Robert S. v. Kate L.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 3, 2026
ROBERT S.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-257 (Fam. Ct. Berkeley Cnty. Case No. FC-02-2024-D-310)

KATE L.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Robert S.1 (“Father”) appeals the Family Court of Berkeley County’s
June 12, 2025, order directing him to pay $2,450 in attorney’s fees, as well as other issues.2
Respondent Kate L. (“Mother”) did not participate in the appeal.3

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Father and Mother were married on November 17, 2007, in Massachusetts. They
share three children, born in 2009, 2011, and 2014. The parties’ final divorce hearing was
held before the Family Court of Berkeley County on July 16, 2024, with both parties
appearing pro se. The family court entered its final order on July 18, 2024, which included
the following findings of fact and conclusions of law:

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Father is self-represented.
3
We recognize our limited and circumspect review of a family court order in an
uncontested appeal, like this one, when the respondent fails to participate on appeal to
support the order.

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• The parties entered a “Separation and Property Settlement Agreement and
Parenting Plan” (“Agreement”) on April 29, 2024, which the court
adopted and incorporated into the final divorce order.
• Mother was ordered to pay $1,166 in monthly child support to Father.
• As per the parties’ Agreement, Mother was ordered to pay Father $42,000
in lump sum spousal support within sixty days of the entry of the order.
• Mother waived spousal support.
• The parties will have shared decision-making authority over the children.
• The parties will have a 50-50 parenting plan. Mother will have Mondays
and Tuesdays, overnight. Father will have Wednesdays and Thursdays,
overnight. The parties will alternate weekends from Friday evening until
Monday morning. Holidays and summer break would also be shared
equally.
• The parties’ Agreement was in the children’s best interest.
• The parties’ Agreement was not obtained by fraud, duress, or other
unconscionable conduct.
• The parties “agree that the [. . .] children shall continue to attend St.
Joseph’s Catholic School (“St. Joseph’s”) under 529 funds.”
• The parties agree that “the children shall continue to attend St. James
Catholic Church on Sundays and Catholic Holy Days of Obligation.”

On December 20, 2024, Father filed a motion to enforce the divorce order’s
provision that the children continue to attend St. Joseph’s, then a K-8 private school,
alleging that the parties agreed that their oldest child would attend the school for high
school when it opened the next school year.4 Father alleged in his motion that he believed
Mother intended to move to the Musselman High School district so the children could
attend the public school and ride the bus home, and that she had failed to attend St. Joseph’s
high school open house, failed to comply with the parties’ Agreement that the children
would attend church regularly, and fostered the children’s expectations about attending
public school. Mother did not respond to Father’s motion, and on January 14, 2025, Father
filed a motion for default judgment.

On February 13, 2025, Mother filed a counter-petition for modification, alleging
that a material change in circumstances had occurred in that St. Joseph’s high school did
not open as planned and the parties’ oldest and middle children desired to attend public
high school. Additionally, Mother stated that Father’s home was destroyed by fire, which

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At the time of the final divorce hearing in July 2024, the parties’ oldest child was
a rising ninth grader. When school started in fall 2024, St. Joseph’s high school was not
open, and the oldest child attended Musselman High School, a public school, for the 2024-
2025 school year. St. Joseph’s high school was later scheduled to open for the 2025-2026
school year and Father was offered a teaching position there.
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prevented him from exercising his fifty percent of their shared parenting time, and the
children had primarily resided with Mother since the fire occurred. As such, Mother sought
to be named the primary custodial parent, asked the court to allow the children to decide
where they would attend school, and requested that the court recalculate child support
based on the custodial allocation. On February 26, 2025, Mother filed a motion for $3,600
in attorney’s fees due to Father’s alleged “frivolous and unfounded legal filings.”

On March 3, 2025, Father filed a response to Mother’s motion for attorney’s fees,
arguing that Mother failed to specify which of his filings was frivolous. On March 10,
2025, the family court ordered the parties to attend mediation, which was unsuccessful. On
March 12, 2025, Father filed a motion for clarification regarding the application of West
Virginia Code § 48-9-209 to their custodial dispute, which the court interpreted as a request
for legal advice, reiterated that Father should consider hiring competent legal counsel who
could provide guidance and clarification on such issues of law, and took his motion under
advisement, by order entered March 13, 2025.

On April 16, 2025, Father filed a memorandum he titled, “Submission Regarding
Parental Fitness and Pattern of Conduct of [Mother]” (hereinafter “Submission”). In the
Submission, Father alleged “serious contextual concerns regarding [Mother’s] character,
behavior, and ongoing influence on the parties’ children[.]” Father attached text messages
allegedly obtained from Mother’s phone and what he characterized as a chronology of
relevant events that led to the parties’ divorce, arguably for the purpose of explaining what
he felt was the “critical importance” of the Catholic school environment for the children.

