                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


James P.,
Petitioner Below, Petitioner                                                     FILED
                                                                            September 5, 2017
vs) No. 16-0961 (Kanawha County 12-D-1339)                                       RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Anna P.,
Respondent Below,

and the Bureau for Child Support Enforcement,
Respondents


                               MEMORANDUM DECISION
       Petitioner James P., by counsel James T. Cooper, appeals the Circuit Court of Kanawha
County’s September 12, 2016, order refusing his appeal of the Family Court of Kanawha
County’s denial of his request to modify his child support obligation.1 Respondent Anna P.,
appearing pro se, filed a response. Respondent Bureau for Child Support Enforcement
(“BCSE”), by counsel Kimberly D. Bentley, filed a response.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On August 22, 2012, petitioner filed for divorce from respondent Anna P. During their
marriage, they had three children. On October 29, 2012, the family court entered a temporary
order requiring petitioner to pay respondent Anna P. $1,860 from each paycheck. At the time this
temporary order was entered, petitioner was employed by a mining company as a fire boss
earning over $90,000 per year. Petitioner later separated from this company, and on October 11,
2013, filed an expedited petition for modification of the temporary order’s provisions relative to
child and spousal support. This petition for modification asserted a substantial change in
circumstances in that petitioner’s employment had been eliminated as part of a workforce
reduction, and he was then receiving weekly unemployment benefits totaling $424. It does not

       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).
                                                    1

appear from the record that the merits of this petition were addressed prior to the entry of the
final divorce order.

        On March 13, 2015, the family court entered the final divorce order, which ordered
petitioner to pay child support in the amount of $1,372.56 per month. At a hearing preceding the
entry of the final divorce order, the family court found that petitioner could have transferred to
other locations within the mining company from which he separated. Thus, in the final divorce
order, the family court attributed to petitioner an annual income of $90,000, which was
comparable to the salary earned in his prior employment.2 The family court further found that
petitioner “has made no effort to secure comparable employment during the pendency of this
action.”

       Petitioner appealed the final divorce order to the circuit court on several grounds,
including his assertion that the child support obligation was calculated based upon what he could
make rather than what he actually made. Finding no error, the circuit court refused petitioner’s
appeal by order entered on April 13, 2015.

        On September 23, 2015, respondent BCSE moved to determine child support arrears and
for entry of judgment against petitioner in the amount of arrears as found by the family court. On
January 14, 2016, the family court entered an order finding petitioner in arrears in the amount of
$22,951.51. Respondent Anna P. was awarded a judgment in this amount, and petitioner was
found in contempt due to his willful failure to pay child support. On this same date, the family
court entered an order obligating petitioner to pay to respondent $1,500 per month towards child
support. Of this amount, $127.44 went toward arrears, and the remaining $1,372.56 represented
his current child support obligation.

        Petitioner appealed the January 14, 2016, order to the circuit court, arguing that he had
been laid off from his coal mining job and had been unable to obtain employment with
comparable income. Petitioner asserted that his present monthly income was approximately
$1,500; thus, he was unable to pay monthly child support of $1,500. On April 4, 2016, the circuit
court refused petitioner’s appeal finding no good cause or other justification to grant the petition
for appeal.

        On May 16, 2016, petitioner filed a petition for modification with the family court. He
again asserted that he had made substantial efforts to obtain employment in the coal industry to
no avail. Petitioner stated that he earned only $14,155 per year working for a family business. He
also stated that, as part of his compensation, he was afforded the use of an apartment that
typically rents for $450 per month, which brought his gross yearly income to $19,555. Petitioner
asserted that the income attributed to him in calculating child support has resulted in a child
support obligation that is impossible for him to meet, and he also asked the court to take judicial
notice of the downturn in the coal industry. Petitioner concluded that these facts established a

       2
       “Attributed income” is defined as “income not actually earned by a parent but which
may be attributed to the parent because he or she is unemployed, is not working full time or is
working below full earning capacity or has nonperforming or underperforming assets.” W.Va.
Code § 48-1-205(a).
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substantial change in circumstances that entitled him to a reduction and modification of his
current child support obligation.

