IN THB CIRCUIT COURT OF PUf,O$A[\4 OOUftT#,{$BST

2'$l3tlAI

DOLORES HALBURN (MARTIN),

-1 P$ l:32

puTrii lA $.rr!r[,,.,

Petitioner,

RGINIA

roun,

CASE

v.

Phillip

11-D-516

Stowers, Judge

MARK HALBURN,
Respondent.

IN ART
NG.IN P
FINAL DIVORCE ORDER OF FAMILY COUBT

to a Petition for

This matter came before the Court on February 20,2013,

Appeal filed by the respondent below and petitioner on appeal, Mark
Halburn appeals the Family Court's Final Divorce Order entered on Jatr

Petitionfor Appeat was timely filed pursuant to West Virginia Code $ 51-2
below and respondent on appeal, Delores Halburn, who has changed her n
and

will hereinafter

be referred to as such, filed a response on March 12,201

se,

Mr.

23,2013.

The

bum, pro

-1

1. The petitioner

to Dolores Martin

.l

The Court heard

oral arguments regarding the appeal from both parties who appeared pro

on April 17,2413.

Appeal is made pursuant to

est Virginia Code

This Court's review of the Petition

$

for

51-2A-l l.

After reviewing the record, including the recorded hearings held

low on October

1,

2012,and October 15,2012;the January 23,2013, Final Order of the Famil Court; the Petition

for Appeal; the accompanying memorandum; Ms. Martin's response; briefs

argument on

April 17,2Al3;

ided during oral

and all relevant legal precedent, this Court RE ERSES the Family

' The Court notes Ms. Martin's claim that she did not receive service of rhe Petition for A
week after Mr. Halburn filed the Petitionfor Appeal, Ms. Martin physically appeared at

(l)

Circuit Clerk's office to obtain a copy.

Approximately one
e Putnam Counfy

court's Final Divorce order pertaining to custodial allocation

affirms for the

and

reasons set forth below.

I.

FACTUAL AND PROCEDURAL BACKGR

The parties were married in Putnam County, West Virginia'

in

1998.

ND
y had one child,

calif

ia for a period of

time but retumed to West Virginia. Ms. Martin filed for divorce in Novem

r 2011. Upon the

recusal of Family Law Judge William Watkins, Family Law Judge Michael

elly was appointed

who was born on August 29,2007. The parties moved to

to preside overthis case on January 27,2A12. (Dkt. No. 17). On March , 2A12, the Family
Court entered aTemporary Order granting Mr' Halburn visitation with his

every Wednesday

night and every other weekend, Ms. Martin was granted visitation all ot

times. (Dkt. Nos.

23-24).
The relevant procedural history of this case beginning on March 3,

to the Petition for Appeal is lengthy. The parties have litigated

pertaining to their divorce and the custody of their
analyzes only the issues raised

an

son' As an appell

12, and leading up

t of issues
body, this Court

by Mr. Halburn in the Petition for Appeal which contests the

granted the
Family Court's Final Divorce Order entered on January 23,2013. The Fami y Court

parties' petition for divorce on the ground of irreconcilable differences. I

the Final Divorce

Order,the Family Court adjudicated issues of equitable distribution, child

ody, mental health

evaluations, and attorney fees. (Dkt' Nos' 1i3-116)'

Mr. Halburn identifies four grounds for appeal in the Petition for
numerous United States Supreme Court cases in the accompanying

, and he cites
um, consisting of

approximately fifteen (15) pages. Ms. Martin rebutted each ground. Tlie Court heard oral
arguments on

April

17

,2013. The Court

addresses each ground for appeal

bllow.
i

II.

STANDARD OF REVIEW

The Court's review of the Family Court's decision is not de novol this Court merely
reviews the Family Court's findings of fact and appiications of

law. Under the structure of the

Family Court system, this Court's jurisdiction is limited to reviewine the erlidence presented to
l

the Family Court and determining whether the Family Court made an error iln its

(l)

findings of

fact, which are reviewed under a clearly erroneous standard or (2) applicalion of law to facts,
under an abuse of discretion standard. W. Va. Code $

5l-2A-14. The Court

court; it may not accept new evidence not presented to the Family Court.

acts as an appellate

tf

"

S 51-2A-14(b).

This Court may affirm, reverse, or remand the decision of the Family Cou]rt. Id. at

$ 5l'2A'

1a(a). However, this Court is not authorized to reverse the case simply lecause it wishes to
substitute its decision for that of the Family Court.

The Family Court's findings of fact are reviewed under a ciearly prroneous standard'

W. Va. Code g 51-2A-14(c). The Supreme Court of Appeals of West Virginia has determined
that a finding is clearly erroneous

if the court "is left with the definite una n{- conviction

mistake has been committed." In Interest of

Tffiny Marie,S.,

that a

196 W. Va. 2P3,231,470 S'E'2d

177,185 (W. Va. 1996). This Court cannot overtum a finding "simply be{ause it would have
decided the case

differently."