The family court conducted a final hearing on all pending motions on April 9, 2025.
At the hearing, Father referred to Mother’s allegedly immoral behavior and advocated for
the children to attend school at St. Joseph’s because he believed it was in their best interest
to be in an environment where “morality is taught as something that is non-negotiable.”
However, Father admitted that the parties did not expressly account for the children
attending St. Joseph’s beyond eighth grade in their Agreement because at the time it was
drafted, the high school was not open, and the school served only kindergarten through
eighth grade. He further testified that the children had expressed their respective desires
not to attend St. Joseph’s for high school and that they would prefer to attend a different
school. Upon cross-examination, Father admitted that he filed his motion to enforce not for
the current school year, because St. Joseph’s high school was still not open and no students
were enrolled. Rather, he stated his motion and his request for relief were for the following
school year and were intended to prevent any prospective issues.

Also at the final hearing, Mother withdrew her request to modify the parenting plan
because Father had obtained a new residence, and the parties resumed operating under their
50-50 parenting plan. However, Mother still sought sole decision-making authority for the
children’s education. Mother testified that she had originally agreed that the children would
attend St. Joseph’s for high school, but because the oldest child was already enrolled in

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public school and liked it, she asked that the children be able to choose where they attend
school in the future. Because of their ages, the court interviewed the parties’ two oldest
children in-camera about their preferences regarding school.

On April 25, 2025, Father filed an objection to Mother’s motion for attorney’s fees,
arguing that Mother sought reimbursement for nearly all her legal work even though some
of her filings were withdrawn.

By order entered on June 12, 2025, the family court made the following findings of
fact and conclusions of law:

• The information alleged by Father in his Submission was irrelevant to the
April 9, 2025, hearing and the motions pending before the court, and as
such, would be given such weight.
• The Submission shall not be disseminated to any third parties not
involved in the case. Upon sufficient credible evidence of a violation, the
violating party will be fined $5,000 per occurrence.
• It was disclosed to the court during its in-camera interviews of the two
oldest children that the parties’ children never attended St. Joseph’s until
fall of 2024, and the oldest child never attended at all, as they had been
homeschooled since 2020.
• The court was under the incorrect assumption that the children had
attended St. Joseph’s all along.
• Mother sought reimbursement for attorney’s fees she incurred as the
result of responding to Father’s multiple filings, noting some of the filings
were unnecessary or frivolous.
• Father filed an interlocutory appeal to the Intermediate Court of Appeals,
which was dismissed for lack of jurisdiction, but caused Mother to pay
counsel for a response.
• Mother had attorney’s fees that totaled over $5,500, not including fees for
the final hearing and any subsequent work after the hearing.
• Pursuant to Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996),
Father has asserted unfounded claims for vexatious purposes that delayed
attention from the valid claims and required responsive pleadings from
Mother. Such filings were improper in nature, frivolous, and not in
accordance with the standard practice of law, and although Father was
not represented by counsel, he chose to file these documents. Father
should accept the results that his filings caused. Most of Father’s
pleadings after the initial petition were irrelevant, in poor taste, or were
inappropriately asking the court to divulge how it makes its rulings or
seeking legal advice. A number of Father’s pleadings would not have
been filed had he obtained counsel.

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• Mother’s counsel’s $350 hourly fee was reasonable in light of her years
of experience as a family law practitioner. Father was employed and
could afford to pay Mother’s legal fees, which were exacerbated by
Father’s conduct during the proceedings. The case became litigious due
to Father’s conduct, and the fees are not excessive.
• Father shall reimburse Mother $2,450 for attorney’s fees. The court
excluded the $700 fee for responses to Father’s initial pleading and for
Mother’s counter-petition for modification.
• Father shall pay Mother no less than $350 per month until the attorney’s
fees are paid in full.
• Father’s motion to enforce divorce decree and motion for default
judgment was denied.
• The issue of high school in the Agreement is silent and is, therefore, not
enforceable by the court, as the Agreement referred to the school as “St.
Joseph Catholic School” and “high school” was not referenced.
• The parties could have included separate language in their Agreement
stating that the children would attend St. Joseph’s high school, if opened,
and, in the alternative, stated where the children would go to school until
such time, but that language is not present in the Agreement.
• Father’s motion for summary judgment was denied.
• The parties will continue to exercise shared decision-making authority for
education. If the parties cannot agree on St. Joseph’s high school, the
default will be the local public high school, Musselman High School. The
children will attend St. Joseph’s through eighth grade.
• There was no change in circumstances warranting the modification
requested by Mother; the petition for modification was denied.
• The previous 50-50 parenting plan shall remain in place.

Father now appeals the June 12, 2025, final order.

