Ashlea P. v. Kevin H. Jr. ( 2022 )

FILED
October 17, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Ashlea P.,
Petitioner Below, Petitioner
vs.) No. 21-0310 (Lewis County 13-D-157)
Kevin H. Jr.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Ashlea P. appeals the circuit court’s March 2, 2021, order denying her appeal
of a family court order awarding Respondent Kevin H. Jr. his attorney’s fees following its
granting of his motion to dismiss petitioner’s petition to modify the parties’ parenting plan and
his petitions for contempt. 1
The parties share a child, and petitioner initiated the underlying action below by
petitioning for child support. During the proceedings, the family court entered a parenting plan,
which petitioner sought to modify. Respondent moved to dismiss the modification petition,
arguing that petitioner’s petition included falsehoods and that she had not complied with the
parenting plan. Respondent also filed two petitions for contempt based upon petitioner’s alleged
failure to comply with certain visitation prerequisites. Respondent requested his attorney’s fees.
Ultimately, the family court granted respondent’s petitions for contempt and his motion to
dismiss petitioner’s petition to modify the parties’ parenting plan. By separate order, the family
court awarded respondent his attorney’s fees in the amount of $6,685.
Petitioner appealed the order awarding attorney’s fees to the circuit court. The circuit
court denied petitioner’s appeal on March 2, 2021, concluding that the family court appropriately
examined the issue under Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996), 2 and did
1
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. Proc. 40(e). Petitioner appears by counsel Holly Turkett, and respondent
appears by counsel Trena Williams.
2
In Syllabus Point 4 of Banker, we outlined the factors a family court should consider in
determining whether to award a party his or her attorney’s fees in divorce actions. These factors
include
(continued . . .)
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not abuse its discretion in awarding attorney’s fees. Petitioner raises two assignments of error on
appeal, and we employ 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).
First, petitioner argues that the family court erred in awarding respondent his attorney’s
fees because it did not fully analyze the factors set forth in Banker. In her estimation, an
adequate analysis of those factors does not warrant an award of attorney’s fees. The factors set
forth in Syllabus Point 4 of Banker are those that should be considered in determining whether to
award attorney’s fees “[i]n divorce actions.” Id. at 538, 474 S.E.2d at 468, Syl. Pt. 4, in part
(emphasis added). The syllabus point “specifically limits the test set forth therein to divorce
actions.” Paugh v. Linger, 228 W. Va. 194, 200, 718 S.E.2d 793, 799 (2011). This is not a
divorce action; rather, the matter was initiated by the filing of a petition for child support and
further involved a custody dispute. Because petitioner’s argument rests on inapplicable authority,
she has failed to demonstrate error in the award of attorney’s fees to respondent. See In re
Guardianship of N.P., No. 19-1187, 2021 WL 365283, *5 (W. Va. Feb. 2, 2021)(memorandum
decision) (finding that the petitioner was entitled to no relief where he claimed that the family
court failed to analyze the Banker factors because, as the case was a custodial matter rather than
a divorce action, the petitioner’s argument was “based entirely on inapplicable authority”);
E.O.R. v. M.D.W., No. 17-0355, 2018 WL 1218023, *6 (W. Va. Mar. 8, 2018)(memorandum
decision) (concluding that Banker was not controlling in that case, which was a custody dispute,
not a divorce action). 3
the party’s ability to pay his or her own fee, the beneficial results obtained by the
attorney, the parties’ respective financial conditions, the effect of the attorney’s
fees on each party’s standard of living, the degree of fault of either party making
the divorce action necessary, and the reasonableness of the attorney’s fee request.
Banker, 196 W. Va. at 538, 474 S.E.2d at 468, Syl. Pt. 4, in part.
3
We acknowledge that the circuit court relied on Banker in addressing the propriety of an
award of attorney’s fees, but this Court is not bound by that analysis. “This Court may, on
appeal, affirm the judgment of the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by
the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140
S.E.2d 466 (1965). West Virginia Code § 48-1-305 provided the family court with the authority
to award respondent his attorney’s fees, which petitioner fails to address.
2
In petitioner’s second assignment of error, she claims that the circuit court erred in
denying her appeal when it had no electronic recording of the proceedings before the family
court. In her petition for appeal to the circuit court, petitioner stated that she had requested a
recording of the relevant hearing but was informed that one was unavailable. Petitioner argues
that the circuit court should have remanded the matter for development of the record because it
was “impossible” for the circuit court to review the matter without the recording. Under Rule 29
of the West Virginia Rules of Practice and Procedure for Family Court, “[i]f essential portions of
the recording of proceedings before a family court are inaudible or unavailable, the circuit court
may recommit the case to the family court.” (Emphasis added.) Petitioner never sought to have
the matter recommitted despite knowing that a recording was unavailable when she appealed to
the circuit court. She has not demonstrated error in the circuit court’s failure to grant relief she
did not request, particularly where the facts were not in dispute.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 17, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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