.1d.

The Family Court's application of law to facts is reviewed under an abuse of discretion

standard. W. Va. Code $ 51-2A-14(c). The Supreme Court of Appeals o{West Virginia has
found that an abuse

of discretion

has occurred when a court (1) ignoresl a "material factor

deserving significant weight," (2) relies upon an improper factor, or (3) makfs a serious mistake
3

in weighing the factors. See Gentry v. Mangum, 195 W. Ya.512,466 S.

171,

fn.6 (W. Va.

l 99s).

III.

l.

OPINION

In his first ground for appeal, Mr. Halburn argues what the

claim that the Family Court erred in awarding custody of the

chi

urt interprets as

to Ms. Martin and

limiting his visitation. He states the following:

Family Court Judge egregiously abused discretion under Family R

make findings to follow W.Va. shared parenting statute $48-1-23
failed to consider W.Va. $48-9-209 (1-5). Family Court judge fail
the shared statute in awarding shared custody to the parties and based
on arbitrary and capricious discretion that Respondent father h
problems. The alleged emotional problems are not based on facts
arbitrarily used by the Judge in a personal anti-male vendetta against
father. Judge's decision had no relevant findings supported by re
that most of the Judge's decision was based on an error-filled ps
Respondent, using points ofreport for personal attacks upon R
Respondent had filed judicial complaint(s) against Judge fi
Respondent's constitutional rights to shared parenting time.

e 22(b) to
as well as
to consider
his decision
emotional
are being
Respondent
law given
h, report of
nt, because
violating

Petitionfor Appeal, pp. l-2, February 20,2413.

The Family Court changed Mr. Halburn's visitation times with

Under the

Temporary Order entered on March 3, 201'2, Ms. Martin was deemed it

parent. Mr. Halburn was granted visitation rights every Wednesday

ni

primary custodial
and every other

weekend. Under the Final Divorce Order entered on January 23, 2013 the Family Court
reduced his visitation to "every other Saturday and Sunday commencingal9 00 a.m. and ending
p.

.23,2013. ln

addition, the Family Court granted Mr. Halburn visitation with his son from

to six p.m. on

at 8:00 p.m, each day beginning February

2,2013," Final Divorce Order,

the child's birthday, the father's birthday, Easter, Father's Day,

Christmas day. Id. at p. 30. Every Thursday at 6:00 p.m', Mr. Halbum
4

sgiving Day,

and

to telephone

the child but he must provide and pay for the phone.

Id' The Family

maintained the

prohibition on Mr. Halburn from removing the child from the State of West

irginia. Id. atp.5.

The Family Court ordered Mr. Halburn to obtain therapy and then seek

ification of this

parenting plan.

This premise of this first argument is that the Family Court failed

include sufficient

lrndings of fact in the Final Divorce Order in accordance with Rule 22(b)

f the West Virginia

i]n proceedings in

Rules of Practice and Procedure for Family Courts. That rule states, in part,
a

findings of fact. In

proceedings in which one or both parties are represented by attomeys, the

may assign one

which both parties are self-represented, the court shall prepare all orders

or more attorneys to prepare an order or proposed findings of

fact.

." The Final Divorce

Order includes a heading entitled "Allocation of Custodial Responsibili

That section has

several subsections that altogether total approximately twenty-five (25)

the Family Court's order and findings of fact to be sufficient under Rule

b) of the Rules of

The Court finds

Practice and Procedure for Family Courts.

The Family Court's primary reason stated for changing Mr' Hal

's visitation time

with his son is the fear that Mr. Halbum's erratic behavior will subject the

ild to violence in

the future. The Family Court based its opinion on three sources of informati

: the psychologist

who evaluated Mr. Halbum, Ms. Martin's testimony, and Mr. Halburn's acti
The Family Court ordered the parties to undergo psychological eval

ions. Dr. Hudson

evaluated Mr. Halburn and diagnosed him with adjustment disorder and

rsonality disorder.

The basis of this diagnosis is Mr. Halburn's behavior towards others and

he perceives the

conflicts he experiences. In his report, Dr. Hudson discusses Mr. Hal urn's interpersonal
conflicts and how those relationships affect

him. More importantly, Dr. H

stated that the

parties' child

will likely be exposed to these conflicts

created by Mr. Ha

burn. Dr.

flicts are likely to

testified via telephone during the trial held in this matter that additional

will

Hudson

conseq

Iy be exposed to

danger. A previous psychological evaluation of Mr. Halbum was conducted

Dr. Thistlewaite,

who opined that Mr, Halbum has a propensity for aggressive behavior and

any threats made

occur and that he could not rule out the possibility that the child

by Mr. Halburn should be taken seriously.

