“[T]he best interests of the child is the polar star by which decisions must be made which affect children.”
How later courts described this case
- “[T]he best interests of the child is the polar star by which decisions must be made which affect children.”
- “[Petitioner] has made a number of impossible-to-achieve and nonsensical requests and demands of the Family Court and this Court during the course of these proceedings.”
- “The general rule is that when a question has been definitely determined by this Court its decision is conclusive on parties, privies and courts, including this Court, upon a second appeal or writ of error and it is regarded as the law of the case.”
Written by the judges who cited it.
The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Mark V. H., Respondent Below, Petitioner FILED
November 13, 2015
vs) No. 15-0350 (Putnam County 11-D-516) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Dolores J. M., Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Mark V. H.,1 pro se, appeals the order of the Circuit Court of Putnam County,
entered March 20, 2015, denying petitioner’s appeals of three separate orders of the Family Court
of Putnam County. In the first order, entered January 2, 2015, the family court increased
petitioner’s parenting time with his child to include every Wednesday from 5:30 p.m. to 7:30 p.m.,
but eliminated petitioner’s telephone visitation. In the second order, entered February 18, 2015, the
family court directed petitioner to pay a sanction of $1,000 after petitioner filed his tenth motion to
disqualify the family court judge. In the third order, entered February 20, 2015, the family court
denied a series of motions filed by petitioner that essentially sought to overturn the court’s January
2, 2015, order. Respondent Dolores J. M., pro se, filed a response.2 Petitioner filed a reply.
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 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.
1
Because this case involves sensitive facts, we protect the identities of those involved by
using the parties’ first names and initials. State ex rel. W.Va. Dept. of Human Servs. v. Cheryl M.,
177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987).
2
Respondent also filed a motion to dismiss petitioner’s appeal, arguing that petitioner is
merely rehashing arguments from his previous appeal in Mark V.H. v. Dolores J.M., 232 W.Va.
378, 752 S.E.2d 409 (2013). Because we address respondent’s argument in our discussion of the
merits of petitioner’s present appeal, we deny respondent’s motion to dismiss.
1
The parties are divorced and have one minor child, who was born on August 29, 2007. As
is pertinent to this appeal, in Mark V.H. v. Dolores J.M., 232 W.Va. 378, 385-86, 752 S.E.2d 409,
416-17 (2013), this Court affirmed the family court’s January 22, 2013, order granting petitioner
parenting time with the child every other Saturday and Sunday, beginning at 9:00 a.m. and ending
at 8:00 p.m., with no overnights. This Court also affirmed the family court’s order directing
petitioner not to take the child from the State of West Virginia. Id. In so ruling, this Court noted
petitioner’s diagnosis of personality disorder and determined that the family court properly
“recognized and emphasized that there exists potential for grave harm to this child” when he is in
petitioner’s care given petitioner’s “confirmed propensity for interpersonal conflict.” Id.
On December 18, 2014, the family court held a hearing on the parties’ cross-motions for
modification of the court’s January 22, 2013, order regarding petitioner’s parenting time. 3
Petitioner sought permanent custody of the child or, in the alternative, substantially more parenting
time with the freedom to remove the child from this State. Respondent sought to restrict
petitioner’s parenting time with the child to supervised visitation. At the hearing, the family court
heard the parties’ testimony and the testimony of two witnesses presented by petitioner,4 including
petitioner’s psychologist.5 Subsequently, in a January 2, 2015, order, the family court (1) denied
petitioner’s request for permanent custody and his request to take the child out of West Virginia;
(2) denied respondent’s request to impose supervised visitation on petitioner; and (3) increased
petitioner’s parenting time with his child to include every Wednesday from 5:30 p.m. to 7:30 p.m.,
but eliminated petitioner’s telephone visitation. The family court stated that the increase in
petitioner’s parenting time was because of petitioner’s regular therapy sessions with a qualified
mental health professional. The family court eliminated petitioner’s telephone visitation because
of the parties’ ongoing tension over phone contact with the child and because of “[petitioner]’s
frequent trouble when communicating by phone.” Finally, the family court ruled that before
petitioner’s parenting time is increased again, petitioner must show that he has continued with
therapy and refrained from his past aggressive behavior, noting that petitioner’s psychologist
“specifically declined to give any recommendation . . . regarding the expansion of [petitioner]’s
time with his son.”
