David R. v. The Honorable Eric Shuck, Judge of the Thirteenth Family Court Circuit and Honey R. ( 2022 )

FILED
October 26, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
David R.,
Petitioner Below, Petitioner
vs.) No. 21-0440 (Wyoming County 19-C-45)
The Honorable Eric Shuck, Judge of the
Thirteenth Family Court Circuit, and
Honey R.,
Respondents Below, Respondents
MEMORANDUM DECISION
Petitioner David R., 1 appeals the Circuit Court of Wyoming County’s May 7, 2021, order
denying his motion to enforce an earlier granted writ of prohibition. Finding no substantial
question of law and no prejudicial error, a memorandum decision affirming the order of the circuit
court is appropriate. See W. Va. R.A.P. 21.
Because the issue before the Court in this matter is an extremely limited legal issue, it is
unnecessary to set forth a detailed recitation of the facts leading up to petitioner’s challenges to
personal jurisdiction through a writ of prohibition, and subsequent motion to enforce the writ, in
the circuit court. It is, instead, sufficient to set forth the following. In 2018, respondent filed an
action for divorce in the Family Court of Wyoming County. At that time petitioner was, and has
remained, a resident of Indiana. After limited proceedings in the divorce matter, the family court
entered an amended temporary order on March 25, 2019, in which it, among other things, ordered
petitioner to pay temporary spousal support to respondent and awarded respondent real property.
The order also indicated that it would proceed to a final hearing on the issues of equitable
distribution, spousal support, attorney’s fees, and custody of the parties’ child.
On May 24, 2019, petitioner filed a petition for a writ of prohibition in the Circuit Court of
Wyoming County seeking to prohibit enforcement of the March 25, 2019, order on the grounds
that the family court lacked personal jurisdiction over him. The circuit court granted the writ,
1
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R.A.P. 40(e). Petitioner appears by counsel Timothy A. Bradford. Respondent Honey R.
appears by counsel Lyne Ranson.
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finding, in relevant part, that the March 25, 2019, order “fails to make a finding as to service of
process” and that it failed to find whether constructive service had been achieved. The circuit court
concluded that the “failure to make a finding as to service of process is contrary to West Virginia
Code [§] 48-5-103(b)” and that the order was, therefore, “contrary of law, is clear error, and
exceeds the [f]amily [c]ourt’s legitimate powers.” The circuit court further ordered that respondent
could be granted a divorce but that the family court was prohibited from considering “spousal
support, awarding of personal property, awarding of real property, . . . child support, and child
custody . . . until and when personal jurisdiction has been achieved.”
Following the circuit court’s entry of this order, the family court vacated its temporary
order that was the subject of the writ of prohibition. After a hearing in July of 2020, the family
court “proceeded to make findings of fact along with the appropriate legal analysis to determine
several reasons that personal jurisdiction over the [p]etitioner is proper.”
In March of 2021, petitioner filed a “Motion to Enforce Writ of Prohibition” in the circuit
court, arguing that the circuit court’s 2019 order granting him a writ of prohibition “precluded a
West Virginia court from ever having in personam jurisdiction over him.” The circuit court,
however, denied the motion, finding that “there is no further Order Granting Writ to enforce,” as
the family court enforced and followed all directives set forth in the circuit court’s prior order. The
circuit court went on to explain that petitioner was not actually seeking enforcement of the prior
order but was, instead, “asking for an entirely separate and new Order Granting Writ of Prohibition
that finds that the [f]amily [c]ourt’s findings of fact during the July 27, 2020, hearing were wrong
or misapplied.” The circuit court then concluded that Health Management, Inc. v. Lindell, 207 W.
Va. 68, 528 S.E.2d 762 (1999), prohibits the issuance of a writ of prohibition based on findings of
fact related to jurisdictional questions. As such, the circuit court denied petitioner’s motion.
Petitioner now appeals the circuit court’s order denying his motion.
“Where the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
On appeal, all of petitioner’s arguments concern his belief that “the circuit court erred in
concluding that the family court . . . has obtained personal jurisdiction over the petitioner.” But
petitioner fails to recognize that the form of his motion did not require the circuit court to undertake
a full review of the family court’s determination that personal jurisdiction over petitioner was
appropriate. Instead, the circuit court simply declined to enforce the prior order granting petitioner
prohibition relief because, as it correctly concluded, there was nothing left to enforce. In the order
granting prohibition relief, the circuit court prohibited the family court from proceeding on certain
matters “until and when personal jurisdiction has been achieved,” and specifically cited the family
court’s failure to make specific findings regarding service on petitioner as a basis for prohibition
relief. Given that the family court vacated its prior temporary order and then issued a new order
making extensive findings as to its basis for personal jurisdiction over petitioner, it appears that
the family court fully complied with the circuit court’s order granting petitioner prohibition relief.
As such, the circuit court did not err in denying petitioner’s motion to enforce the writ of
prohibition.
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Further, petitioner’s challenge to the family court’s specific factual findings underlying its
determination that it may exercise personal jurisdiction is not a proper basis to seek a new writ of
prohibition. Petitioner filed a motion with the circuit court, which the circuit court construed as a
petition for a new writ of prohibition. We agree with the circuit court that petitioner’s challenge to
the factual findings concerning personal jurisdiction is not appropriate in prohibition. We have
explained as follows:
As this Court specified in Syllabus point 10 of Jennings v. McDougle, 83 W.Va.
186, 98 S.E. 162 (1919), “[w]hen a court is attempting to proceed in a cause without
jurisdiction, prohibition will issue as a matter of right regardless of the existence of
other remedies.” However, relief in prohibition is inappropriate where jurisdiction
turns on contested issues of fact. See Health Mgmt., Inc. v. Lindell, 207 W.Va. 68,
72, 528 S.E.2d 762, 766 (1999); Lewis v. Fisher, 114 W.Va. 151, 154, 171 S.E.
106, 107 (1933).
State ex rel. Ford Motor Co. v. McGraw, 237 W. Va. 573, 580, 788 S.E.2d 319, 326 (2016). As
such, petitioner cannot be entitled to relief.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 26, 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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