she relayed the

Ms. Martin's testimony seemed important to the Family Court

same behavioral characteristics

testified about specific instances involving airports and hotels

allegedly involved

in

nonviolent conflict resulting

in

whic

in his removal or

Halburn

will

be arrested and the child

reasonable apprehension

will

Mr. Halbum

was

ng Mr. Halburn's

previous arrests. Ultimately, Ms. Martin argued that Mr. Halburn is likely

will place the child in

She

untary departure

therefrom.2 The Family Court also noted Ms. Martin's testimony re

the future that

him.

luated

of those noted by the psychologists who

create conflict in

of physi

harm or that Mr.

be stranded in the care of stran

With regards to Mr. Halburn's own actions during the course of this itigation, this Court
recognizes that the Family Court below had ample opportunity to

rve Mr. Halburn's

behavior. There were numerous alguments involving the propriety of Fami y Law Judge Kelly
whether the child

himself, the propriety of Ms. Martin's attorney, Ms. Martin's fitness to pare

would be permitted to visit his grandmother

in California before she

whether Mr.

Halbum would be permitted to take the child out of state, and many other matters. Based on
these arguments and

Mr. Halburn's behavior, the Family Court concluded

t This
Court has reviewed the DVD recordings of the Family Court hearings held on Octob
2012, and notes that the parties dispute whether Mr. Halburn was removed ltom these I
due to his dissatisfaction with the services provided.

and October 15,

s or

voluntarily left

for]tris father to
of law that it would be manifestly harmful to
Mr.
have any parenting time beyond [Saturday and Sunday visitatioril'
Halburn's personality disorder has in the past, and much more likely fhan not will
at an increased risk of harm caused by third parties
in the future, put
Halburn's
.
.
. behavior.
to
Mr.
reacting
as a matter

Final Divorce Order, p. 30,

Jan.23,2013.
I

The issue before the Court is whether, under West Virginia law, the

its discretion by limiting Mr. Halburn's visitation with his child

{amily

becausd

Court abused

of his personality

disorder. When determining child custody issues, the Family Court encoura[es parties to create
l

an agreed parenting

plan. Frequently, such a goal is not accomplished by tw{ adults ending their

marriage and separating their once joined

responsibility, the Family Court is

lives. When the parents cannol agree on custodial

to
i

allocate custodial responsibility so that the proportion of custodial tiine the child
spends with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents' separation . . .
except to the extent required under section 9-209 or necessary to . .1. permit the
child to have a relationship with each parent who has performed { reasonable
share of parenting functions.
W. Va. Code $

a8-9-206(aX1).

Before Ms. Martin filed for divorce, both parents in this case worked for varying periods
of time as full time and/or substitute teachers. Additionally, Mr. Halburn oR$rated and continues
I

to operate a website from which he earns income, and Ms. Martin sold \rlary Kay products.
Upon review the Family Court's orders and the record below, the Court nnls tnat each parent's
caretaking functions have varied.

If the Court

cannot allocate custodial responsibility under the previously cited section

L

"because the history

[of the parents' caretaking functions] does not estlblish a pattern of

I

caretaking sufficiently dispositive of the issues of the case, the court shal]l allocate custodial
responsibility based on the child's best interestr.

. . ;'

Id. at $ 48-9-206(t). In fact, the most

i

i
I

i
l

for]tris father to
of law that it would be manifestly harmful to
Mr.
have any parenting time beyond [Saturday and Sunday visitatioril'
Halburn's personality disorder has in the past, and much more likely fhan not will
at an increased risk of harm caused by third parties
in the future, put
Halburn's
.
.
. behavior.
to
Mr.
reacting
as a matter

Final Divorce Order, p. 30,

Jan.23,2013.
I

Court abused
The issue before the Court is whether, under West Virginia law, the
{amilV

its discretion by limiting Mr. Halburn's visitation with his child becausJ of his

personality

disorder. When determining child custody issues, the Family Court encourales parties to create
l

an agreed parenting

plan. Frequently, such a goal is not accomplished by tw{ adults ending their

marriage and separating their once joined

responsibility, the Family Court is

lives. When the parents cannol agree on custodial

I

to

allocate custodial responsibility so that the proportion of custodial tiine the child
spends with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents' separation . . .
except to the extent required under section 9-209 or necessary to . .1, permit the
child to have a relationship with each parent who has performed { reasonable
share of parenting functions.
W. Va. Code $

a8-9-206(aX1).

Before Ms. Martin filed for divorce, both parents in this case worked for varying periods
of time as full time and/or substitute teachers. Additionally, Mr. Halburn oR$rated and continues
I

to operate a website from which he earns income, and Ms. Martin sold Mary Kay products.
Upon review the Family Court's orders and the record below, the Court finls that each parent's
caretaking functions have varied.

If the Court

cannot allocate custodial responsibility under the previously cited section

L

"because the history

[of the parents' caretaking functions] does not estlblish a pattern of

I

caretaking sufficiently dispositive of the issues of the case, the court shal]l allocate custodial
responsibility based on the child's best interestr.