Shortly after the December 18, 2014, hearing, petitioner filed his tenth motion for the
family court judge’s disqualification from his case. By an administrative order entered January 8,
2015, this Court’s Chief Justice denied the disqualification motion and directed the family court
judge to continue presiding in the case. On January 16, 2015, the family court directed a rule to
show cause to petitioner ordering him to show why he should not be sanctioned for filing a
frivolous motion. The show cause hearing occurred on January 27, 2015. Following the hearing, in
3
We have viewed the video recording of the December 18, 2014, hearing.
4
The family court’s January 2, 2015, order states that in addition to taking testimony, the
family court reviewed evidence and “relevant public records.”
5
Petitioner’s other witness was the group care director at the Teays Valley Church of God
in Scott Depot, West Virginia.
2
an order entered on February 18, 2015, the family court noted that petitioner’s disqualification
motion (1) raised issues already addressed numerous times by the family court, the circuit court,
and this Court; (2) requested sanctions against the family court in the amount of $200 trillion; (3)
demanded punitive damages in the amount of $1 billion; (4) referred to the family court judge as a
“MENTALLY ILL PATHOLOGICAL LIAR” (emphasis in original); and (5) requested that the
family court judge be immediately and permanently removed from the bench. The family court
found that “[petitioner] has clogged the courts with frivolous, harassing, offensive and impossible
demands and has exhibited little to no self-control.” See Mark V.H., 232 W.Va. at 384, 752 S.E.2d
at 415 (“[Petitioner] has made a number of impossible-to-achieve and nonsensical requests and
demands of the Family Court and this Court during the course of these proceedings.”) The family
court noted that petitioner was sanctioned on two prior occasions pursuant to Rule 11 of the West
Virginia Rules of Practice and Procedure for Family Court and that petitioner was sanctioned $250
for the first incident and $500 for the second incident. Accordingly, because petitioner filed a tenth
disqualification motion that was denied, the family court sanctioned petitioner in the amount of
$1,000.
Shortly after the entry of the family court’s January 2, 2015, order, petitioner filed four
motions that essentially sought to overturn the court’s January 2, 2015, order: (1) motion for
out-of-state travel; (2) motion for access to the child’s school; (3) motion for contempt; and (4)
amended notice of completion (which sought more time with the child). In an order entered
February 20, 2015, the family court denied the motions, finding that “despite having completed an
anger management course, [petitioner]’s personality disorder continues to control his behavior and
interactions with others and justifies a continued cautious approach” in increasing petitioner’s
parenting time.
Petitioner appealed the family court’s January 2, 2015, February 18, 2015, and February
20, 2015, orders to the circuit court. The circuit court denied all three of petitioner’s appeals in an
order entered March 20, 2015, finding that none warranted the holding of a hearing. The circuit
court stated the following:
Pursuant to [the] established appellate framework, this Court finds no basis
to disturb the Family Court’s Orders; the Family Court’s rulings are based on valid,
applicable legal precedent as applied to the factual record of this matter.
Accordingly, this Court finds neither a clearly erroneous finding of fact nor an
abuse of discretion was committed by the Family Court and, therefore, DENIES
[petitioner]’s Petitions.
(emphasis in original) Petitioner now appeals to this Court.
We review the matter under the following standard:
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
3
standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004).
Family court did not abuse its discretion in denying petitioner’s request
to substantially increase his parenting time
and denying petitioner’s request to take the child out-of-state.
Petitioner argues that his parenting time with the child should be substantially increased
and that he should be allowed to remove the child from this State for recreation. “Although parents
have substantial rights that must be protected, the primary goal ... in all family law matters ... must
be the health and welfare of the children.” Syl. Pt. 3, In Re Katie S., 198 W.Va. 79, 82, 479 S.E.2d
589, 592 (1996); see also Michael K.T. v. Tina L. T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872
(1989) (“[T]he best interests of the child is the polar star by which decisions must be made which
affect children.”). Respondent asserts that petitioner’s continuous attacks on the family court
judge, the judicial system, and respondent proves that petitioner’s personality disorder is not under
control.
More specifically, petitioner complains that at the December 18, 2014, hearing, the family
court improperly restricted his examination of his witnesses by preventing him from asking
questions that contradicted statements made in an email petitioner sent in 2012. Petitioner also
alleges that the email either never existed or was fabricated. The family court ruled at the hearing
that the fact that petitioner’s 2012 email existed and contradicted the basis for certain of
petitioner’s questions was established by its January 22, 2013, order that was subsequently
affirmed in Mark V.H. In Noland v. Virginia Insurance Reciprocal, 224 W.Va. 372, 378, 686
S.E.2d 23, 29 (2009), we noted that the doctrine of law of the case “is equally applicable to issues
that have been fully litigated in the [family] court,” but not raised on appeal. (internal quotations
and citations omitted). Therefore, we conclude that during the December 18, 2014, hearing, the
family court properly prevented petitioner from asking questions that contradicted statements
made in the 2012 email.
