the petition for contempt and one denying the motion for reconsideration.

        In November of 2013, petitioner filed a petition for appeal in the circuit court. According
to the circuit court, petitioner appealed the family court’s two orders, both issued on October 3,
2013, denying her motion for reconsideration and dismissing her petition for contempt.
Ultimately, the circuit court denied petitioner’s appeal, ruling that neither of the orders on appeal
were final orders, as required by Rule 28(a) of the Rules of Practice and Procedure for Family
Court. It is from this order that petitioner now appeals.

        We have previously established the following standard of review:

              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., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Upon our review, we find that the
circuit court erred in ruling that the two October 3, 2013, orders did not constitute final orders
under Rule 28(a) of the Rules of Practice and Procedure for Family Court. However, the Court
notes that this ruling applies only to petitioner’s assignments of error related to the family court’s
denial of her motion for reconsideration and dismissal of her motion for contempt. Petitioner’s
remaining assignments of error on appeal to this Court are not reviewable because they relate
back to the family court’s March 11, 2013, final divorce decree, which petitioner did not timely
appeal.

        Pursuant to Rule 28(a) of the Rules of Practice and Procedure for Family Court, “[a] party
aggrieved by a final order of a family court may file a petition for appeal to the circuit court no
later than thirty days after the family court final order was entered in the circuit clerk’s office.” It
is undisputed that petitioner failed to appeal the final divorce decree to the circuit court within
thirty days, as her appeal was not filed until November of 2013. While Rule 28(a) goes on to state
that “[i]f a motion for reconsideration has been filed within the time period to file an appeal, the
time period for filing an appeal is suspended during the pendency of the motion for
reconsideration,” the record shows that petitioner filed her motion for reconsideration in the
family court well outside the time frame for appeal of the final divorce decree. As such, the

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appeal period was never suspended and petitioner failed to timely appeal the final divorce decree.
On appeal to this Court, petitioner alleges that the family court erred in considering illegally
obtained evidence, making conclusory findings of fact in regard to petitioner’s caretaking
functions, designating respondent as the primary residential parent, and failing to adopt her
proposed parenting plan. These assignments of error are clearly related to the family court’s
March 11, 2013, final divorce decree. For these reasons, petitioner is not entitled to appeal the
rulings contained in that order.

        In regard to petitioner’s assignments of error regarding the family court’s orders
dismissing her second motion for contempt and denying her motion for reconsideration, the Court
remands the matter to the circuit court for a ruling on the merits of her alleged errors. In denying
petitioner’s appeal, the circuit court simply stated that “[t]he [f]amily [c]ourt’s orders entered
October 3, 2013[,] contain no language that indicates that they are appealable final orders” before
ultimately concluding that the orders “are temporary orders and not subject to appeal.” While it is
true that the subject orders do not contain language indicating they are final and appealable as
required by Rule 22(c) of the Rules of Practice and Procedure for Family Court, the Court finds
they are final, appealable orders nonetheless. Specifically, each of the orders concern motions that
relate back to the enforcement of the final divorce decree, which is undoubtedly a final,
appealable order. If the Court were to affirm the circuit court’s order, parties to family court
proceedings would have no avenue for appeal when seeking to enforce final family court orders.
For these reasons, the Court remands the matter for the entry of an order ruling on the merits of
these assignments of error. However, as noted above, the circuit court is not required to entertain
petitioner’s assignments of error relating to the March 11, 2013, final divorce decree itself, as
petitioner failed to timely appeal the same.

       For the foregoing reasons, this case is hereby reversed and remanded to the circuit court.


                                                                          Reversed and Remanded.

ISSUED: March 16, 2015

CONCURRED IN BY:

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




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