        On July 7, 2016, the family court denied petitioner’s petition for modification finding that
petitioner appealed the family court’s attribution of income twice, and his appeals were refused
on both occasions. The family court found petitioner’s petition for modification to be a “third
bite at the apple” and that petitioner provided “little to no evidence of his attempt to find
comparable employment to the level he voluntarily left.” The family court found that petitioner’s
testimony concerning his employment attempts lacked credibility. Thus, the family court found
that petitioner failed to prove a significant change in circumstances since the entry of the final
divorce order and the subsequent appeals.

        Shortly after petitioner’s petition for modification was denied, the family court entered
another contempt order. This order stated and found that that petitioner liquidated his retirement
account that contained a pre-tax balance of $24,636.41, and that, although petitioner made
postseparation contributions to this account, respondent Anna P. was entitled to $4,942.49.
Despite petitioner’s nearly $30,000 in outstanding child support obligations, the record reflects
that he spent the liquidated funds on tattoos, liposuction, and teeth repairs. The family court
found petitioner’s unilateral liquidation of the marital account to be in willful contempt of the
final divorce order,3 and ordered petitioner to pay respondent Anna P. the balance of her portion
of the retirement account to purge himself of the contempt.

        Petitioner appealed the family court’s denial of his petition for modification. By order
entered on September 12, 2016, the circuit court denied the petition finding that the family
court’s conclusion that no significant change in circumstances existed to warrant a modification
conforms to the facts and the law, and that no good cause or other justification to grant the
petition for appeal existed. It is from this order that petitioner appeals.

        On appeal, petitioner contends that the lower courts erred in failing to find that he proved
a substantial change in circumstances warranting a modification of his child support obligation.
Petitioner asserts that he has sought employment with companies both in and out of the coal
industry, as evidenced by hand-written lists appended to his petition for modification and
presented during the hearing on that petition. He also asserts that he sent out numerous resumes,
applied online for at least one position, and signed up with employment agencies. Petitioner
claims that none of his efforts at seeking comparable employment have been successful. He also
contends that the family court’s finding that petitioner provided “little to no evidence of his
attempt to find comparable employment to the level he voluntarily left” is clearly erroneous.

                       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
               circuit court judge under the clearly erroneous standard, and the



       3
        The final divorce order ordered that respondent Anna P. “be awarded her 50% marital
portion of any and all of the [p]etitioner’s 401k, pension and/or retirement accounts.”
                                                     3

               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, 475, 607 S.E.2d 803, 804 (2004).

          “The court may modify a child support order, for the benefit of the child, when a motion
is made that alleges a change in the circumstances of a parent or another proper person or
persons.” W.Va. Code § 48-11-105(a). Petitioner contends that he has established a substantial
change in circumstances by seeking, but not finding, employment since the final divorce order
was entered. The family court found, and the circuit court affirmed, that petitioner provided
“little to no evidence of his attempt to find comparable employment to the level he voluntarily
left,” and that petitioner’s testimony concerning his employment attempts lacked credibility.
Aside from providing a list of companies petitioner purportedly contacted regarding employment
and a copy of his resume, petitioner submitted no evidence documenting any attempts at
comparable employment. Petitioner’s list of companies does not include dates of contact, and, in
spite of his testimony that he sent resumes to various companies and submitted at least one
application online, petitioner has failed to present a single letter or other correspondence from
any prospective employer evidencing receipt of his resume or application. Thus, the lower
courts’ findings that he presented little evidence of his attempts to find comparable employment
is not clearly erroneous.

        With respect to petitioner’s challenge to the finding that his testimony lacked credibility,
we note that “[a]n appellate court may not decide the credibility of witnesses . . . as that is the
exclusive function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n.9, 461
S.E.2d 163, 175 n.9 (1995). Petitioner’s past attempt to avoid paying respondent Anna P. her
share of petitioner’s retirement account and failure to put any portion of his liquidated retirement
account toward his child support arrearages support the lower courts’ finding regarding
petitioner’s credibility. Consequently, this finding is not clearly erroneous. For these reasons, the
lower courts were not clearly erroneous in concluding that petitioner failed to prove a significant
change in circumstances warranting modification of his child support obligation.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: September 5, 2017

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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