WV Memorandum Decision: Debrosky v. Walt (filed June 8, 2012)

Father filed a petition for contempt based on Mother’s failure to timely pay her proportionate share of the children’s medical bills.  Mother stated she was never furnished with copies of the bills. Family Court continued so that Mother could have time to review the bills.  Father missed the court-imposed deadline to produce the bills, but found that it did not “materially impact  the mother’s available time to prepare.”  Family Court also found that Mother was required to forward copies of any receipts showing her payments, but she had failed to do so.

Family Court entered decretal judgment for unpaid children’s medical bills  in the amount of $3,272.55 plus post-judgment interest until it was paid based on the court’s finding  that Father had persuaded the court by a preponderance of the evidence that his presented summary accurately represented the funds he had advanced.   On appeal in the circuit court, Father admitted that he had made a mistake on one bill which had been partially reimbursed by insurance.

Supreme Court affirmed family court’s finding that Mother was not prejudiced by Father missing deadline for sending her copies of the medical bills, but reversed and remanded the amount of the decretal judgment with instructions to enter a new judgment in the correct amount based on the evidence presented at the circuit court.

Click here to read decision.

WV Memorandum Decision: In re Adoption of A.P.S. (Filed 6/8/12)

ISSUE: Petitioner Father argued that Circuit Court’s erred in allowing maternal grandparents to adopt his biological child based on the finding that he abandoned child because the court knew that his ability to support the child and to have contact with her was limited due to his incarceration.
HOLDING:  Affirmed.


  • Mother consented to the adoption.
  • Child lived with maternal grandmother and stepfather for 6 months before filing petition
  • A home study was completed.
  • Child had lived with grandparents since she was seven weeks old and called them “mommy and daddy.”
  • Father was incarcerated prior to the child’s birth based on four counts of sexual abuse by a guardian against his stepdaughter (unrelated case).  He is serving two consecutive sentences of 10 – 20 years in prison.  Projected release date is 2024.

REASONING:  The adoption was in the best interests of the child.   “Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family later matters, must be the health and welfare of the children.” Syl. Pt. 3 In re Katie S., 198 W.Va. 79 (1996).  “The best interests of the child is the polar star by which decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399 (1989)  Father was incarcerated before the birth of the child and will continue to be incarcerated for a period in excess of 10 years from the date of the adoption proceedings.  The child calls the adoptive parents “mommy/daddy”.  Father will never have the opportunity to be an active father to the child.

Read full memorandum decision here:  http://www.courtswv.gov/supreme-court/memo-decisions/spring2012/11-0630memo.pdf


WVSC Opinion: Brittany S. v. Amos F. (Filed May 24, 2012)

Per curiam opinion. Reversed and Remanded Appeal from Circuit Court of Hardy County.

Issue: Notice and pleading requirements in modification of custody proceeding.

Read the opinion here: http://www.courtswv.gov/supreme-court/docs/spring2012/101634.pdf

Newsletter Archive: November 2011 – March 2012

November 2011
December 2011
January 2012
February/March 2012

Ten Tips on a Tax Credit for Child and Dependent Care Expenses

If you paid someone to care for your child, spouse, or dependent last year, you may qualify to claim the Child and Dependent Care Credit when you file your federal income tax return. Below are 10 things the IRS wants you to know about claiming the credit for child and dependent care expenses.

1. The care must have been provided for one or more qualifying persons. A qualifying person is your dependent child age 12 or younger when the care was provided. Additionally, your spouse and certain other individuals who are physically or mentally incapable of self-care may also be qualifying persons. You must identify each qualifying person on your tax return.

2. The care must have been provided so you – and your spouse if you are married filing jointly – could work or look for work.

3. You – and your spouse if you file jointly – must have earned income from wages, salaries, tips, other taxable employee compensation or net earnings from self-employment. One spouse may be considered as having earned income if they were a full-time student or were physically or mentally unable to care for themselves.