For these matters, we apply the following standard of review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review the
findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

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On appeal, Father raises seven assignments of error. Because several are similar,
they will be consolidated for clarity and efficiency. See generally Tudor’s Biscuit World of
Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (stating that “the
assignments of error will be consolidated and discussed accordingly”); Jacquelyn F. v.
Andrea R., No. 16-0585, 2017 WL 2608425, at *3 n.2 (W. Va. June 16, 2017)
(memorandum decision) (restating assignments of error where they involve clearly related
issues).

In Father’s first assignment of error, he asserts that the family court misapplied West
Virginia Code § 48-9-209 (2024) by recharacterizing his motion to enforce the parties’
divorce decree as a custodial modification without making a threshold finding of material
change in circumstances. This argument lacks merit. West Virginia Code § 48-9-402(b)
(2022) addresses a family court’s authority to modify parenting plans when there has been
no showing of changed circumstances and states as follows:

(b) The court may modify any provisions of the parenting plan without the
showing of the changed circumstances required by § 48-9-401(a) of this code
if the modification is in the child’s best interests, and the modification:
(1) Reflects the de facto arrangements under which the child has been
receiving care from the petitioner, without objection, in substantial deviation
from the parenting plan, for the preceding six months before the petition for
modification is filed, provided the arrangement is not the result of a parent’s
acquiescence resulting from the other parent’s domestic abuse;
(2) Constitutes a minor modification in the plan;
(3) Is necessary to accommodate the reasonable and firm preferences of a
child who, has attained the age of 14; or
(4) Is necessary to accommodate the reasonable and firm preferences of a
child who is under the age of 14 and, in the discretion of the court, is
sufficiently matured that he or she can intelligently express a voluntary
preference;
[. . .]

Here, the family court did not err or abuse its discretion when it ruled that the children may
attend public high school if the parties are unable to reach an agreement on the issue, as
the above-cited section grants the court such authority. Therefore, we find no basis in law
to warrant relief on this issue.

Next, in Father’s second, fifth, sixth, and seventh assignments of error, he contends
that the family court erred when it threatened him with sanctions for a sealed filing made
in good faith, disregarded his rights as a pro se litigant, that the court’s final order lacked
due care and consistency, and that the court substituted its own legal theory to justify non-
enforcement of the parties’ July 18, 2024, final divorce order. More specifically, Father
argues that the court’s dissemination ban relating to his submission was unconstitutional

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and imposed without notice. We disagree. West Virginia Code § 48-1-303(c) (2001) states,
“[w]hen sensitive information has been disclosed during a hearing or in pleadings, evidence
or documents filed in the record, the court may, sua sponte or upon motion of a party, order
such information sealed in the court file.” Additionally, West Virginia Code § 51-2A-7(a)
(2013) gives family courts the authority to “manage the business before them,” “compel
and supervise the production of evidence,” and “prevent abuse of process.” Therefore, we
cannot conclude that the family court abused its discretion or disregarded Father’s
constitutional rights when it ordered him not to disseminate confidential information about
Mother.

Finally, in Father’s third and fourth assignments of error, he asserts that the family
court improperly awarded attorney’s fees to Mother for her withdrawn, denied, or
procedurally improper motions, and failed to include findings of fact of vexatious or
oppressive conduct by Father as required by West Virginia Code § 48-1-305(c) (2001),
which states as follows:

When it appears to the court that a party has incurred attorney fees and costs
unnecessarily because the opposing party has asserted unfounded claims or
defenses for vexatious, wanton or oppressive purposes, thereby delaying or
diverting attention from valid claims or defenses asserted in good faith, the
court may order the offending party, or his or her attorney, or both, to pay
reasonable attorney fees and costs to the other party.

We disagree with Father. The family court found that Father made unnecessary and/or
frivolous filings, filed an interlocutory appeal that resulted in dismissal, filed pleadings that
were not germane to the issues before the court, and filed documents regarding Mother’s
parental fitness and pattern of conduct that were done in very poor taste solely to humiliate
her. The family court further found that if Father had been represented by counsel, a
number of his filings which created work for Mother would not have occurred. Therefore,
we conclude that the family court did include findings of fact of vexatious or oppressive
conduct by Father.

Additionally, the Supreme Court of Appeals of West Virginia has held the
following:

In divorce actions, an award of attorney’s fees rests initially within the sound
discretion of the family law master and should not be disturbed on appeal
absent an abuse of discretion. In determining whether to award attorney’s
fees, the family law master should consider a wide array of factors including
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

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party making the divorce action necessary, and the reasonableness of the
attorney’s fee request.

Syl. Pt. 4, Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996). Here, the family
court conducted a thorough analysis of the Banker factors and determined that Mother
should be awarded attorney’s fees. Because the family court appropriately weighed the
factors set forth in West Virginia Code § 48-1-305(c) and Banker, we cannot find that the
court abused its discretion, as the record below supports the court’s findings.

Accordingly, we affirm the family court’s June 12, 2025, order.

Affirmed.

ISSUED: February 3, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

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