. . ;'

Id. at $ 48-9-206(t). In fact, the most

important consideration in this case or any child custody matter is the best ifrterest of the child.
l

W. Va. Code g 48-9-102(a); Syl. pt. 2,Carterv. Carter, 196 W. Ya.239,47q S.E.2d 193 (1996),

Achieving faimess between the parents always falls behind the best intfrests of the child.
W. Va. Code $ 48-9-102(b). Consequently, the issue becomes whether Mr.

flalburn's

visitation

with his son is in the child's best interest.

Mr. Halburn's argument assumes that under the best interests of the fhild umbrella from
which it is covered, the Court must award custody of his child to him unlesslthe Court finds one
of the following factors listed in West Virginia Code $ 48-9-209. That Code section requires the
court to limit custodial responsibility of a parent

1)
2)

3)
4)

5)

if the court determines that tfe parent

has abused, neglected or abandoned a child;

has sexually assaulted or sexually abused a child as those terms afe defined in
I

of this code;
articles eight-b and eight-d,
-----r'-- sixty-one
-) chapter
in
section 27-202:
has committed domestic violence, as defined
parent's
access to the child, exaept in
has interfered persistently with the other
the case of actions taken for the purpose of protecting the safety of the child or
the interfering parent or another family member, pending adjudi{ation of the
facts underlying that belief; or
has repeatedly made fraudulent reports of domestic violence or chjld abuse'

Id. at 48-9-209(a). In fact, Mr. Halburn argues in ground one of his appeal tflat the Family Court
committed error by failing to consider these factors and list them in the Flnal Divorce Order.
However, this Code section requires consideration of these factors only rfpon the request of
either parent or upon receipt of credible information thereof.

Id.

There ha$ been no allegation

I

that Mr. Halburn abused the child, neglected the child, abandoned the chil{, sexually assaulted
I

the child, committed domestic violence, interfered with Ms. Martin's access tb the child, or made
a fraudulent report

of domestic violence or child abuse-

Consequently, the standard is the best interestof the

as to

child. The Fam[ly Court's decision

how custody shall be allocated in this case in accordance with the best interest of the child
8

the Family Court's

is reviewed by this Court under the abuse of discretion standard. To re

(l)

allocation of custody in this case, the Court must find that the Family C

ignorefd]

"material factor deserving significant weight," (2) relied upon an improper

tor, or (3) made a

in weighing the factors. See Genty v. Mangum, 195 W.

a. 512,466 S.E.2d

serious mistake

171, fn. 6 (W. Va. 1995).

it is not in the best in

st of the child to

allocate custody of him to Mr. Haibum more than every other Saturday a

Sunday, excluding

night. The stated reasoning is that Mr. Halburn will

child to potential

As noted above, the Family Court found

Saturday
danger

in the future due to his propensity to initiate conflict with

subject t

noted above, this

others,

decision is based on the psychologists' opinions, Ms. Martin's testimony, and Mr. Halburn's

actions.

The Court finds the Family Court's decision to limit Mr. Halburn's visitation with his son

to the da1'time hours of every other Saturday and Sunday is an abuse of discfetion because there
',

is little evidence that Mr. Halburn actually poses a threat to the well-beinp of the child. Dr.
Hudson's testimony and report provide the most support for this Court's

findife:
I

However, this examiner is aware of no credible allegations that Mr. flallbum has
ever become violent with anyone or that he has ever mistreated his soit. . . . While
the currently opined personality disorder is indeed a risk factorl for violent
behavior, it is just one of many and does by any means correlate Pr]ecisely with
Other risk factors for violent acting out, incfuding prior
violence risk.
violence, age, substance abuse, major mental illness, psychopathd, and prior
supervision failure are not apparent in this case.
I

Report of Dr. Hudson, p. 13, Jan. 30, 2012 (Dkt. No. 135). Importantly, Dr. Hudson testified
before the Family Court on October
does not see a reason to

3:30.

15,20l2,that despite Mr. Halburn's pprsorrality

issues he

limit his visitation with the child. Recorded hearin[, Oct. 15, 2012,
I

at

Dr. Hudson casted doubt on Dr. Thistlewaite's assessment that Mr. Halburn is

at

significant risk of committing violent behavior in the future:

it is true that personality disorder

that Dr.
nce, this

characteristics such as
a risk factor for
constitute
Halbum
Thistlewaite observed in Mr.
in isolation
and
factors
would be but one of many such risk
construed as significantly elevating violence risk in an individ
known history of significant violence. This examiner notes that
reasonable to weight Mr. Halburn's personality issues more heavil
history of significant violence had been substantiated.

While

ld not be

I without a
t would be
if a known

Id. atp.2. This opinion correlates with Dr. Hudson's conclusion that posse ing one risk factor,
a

personality disorder, is not sufficient to deem someone unfit to parent.

Dr. Hudson's evaluations clearly indicate that Mr. Halbum

associated

nces problems

ex

ms do not involve

with his personality disorder; however, he opined that these

fact, Dr. Hudson

the child and there appears to be little risk of endangering the child.
commented that "[t]here is some evidence of a positive bond between

Mr' H lburn

and

that should be construed as constituting a protective factor against future d hild maltreatment."
rd.