4. The payments for care cannot be paid to your spouse, to the parent of your qualifying person, to someone you can claim as your dependent on your return, or to your child who will not be age 19 or older by the end of the year even if he or she is not your dependent. You must identify the care provider(s) on your tax return.

5. Your filing status must be single, married filing jointly, head of household or qualifying widow(er) with a dependent child.

6. The qualifying person must have lived with you for more than half of 2011. There are exceptions for the birth or death of a qualifying person, or a child of divorced or separated parents. See Publication 503, Child and Dependent Care Expenses.

7. The credit can be up to 35 percent of your qualifying expenses, depending upon your adjusted gross income.

8. For 2011, you may use up to $3,000 of expenses paid in a year for one qualifying individual or $6,000 for two or more qualifying individuals to figure the credit.

The qualifying expenses must be reduced by the amount of any dependent 9. care benefits provided by your employer that you deduct or exclude from your income, such as a flexible spending account for daycare expenses.

10. If you pay someone to come to your home and care for your dependent or spouse, you may be a household employer and may have to withhold and pay Social Security and Medicare tax and pay federal unemployment tax. See Publication 926, Household Employer’s Tax Guide.

For more information on the Child and Dependent Care Credit, see Publication 503, Child and Dependent Care Expenses. You may download these free publications from www.irs.gov or order them by calling 800-TAX-FORM (800-829-3676).

POST TAKEN FROM IRS TAX TIPS – Issue Number:    IRS Tax Tip 2012-46


WVU Recognized as “Top Tier” Law School by U.S. News and World Report

West Virginia University’s College of Law has been recognized as a “Top Tier” law school by U.S. News and World Report’s 2013 edition of “America’s Best Graduate Schools” for the third consecutive year, according to a news release from WVU.

The College was also named a “Go-To” law school by the National Law Journal last week. Officials said the College was also ranked 15th nationally in Best Law Schools in Public Interest in the Winter 2011 edition of preLaw Magazine.

Officials said the College of Law was named one of the “Top 40 Best Value” law schools as well.

“Clearly, the momentum at the WVU College of Law continues to build,” said Joyce McConnell, College of Law dean. “Being recognized as a Top Tier law school by U.S. News and World Report and as a “Go-To” law school by the National Law Journal puts us among the top institutions in the country and reflects the hard work of our students and faculty. Our recent initiatives and future plans will help us build on this trajectory.”

WVU recently initiated three new educational opportunities that help state citizens and enhance the education of future lawyers. Officials said the College of Law also launched its Center for Energy and Sustainable Development under the leadership of Professor James Van Nostrand.

WVU became the first law school in the country to partner with a Veteran’s Administration hospital, the Louis A. Johnson VA Healthcare System of Clarksburg, which serves 23,000 veterans in late 2011, according to the news release.

Officials said law students who work in the College of Law’s Clinical Law Program will provide veterans with free legal representation through the Veterans Assistance Program.

Read Full Article: http://law.wvu.edu/news_events/2012/03/13/wvu-recognized-as–top-tier–law-school-by-u-s–news-and-world-report

Original article: http://www.wboy.com/story/17146944/wvu-recognized-as-top-tier-law-school-by-us-news-and-world-report


WVSC Memorandum Decisions – March 2012

Ennis v. Cox (Filed 3/9/2012)
No abuse of discretion by Kanawha County Family Court Judge in denying award of attorney’s fees and in refusing to invoke sanctions at each parties’ request.

In re the adoption of Wesley G.
(Filed 3/9/12)
The Court will not presume error on the part of the lower court.  Here, the Appellant did not carry his burden of showing error in the judgement of which he complains due to his failure to include any transcripts in the appellate appendix record.
Even though the Circuit Court’s Order did not cite the statute regarding abandonment, it was obvious from the findings of fact that the Court concluded abandonment existed within the meaning of WV law.