Second, petitioner contends that the examples of his behavior cited by the family court in
its February 18, 2015, and February 20, 2015, orders were not based on facts properly in evidence.
Even assuming, arguendo, that the family court considered incidents that it should not have, we
find that any such error was harmless. In Mark V.H., we determined that the child’s best interests
dictated that petitioner’s parenting time be limited and restricted to this State. 232 W.Va. at
385-86, 752 S.E.2d at 416-17; see Syl. Pt. 1, Mullins v. Green, 145 W.Va. 469, 115 S.E.2d 320,
321 (1960) (“The general rule is that when a question has been definitely determined by this Court
its decision is conclusive on parties, privies and courts, including this Court, upon a second appeal
or writ of error and it is regarded as the law of the case.”).
West Virginia Code § 48-9-401(a) provides, in pertinent part, as follows:
[A] a court shall modify a parenting plan order if it finds, on the basis of facts that
were not known or have arisen since the entry of the prior order and were not
4
anticipated therein, that a substantial change has occurred in the circumstances of
the child or of one or both parents and a modification is necessary to serve the best
interests of the child.
(emphasis added) To show that such a substantial change in circumstances occurred—i.e.,
petitioner is now better able to control his personality disorder and resulting behavior—petitioner
presented the testimony of two witnesses. Both witnesses admitted that the information they had
about the parties’ case and petitioner’s conduct came solely from petitioner, which the family court
found diminished their credibility. As the family court noted, petitioner’s psychologist
“specifically declined to give any recommendation . . . regarding the expansion of [petitioner]’s
time with his son.” We determine that the family court did not clearly err in finding that petitioner
did not demonstrate a substantial change in circumstances. Therefore, we conclude that the family
court did not abuse its discretion in denying petitioner’s requests for substantially more parenting
time and to be able to take the child out-of-state.
Family court did not abuse its discretion in sanctioning
petitioner $1,000 for filing a frivolous motion
Before a party may be sanctioned pursuant to Rule 11 of the West Virginia Rules of
Practice and Procedure for Family Court, a party must be given notice and an opportunity to be
heard. W.Va. Rul. Prac. & Proc. Fam. Ct. 11(c). The family court issued a rule to show cause to
petitioner and then provided him with a hearing on January 27, 2015; therefore, the court complied
with Rule 11(c). However, petitioner contends that the family court was retaliating against him for
filing a complaint with the Judicial Investigation Commission of West Virginia. We find that it is
clear from the family court’s February 18, 2015, order that the court sanctioned petitioner for filing
his tenth motion, in which he sought the family court judge’s disqualification. This Court’s Chief
Justice denied the motion on January 9, 2015. As we noted in Mark V.H., “[petitioner’s] disdain
and rage . . . toward this Court, the entire court system and especially toward [the family court
judge], has permeated a majority of his self-filed pleadings.” 232 W.Va. at 384, 752 S.E.2d at 415.
However, petitioner’s impossible-to-achieve and nonsensical requests directed at the family court
do not mean that he is entitled to file repetitive motions for the family court judge’s
disqualification. Therefore, we find that the family court properly imposed a sanction on petitioner
for filing a frivolous motion.
“A sanction imposed for violation of this rule shall be limited to what is sufficient to deter
repetition of such conduct[.]” W.Va. Rul. Prac. & Proc. Fam. Ct. 11(c)(2). The family court noted
that petitioner was sanctioned on two prior occasions pursuant to Rule 11 and that petitioner was
sanctioned $250 for the first incident and $500 for the second incident. Thus, we determined that
the family court has implemented a graduated scale for sanctioning petitioner. We find this to be
proper and conclude that the family court did not abuse its discretion in sanctioning petitioner in
the amount of $1,000.
For the foregoing reasons, we affirm the circuit court’s March 20, 2015, order denying
petitioner’s appeals of the family court’s January 2, 2015, February 18, 2015, and February 20,
5
2015, orders. Finally, the Clerk of this Court is directed to issue the mandate in this matter
forthwith.
Affirmed.
ISSUED: November 13, 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
6