Although Mr. Halbum's personality disorder does not render trim [rnnt to parent, Dr.
Hudson opined it does affect Mr. Halbum's relationships with others. Mr. Hfllburn could benefit
I

by receiving treatment for his personality disorder so that he can better intera[t with other people

involved

in the child's life. Dr.

Hudson recommended that

Mr.

Halburn consider

psychotheraphy and/or mood stabilizers.

In summary, the child has never been harmed or

abused

while in the custody of Mr'

I

Halbum. The Court does recognize a potential risk of subjecting the ctiild to observe Mr.
Halburn's repeated engagement in conflict. However, this Court does not fifrd that the potential

for the child to witness a dispute between his father and another adult, witn

r0

iack of violence in
J
i

th his

Mr. Halburn's history, does not warrant limitation of his parenting time
potential, by itself, does not make Mr. Halburn an unfit parent. None

of

parents

It is in the best interest of every child to

to the extent practicable. Without a concrete, existing

that the Putnam

time with both

limit one parent's

reason

nity to raise his or

visitation, that parent should be provided the opportunity to pursue the o

her

child. In this

case, the lack

Such

he factors listed in

West Virginia Code $ 4S-9-209(a) are at issue, despite Mr. Halbum's

County Courts consider them.

child.

of psychological testimony that Mr' Hal

definitely poses

risk to the child alleviates the need to limit Mr. Halburn's visitation. C

uently, the Family

Court made a serious mistake in heavily emphasizing Dr. Thistlewaite's r

and Ms. Martin's

alburn's visitation

testimony. As such, the Family Court abused its discretion by reducing Mr.

with his son from Wednesday night and every other weekend to only the da ime hours of every
other Saturday and Sunday.

The remaining issue with regards to child custody is what cusfodial allocation is
appropriate in this case. Without a prior history of violence, any evidence t{rat Mr. Halburn has

emotionally or physically abused the child or any evidence that Mr. Halb{m actually poses

threat to the child, the Court finds that the Family Court should not hav{ deviated from the
parenting plan

in

the Temporary

Order. Reinstating the parenting plan undfr that Order would

I

give Mr. Halbum visitation rights with the child every Wednesday and eVprV other weekend.
However, Mr. Halburn is prohibited from the premises of the child's pre-sct1ool. Effective May
17,2013, Mr. Halburn's visitation under the Temporary Order is reinstated

*lltn tn" exception of

i

Wednesday overnight

visits. Specifically, Mr. Halburn shall have visitatio{r rights every other

weekend beginning on Friday at 6:00 p.m, and ending on Sunday at 8:00

continue to meet at the Hurricane Police Department to transfer the child.

ul

n.fn. fhe

parties

will

of state. Again,

Additionally, Mr. Halburn has been prohibited from taking the child

an actual threat of

without any history of violence or a determination that Mr' Halburn

out of state is an

danger to the child, this Court finds that to prohibit him from taking the

ily Court's opinion

abuse of discretion. Nonetheless, the Court has carefully considered the F

of

regarding this issue. Mr. Halburn shall be permitted to take the child

following conditions: he will always give Ms. Martin notice at least one

state under the

) week prior to

the

; and Mr. Halburn

scheduled trip; the child is prohibited from missing school to attend such tri
must leave and retum from the out-of-state trip on the same day.
2.

In his second ground for appeal, Mr. Halburn argues that

$ecause Ms. Martin

failed to comply with the Family Court's order that both parties undergo a psfchiatric evaluation,
she should not have been awarded custody

of their child. Specifically, he claims that

the

"Family Court egregiously abused discretion by ordering that both parties be subjected to mental
health evaluations, yet Petitioner mother refused to get an evaluation, comrfritted bad faith, yel
l

was awarded custody." Petition for Appeal, p. 2, Feb. 20,2013. Mr. Halburlr complied with the

Court's order, and Dr. Hudson completed a psychiatric evaluation of him,

f,s

discussed above.

Ms. Martin did not comply. The Family Court found her in contempt and fin{d her $100.00.
I

In her response to the Petition for Appeal, Ms. Martin

evaluation was very expensive and she could not afford to pay
imposed by the Family

it.