D.G.L. v. D.K.L.(Filed 3/12/12)
Father/Appellant alleges seven (7) assignments of error on appeal from a Circuit Court’s decision to affirm the Family Court of Hampshire County.  WVSC Affirmed.
Alleged Error 1: Father argued that the Circuit Court should have considered his arguments ex mero motu despite some issues not being properly preserved below.  Citing South Carolina case law, Father argued that the rights of a minor child should take precedence over procedural rules.  However, that was not mandatory authority and the Court refused to find error.
Alleged Errors 2,3, 4, and 6: The Court refused to decide nonjurisdictional questions which were not considered and directed by the Court from which the appeal was taken.
Alleged Error 5: Father argued that the Guardian Ad Litem was biased against him, but did not present any evidence or challenge the GAL on the issue below.  Circuit Court was correct to hold it couldn’t speculate as to events about which no testimony was presented.
Alleged Error 7: Father argued that the WVSC failed to clearly define and establish standards for the role of GAL in the private custody case as it had done in abuse and neglect proceedings. The WVSC declined to address this error.

Workman v. Workman (Filed 3/12/12)
Mother/Appellant alleges that the Circuit Court erred in affirming a Greenbrier County Family Court’s Order which granted in part and denied, in part, her Petition to Modify the Parenting Plan. The WVSC found no error and affirmed.
Specifically, Mother argued that the modified plan failed to address the fact that the child’s paternal grandmother had assumed custodial responsibility for the child in place of the Father. She argues that this led to constant conflict and interference with Mother’s parental rights.
Father argued that the plan was modified to address the conflict while maintaining stability of shared parenting and instituting specific provisions to ensure participation of the parties and reduce conflict by eliminating contact Mother and the paternal grandmother.  Father denies that he has allowed the grandmother to take over his parenting responsibilities.

West Virginia Legislature – 2012 Completed Legislation

Click here to see list of 2012 completed legislation related to family law.

New WVSC Opinion: Romano v. Greve (filed 2/23/2012)

Issue: Whether a parties’ child support obligations can be determined based upon an agreed-upon income calculation methodology that deviates from the statutory child support guidelines or whether it had to be ascertained pursuant to strict application of the statutory guidelines.

Facts: The parties are attorneys with fluctuating income and uncertainty as to the precise amount of their future earnings. Instead of using the methodology stated in the child support guidelines, the parties agreed to recalculate child support on a yearly basis based on the previous years income, with appropriate adjustments for child care expenses and health insurance only.  The calculated amount would be the fixed child support obligation for that year, not subject to modification, retroactive or otherwise.

Holding:  Yes, child support obligations can be determined upon an agreed-upon methodology that deviates from statutory child support guidelines where:

  • Valid agreement of the parties (case: in writing and approved by Fam. Court)
  • Application of the guidelines is inappropriate in the specific case (WV Code 48-13-702(a))(case: both parties were attorneys with fluctuating incomes on a yearly basis)
  • Specific findings of fact as to the  reason for the deviation and the amount of the calculated guidelines award stated on the record. (WV Code 48-13-702)

*What do you think?  On page 14 of the Final Order, the Court implies that it may not uphold a strict deviation where the parties agree not to use the child support guidelines at all.  Parties agreement here was okay because they only deviated from strict application, but did not “denounce [the guidelines] use.”

Read the Opinion Here: http://www.courtswv.gov/supreme-court/docs/spring2012/11-0679.pdf

WVSC Opinion: Zickefoose v. Zickefoose (filed Feb. 2012)

New Syllabus Point:  In determining the amount of spousal support to be awarded pursuant to the factors enumerated in W.Va. Code, 48-6-301(b)(1)-(20) [2001], federal, service-connected veterans disability benefits received by the payor spouse may be considered by the family court as a resource, along with the payor’s other income, in assessing the ability of the payor to pay spousal support. Such consideration by the family court is not precluded by 10 U.S.C. § 1408 [2009] of the Uniformed Services Former Spouses’ Protection Act or 38 U.S.C. § 5301 [2003] concerning the nonassignability of veterans benefits.

Read the Opinion Here: http://www.courtswv.gov/supreme-court/docs/spring2012/11-0073.pdf