Jackson E. v. OLGA E.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
JACKSON E., May 1, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-283 (Fam. Ct. Kanawha Cnty. No. 19-D-1112)

OLGA E.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Jackson E.1 appeals the “Second Final Order on Contempt” entered by
the Family Court of Kanawha County on November 4, 2022. Jackson E. asserts that the
family court erroneously held him in contempt and provided him no opportunity to purge.2
Respondent Olga E. filed a response in support of the family court’s ruling. Jackson E. did
not file a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court’s decision, but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for resolution in a memorandum decision.
For the reasons set forth below, the family court’s decision is affirmed, in part, reversed,
in part, and remanded to the family court with directions set forth herein.

Jackson E. and Olga E. are divorced and share four children: M.E., age eighteen;
C.E., age sixteen; T.E., age thirteen; and B.E., age twelve. Jackson E. was granted primary
custody of M.E. and C.E.; Olga E. was granted primary custody of T.E. and B.E. Jackson
E. filed a petition for modification of the parenting plan in August 2020. Hearings on the
petition for modification were held on July 30, 2021, and August 4, 2021. By order entered

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
Jackson E. is represented by Erica Lord, Esq. Olga E. is self-represented.

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August 31, 2021, Jackson E. was ordered, in part, to do the following:3 (1) enroll M.E. and
C.E. in after-school tutoring and/or summer school if they receive below a C-average in
any class, (2) prohibit M.E. and C.E. from working if they receive below a C-average in
any class, (3) take M.E. and C.E. to reunification therapy and individual therapy sessions,
and (4) attend weekly therapy for narcissism and domestic violence.

In late 2021 or early 2022, Olga E. filed a petition for contempt against Jackson E.,
wherein she alleged that both M.E. and C.E. failed classes, that C.E. had a job, that both
M.E. and C.E. missed multiple therapy sessions, and that Jackson E. had failed to attend
his court-ordered therapy sessions. By order entered February 10, 2022, the family court
found Jackson E. to be in contempt of its prior order based on the following: (1) his failure
to arrange tutoring for M.E. and C.E., (2) his failure to prohibit C.E. from working while
having failing grades, (3) his failure to ensure that M.E. and C.E. attended therapy sessions,
and (4) his failure to ensure that the children attended school regularly. This order also
mandated that Jackson E. either file incorrigibility petitions against M.E. and C.E in circuit
court, or secure youth services for the children through the West Virginia Department of
Health and Human Resources (“WVDHHR”). Jackson E. was also ordered to post a $5,000
cash bond as surety for his future compliance with the court’s orders.

When Jackson E. did not comply with any of the family court’s orders, Olga E. filed
a second petition for contempt on August 9, 2022. In that second petition, she alleged that:
(1) C.E. was failing classes and not receiving tutoring, (2) neither M.E. nor C.E. were
attending school regularly, (3) M.E. and C.E. were missing weekly therapy sessions, and
(4) Jackson E. had generally failed to follow the court’s orders. In support of her claims,
Olga E. provided copies of school attendance records, as well as therapy records which
showed that sessions were regularly cancelled by Jackson E.

A hearing on the second petition was held on October 11, 2022. By order entered
November 4, 2022, the court found that Jackson E. was in contempt by virtue of: (1) his
failure to secure tutoring for M.E. and C.E., (2) his failure to seek youth services for M.E.
and C.E. after his attempt to file an incorrigibility petition was unsuccessful, (3) his failure
to make sure the children attended school regularly, and (4) his failure to make the children
attend weekly therapy. That same day, the family court entered a separate order releasing
the $5,000 bond to Olga E. and ordering Jackson E. to post an additional $7,500 cash bond
within thirty days to ensure future compliance with the court’s orders. It is from the
November 4, 2022, order that Jackson E. now appeals.

For family court appeals, we are guided by the following standard of review:

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In that order, Jackson E. was given additional directives by the family court, which
are not relevant to this appeal.

2
“In reviewing . . . 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. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va. __, __, __ S.E.2d __, __, 2022 WL
17098574, at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005)
(specifying standards for appellate court review of family court order).

On appeal, Jackson E. raises several assignments of error. We will address each of
these in turn. First, Jackson E. argues on appeal that the family court erred when it made
findings of fact and rulings that were outside the scope of the petition and then failed to
include those findings and rulings in its written order. We disagree. After reviewing the
recording of the October 11, 2022, hearing, it is clear that the family court was simply
engaging in conversation with the parties, and those exchanges did not include any findings
of fact or rulings.

In his second assignment of error, Jackson E. contends that the family court erred
in finding that he was in contempt for C.E.’s school absences when the evidence presented
showed that Jackson E. had been working to correct C.E.’s behavior. Again, we disagree.
The record reflects that Jackson E. failed to follow any of the court’s instructions with
regard to C.E. While Jackson E. testified that he unsuccessfully attempted to file
incorrigibility petitions against M.E. and C.E., he failed to make any effort to secure youth
services for the children through the WVDHHR. Jackson E. also failed to obtain tutoring
for C.E. as required by the court. Therefore, we find that the family court did not err by
holding Jackson E. in contempt.

Jackson E. next argues that the family court erred in finding him in contempt for
M.E.’s excessive school absences because M.E. had reached the age of majority when the
contempt petition was filed. Once again, we disagree. Our review of the record shows that
M.E. turned eighteen on September 28, 2022, and that Olga E.’s petition was filed on
August 9, 2022.

Lastly, Jackson E. contends that the family court erred in ordering him to pay a
$7,500 cash bond as surety for a future finding of contempt and failing to direct him on
how to purge said contempt. We agree.

For contempt matters that do not involve domestic violence protection orders, a
family court judge may enforce compliance with their orders by using remedial or coercive
sanctions designed to compensate a complainant for losses sustained and to coerce
obedience for the benefit of the complainant. Sanctions must give the contemnor an
opportunity to purge himself or herself. Further, in selecting sanctions, the court must use

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the least possible power adequate to the end proposed. See W. Va. Code § 51-2A-9(b)
(2012).

By contrast, for contempt matters which stem from violations of domestic violence
protections orders, family courts are required to utilize the sanctions available under West
Virginia Code § 48-27-901(c) (2010), which provides:

Upon a finding of contempt, the court may order the violator to comply with
specific provisions of the protective order and post a bond as surety for
faithful compliance with the order. The bond may not be a personal
recognizance bond and shall be in an amount that does not exceed the ability
of the violator to post. The bond may not be waived by a fee waiver pursuant
to the provisions of section one, article two, chapter fifty-nine of this code.

In the case sub judice, the family court’s application of West Virginia Code § 48-
27-901(c) was erroneous because the contempt petition before it stemmed from a custody
modification rather than a domestic violence protection order. The family court should
have held Jackson E. in contempt under § 51-2A-9(b) and provided an opportunity to
purge said contempt. If Jackson E. then failed to purge the contempt, the family court
would have the discretion to order Jackson E. to pay $7,500 to Olga E. as a monetary
sanction. Because Jackson E. was held in contempt pursuant to § 48-27-901(c), the cash
bond could potentially sit untouched in perpetuity if no contempt is committed in the
future.

Accordingly, as to the family court’s order entered on November 4, 2022, we
affirm the family court’s ruling with respect to Jackson E.’s first three assignments of
error, but reverse the family court’s imposition of the $7,500 cash bond. Therefore, we
remand this matter to the family court with direction to enter an order for the immediate
return of the $7,500 bond to Jackson E. The clerk is directed to issue the mandate
contemporaneously with this memorandum decision.

Affirmed, in part, Reversed, in part, and Remanded.

ISSUED: May 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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