Court.

the psychiatric
fhat
Howevlr, she paid the fine

argues

Family courts in the State of West Virginia may find litigants in codtempt and sanction
l

those

litigants. West Virginia Code $ 5l-ZA-9 states in relevant part

(a) In addition to the powers of contempt established in chapter forty-]elght of this
code, a family court judge may:
t2

(l)

Sanction persons through civil contempt proceedings

to preserve and enforce the rights of private parties or t
remedies granted by the court;

necessary

administer

(2) Regulate all proceedings in a hearing before the

and

of the court

(3) Punish direct contempts that are committed in the

or that obstruct, disrupt or corrupt the proceedings of the cou

(b) A family court judge may enforce compliance with his or her wful orders
plainant for
with remedial or coercive sanctions designed to compensate a
plainant.
benefit
of
the
for
the
obedience
to
coerce
and
losses sustained
In
herself.
purge
to
himself
opportunity
give
an
contemnor
the
Sanctions must
the
to
uate
power
possible
least
selecting sanctions, the court must use the
end proposed. A person who lacks the present ability to comply wit the order of
the court may not be confined for a civil contempt. Sanctions may i ude, but are
not limited to, seizure or impoundment of property to secure compl ance with a
prior order. Ancillary relief may provide for an award of attorney's fe
fer to the discretion

Additionally, an appellate court reviewing a family court's sanction should

of the family court. See Deitz v. Deitz, 222 W 'Ya. 46, 659 S.E.2d 331 (2008 ("Furthermore, we

typically have afforded broad discretion to lower courts imposing sanct ns for contempt to
enable those tribunals

to fashion a punishment that

corresponds

with the ntransigence of the

contemnor.")

The Family Court did not abuse its discretion by hning Ms. M

100.00

urt.

failure to undergo a psychiatric evaluation per the order of the Family

for her

Ms. Martin
merely

violated the order of the Family Court. She stated that this violation was

could not afford to pay for the evaluation. Accordingly, a fine of $ 100.00 tQ sanction her is not
an abuse of discretion. Certainly, failure to comply with the Family Court'd order to undergo

psychiatric evaluation does not warant an order to deny Ms. Martin cuftodl of her child.
L

Therefore, this ground for appeal is

dismissed

l3

3'

In his third ground for appeal, Mr. Halburn reiterates his urgf-"nt in ground one

that the Family Court erred by awarding custody of the child to Ms. M4rtin instead of Mr.
Halburn. He further explains that

the

Family Court Judge egregiously abused discretion

by failin! ro

follow

constitutional law and U.S. Supreme Court rulings holding that the s{ate must act
de minimis when involved in custody matters. Family Court Judje made it a
personal vendetta against Respondent father and deprived him and his child of
their fundamentally protected constitutional rights to have a relationlhip without
state interference, in violation of U.S. Supreme Court rulings arfd mandates
limiting the State's interference in parental rights (de minimis) with$ut clear and
convincing evidence of abuse or neglect to the child. The Trial] Judge used
improper standards and hid behind the "best interests of the chil]d" to usurp
Respondent's parental rights. To suggest goverunent's "special]interest" in
protecting children under guise of "best interest", or simply say "chil! has a right
to be free from some vague harm" is legally insufficient criteria to] involve the

State.

Id. In his fifteen-page

memorandum accompanying the Petitton 7o, eppro], Mr. Halburn cites

l

numerous United States Supreme Court opinions discussing varying levels

ff

,tut" interference

with parents' rights to raise their children. For example, Mr. Halburn

v. J.R.,442

"itrrlornom
U.S. 584, 99 S. Ct. 2493 (1g7g) for the premise that the State's involv]ement in
I

decisions should be de minimis unless the parent is

unfit. The Suprem"l

discussed the admittance of mentally or behaviorally handicapped children

State's involvement

tf

therein.

"oun

parenting

in this case

irl.titutions and the

Of course, this Court respects a parent's constitutional right to raise hls child.

,See

syl. pt.

1,In re ll/illis,157 W. Ya.225,207 S.E.zd 129 (1973) ("In the law concerning custody of minor
children, no rule is more firmly established than that the right of a naturat pfir"nt to the custody
i

of his or her infant child is paramount to that of any other person; it is a fi.-lndamental personal
liberty protected and guaranteed by the Due Process Clauses of the West
firginia and United
States

Constitutions.") The West Virginia Supreme Court's discussion of a pf,rent's right to raise
14

free to raise their

his child usually occurs in abuse and neglect cases. Fit parents are general
children with minimal state interference. Syl. pt,

l,

State ex rel Kiger

k,153 W. Va.

v.

of his or her infant

404, 168 S.E.2d 798 (1969). ("A parent has the natural right to the c

child and, unless the parent is an unfit person because of misconduct,

ect, immorality,

abandonment, or dereliction of duty, or has waived such right, or by

has permanently

the custody of his

transferred, relinquished or surrendered such custody, the right ofthe parent

or her infant child

will

be recognized and enforced by the courts.")

invite

However, parents who are married and petition the courts for a di

s patriae, must

state interference with the upbringing of their children. The State, as

oversee the dissolution

of marriage, being a legal institution, and what

be done with the

is

parties' children, if any. In In State ex rel. Paul B. v. Hill,20l W. Ya' 248, 57, 496 S.E.2d 198,
2A7 0997), the Supreme Court discussed this duty:
I

While parents enjoy an inherent right to the care and custody Qf their own

children, the State in its recognized role of parens patriae is the ultimpte protector
of the rights of minors. The State has a substantial interest in provi{ing for their
health, safety, and welfare, and may properly step in to do so when n$cessary. . . .
This parens patriae interest in promoting the welfare of the fhild favors
preservation, not severance, of natural family bonds. . .
,

Id. (citing In the Interest of Betty J.W.,I7g W. Va. 605,608, 371 5.8.2d32q,329 (1988)). The
I

State's interest

in children

as parens

patriae is tempered with the best idterest of the child.

.

"'This Court cannot . . . ignore its parens patriae dufy to protect the best interests of the child."

Id. (citations omitted). The best interest of the child is the primary ob.iective in

custodial

allocation cases. W. Va. Code $ a8-9-102(a).

Therefore, the State, and this Court, has a substantial interest in overseeing the custodial
allocation of the parties'

child.

Because the parties ask the courts

l5

of this State to
I
I

oversee their

divorce, the State has every right to ensure that Mr. Halburn's child is beins aheoua tely cared for

in the midst of his divorce.

To the extent that Mr. Halburn raises the same arguments in this srJound for appeal

as

ground one discussed above, the Court dismisses this ground.

4.

In his fourth ground for appeal, Mr. Halburn makes what the Court interprets as

three arguments. To the extent that Mr. Halburn makes other arguments, inclfrding Ms. Martin's

failure to undergo a psychiatric evaluation, that have been already discussed, the Court does not
address those arguments.

First, Mr. Halburn claims the Family Court improperly ordered him to pay parl of Ms.
Martin's attomey fees: "[t]rial judge egregiously abused discretion by . . . afard[ing] Petitioner
for her'bad faith' by granting her attorney's fees and costs in the amount of $[,935 .85'" Petition
I

for Appeat,

p.2, Feb. 20, 2013. In response, Ms. Martin argues that order]ing Mr. Halbum to

pay some of her attorney fees was warranted because the fees were a result
motions, hearing continuations, from

ff

countless emails,

Mr' Halbum,

Ms. Martin originally requested that the Family Court award ner attlrney fees and costs

in the amount of $10,435.85. In making the determination whether to

gr]ant

this award, the

Family Court discusses in the Final Divorce Order West Virginia Code $ 48-1-305(a), which
states that "costs may be awarded

to either party

as

justice requires . . .

."

Alslo, the Family Court

cited $ 48-1-305(c):

(c) When it appears to the court that a party has

unnecessarily because the opposing parly has
defenses for vexatious, wanton or oppressive
diverting attention from valid claims or defenses

l6

incurred attorney feps and costs

assefted unfounde{ claims or
purposes, thereby delaying or
asserted in good faifh, the court

may order the offending party, or his or^her attorney, or both, to puf reasonable
attorney fees and costs tb ihe other party.3
The Family Court specifically stated that the attomey fees and costs in this flitigation were "due

to much of the fees incurred by Ms. Halburn being a result of Mr. Halburn'[ vexatious, wanton
I

and oppressive conduct during the course of this litigation" under the above-pited Code sections.

Final Divorce Order, p. 36, Jan. 23, 2013. The Family Court further analyfed not only the six
factors courts analyze in determining whether to grant a request for attorney

fe.t

u"d costs under

Banker v. Banker, 196 W. Va. 535, 474 S.E.zd 465 (1996), but also e>iamined the twelve
reasonableness factors.

Id.

atpp.3740.

This Court finds that the Family Court's analysis of this issue is fthoroueh and wellreasoned. Accordingly, the Family Court's order that Mr. Halburn pay p[rt of Ms. Martin's
attomey fees is not an abuse of discretion.

The second part of Mr, Halbum's argument in the fourth ground fior appeal involves
I

equitable distribution. Mr. Halburn claims the Family Court erred by "gfanting Respondent
$23,000.00 for marital home settlement, instead of total $65,000.00 for Petitlioner's'bad

faith""

Petitionfor Appeal, p. 2, Feb. 20,2013. In response, Ms. Martin stated tha! the home belonged
to her and her mother. Although Mr. Halburn's name is not on the deed, sfie admitted that the

also notes West Virginia Code $ 48-5-504 that also authorizes the Family Court to award attorney fees
and costs in divorce cases. In relevant part, that statute states

'This Court

(a) The court may compel either parfy to pay attomey's fees and court costs reasona[ly necessary
to enable the other parfy to prosecute or defend the action. The question ofwhether br not a party
is entitled to tempoiary spousal support is not decisive ofthat parry's right to a reasdnable
allowance ofattorney's fees and coufi costs.

(c) Ifit appears to the court that a parry has incurred attomey fees and costs unnecefsarily because
the opposing parfy has asserted unfounded claims or defenses for vexatious, wanto$ or oppressive
purpoi.., th-eieby delaying or diverting attention from valid claims or defenses a{serted in good
reasonable
iaittr, ttre court may order the offending parry, or his or her attorney, or both, to
faY
attomey fees and costs to the other party.

t1

parties paid the mortgage from their

joint banking account.

the value of the

She also stated

home has declined since Wal-Mart constructed a new store nearby'

The Family Court noted that neither party appraised the property for this litigation. The

Family Court assigned a value of $16,000.00, which represents the reduct[on in the principal
amount of the mortgage over the course of the marriage. Because Mr, Halbrfrn's name is not on
the deed, the Court finds no abuse of discretion in the value assigned to the trouse by the Family

Court. Therefore, this ground is also dismissed.

Mr. Halburn also requested reimbursement for improvements he madp to the home in the
l

amount of $12,750.00. The Family Court declined to award him reimburseJnent for these costs
because they were not improvements that increased the value of the real

pro$erty. For example,

l

the Family Court noted that some of the items on the list were phot{s of the child,
entertainment center, and a swing set. Final Divorce Order, p. 33, Jan.23,

an

p013' Unon review

i

of the recorded hearings below, Mr. Halburn testified that he intended to rfmove the swing

set

from the property. Accordingly, there has been no abuse of discretion afrd this argument is
i

dismissed.

Lastly, Mr. Halburn argues that "Judge fKelly] failed to consider fetitioner's business
assets. Judge abused discretion

& failed to consider

Respondent's reductionlin business income

I

re:support." Petitionfor Appeal, p. 2, Feb. 2A,2073. Mr. Halburn refers td Ms. Martin's prior
Mary Kay business, in which she testified before the Family Court that such $usiness has ceased'
The Court interprets the argument in the second sentence as a petition for jnodification of Mr.
Halburn's obligation to pay child support due to the loss of this job. The n'an]ity Court noted that

Mr. Halburn admitted to a gross monthly income of $3,250.00. Accordingly, the Family ordered
"[p]ursuant to the attached income shares child support formula, the Respondent shall pay child
l8

support in the amount of $613.37 per month . . . ." Final Divorce Order, p. 3, Jan. 23,2013.
i

This Court searched the record below and did not find a petition for modifi{ation fiied with the

Family Court. The Court finds that this is not a valid argument on appe{I, and Mr. Halburn
should petition the Family Court to modify his obligation due to the change irf circumstances.

Therefore, all arguments made in the fourth ground for appeal are disrJnissed.

5.

To

address

all the issues raised by Mr. Halburn, the

COurt considers Mr.

i

Halburn's allegation that Judge Kelly displayed a bias against Mr. Halburn aird acted unethically
r

in resolving this matter. Upon review of the recorded hearings below, the Cfurt finds no bias of
Judge

Kelly against Mr. Halburn that affected the decision made below.

propff forum to consider any further alleged unethical acts of Judge

Tfi'ris

Court is not the

feliV. If Mr. Halbum

wishes to pursue such claims, Mr. Halburn should correspond with the Wdst Virginia Judicial
Investigation Commisston.

ORDER
Pursuant to West Virginia Code $ 5l-2A-14, this Court RBVERSES the Family Court's

Final Divorce Orderpertaining to child custody issues in accordance with this Order. The Court
otherwise DENIES Mr. Halburn's remaining grounds for appeal'
The Circuit Clerk is directed to send certified copies of this Order to the parties of record,

including

Mark Halbum
226 % 2lst Street
Unit B
Dunbar, West Virginia 25064
Dolores Martin

19

support in the amount of $613.37 per month .

..

." Final Divorce Order, p.3, Jan.23,2013.

i

This Court searched the record below and did not find a petition for modifi{ation fiied with the

Family Court. The Court finds that this is not a valid argument on appe{I, and Mr. Halburn
should petition the Family Court to modify his obligation due to the change irf circumstances.

Therefore, all arguments made in the fourth ground for appeal are disrJnissed.
L

5.

To

address

all the issues

raised

by Mr. Halbum, the CDurt

considers Mr.

Halburn's allegation that Judge Kelly displayed a bias against Mr. Halburn aird acted unethically
l

in resolving this matter. Upon review of the recorded hearings below, the Cfurt finds no bias of
Judge

Kelly against Mr. Halburn that affected the decision made below.

propq forum to consider any further alleged unethical acts of Judge

Tfi'ris

Courl is not the

feliV. If Mr. Halbum

wishes to pursue such claims, Mr. Halburn should correspond with the Wdst Virginia Judicial
Investigation Commisston.

ORDER
Pursuant to West Virginia Code $ 51-2A-74, this Court REVERSES the Family Court's

Final Divorce Orderpertaining to child custody issues in accordance with this Order. The Court
!

otherwise DENIES Mr. Halburn's remaining grounds for appeal'

The Circuit Clerk is directed to send certified copies of this Order to the parties of record,

including
Mark Halburn
226 % 2lst Street
Unit B
Dunbar, West Virginia 25064
Dolores Martin
194 Grace Drive

Hurricane, West Virginia 25 526

19

Honorable Michael Kelly

P.O. Box 246
1l I Court Street, Suite 1000
Charleston, wV 25301

ORDER-ED

this

-J
3
Phillip M.

2A