This document details a court case involving an appeal from Mark Halburn regarding the family court's final divorce order and custody arrangements with his ex-wife, Dolores Martin. The court reviews various grounds for appeal, including claims of bias against Halburn and concerns about his mental health affecting his visitation rights with their child. Ultimately, the court affirms the family court's decision to limit Halburn's visitation due to findings that his behavior posed a risk of harm to the child.

1. IN THB CIRCUIT COURT OF PUf,O$A[4 OOUftT#,{$BST
2'$l3tlAI -1 P$ l:32
puTrii lA $.rr!r[,,., roun,
CASE
Phillip
RGINIA
low on
Court;
ided
DOLORES HALBURN (MARTIN),
Petitioner,
v.
MARK HALBURN,
oral arguments regarding the appeal from both parties who appeared pro
This Court's review of the Petition for Appeal is made pursuant to
$ 51-2A-l l.
2012,and October 15,2012;the January 23,2013, Final Order of the Famil
for Appeal; the accompanying memorandum; Ms. Martin's response; briefs
October 1,
the Petition
during oral
the Familyargument on April 17,2Al3; and all relevant legal precedent, this Court RE ERSES
' The Court notes Ms. Martin's claim that she did not receive service of rhe Petition for A Approximately one
(l) week after Mr. Halburn filed the Petitionfor Appeal, Ms. Martin physically appeared at
Circuit Clerk's office to obtain a copy.
11-D-516
Stowers, Judge
Respondent.
NG.IN P IN ART
FINAL DIVORCE ORDER OF FAMILY COUBT
This matter came before the Court on February 20,2013, to a Petition for
Appeal filed by the respondent below and petitioner on appeal, Mark bum, pro se, Mr.
Halburn appeals the Family Court's Final Divorce Order entered on Jatr
Petitionfor Appeat was timely filed pursuant to West Virginia Code $ 51-2
23,2013. The
-1 1. The petitioner
below and respondent on appeal, Delores Halburn, who has changed her n to Dolores Martin
and will hereinafter be referred to as such, filed a response on March 12,201 .l The Court heard
on April 17,2413.
est Virginia Code
After reviewing the record, including the recorded hearings held
e Putnam Counfy

2. y had one child,
who was born on August 29,2007. The parties moved to calif ia for a period of
r 2011. Upon the
elly was appointed
, 2A12, the Family
court's Final Divorce order pertaining to custodial allocation and
reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGR
The parties were married in Putnam County, West Virginia' in 1998.
time but retumed to West Virginia. Ms. Martin filed for divorce in Novem
recusal of Family Law Judge William Watkins, Family Law Judge Michael
to preside overthis case on January 27,2A12. (Dkt. No. 17). On March
Court entered aTemporary Order granting Mr' Halburn visitation with his
night and every other weekend, Ms. Martin was granted visitation all ot
23-24).
Order,the Family Court adjudicated issues of equitable distribution, child
evaluations, and attorney fees. (Dkt' Nos' 1i3-116)'
affirms for the
ND
every Wednesday
times. (Dkt. Nos.
12, and leading up
t of issues
ody, mental health
The relevant procedural history of this case beginning on March 3,
to the Petition for Appeal is lengthy. The parties have litigated an
pertaining to their divorce and the custody of their son' As an appell body, this Court
analyzes only the issues raised by Mr. Halburn in the Petition for Appeal which contests the
y Court granted the
the Final Divorce
Family Court's Final Divorce Order entered on January 23,2013. The Fami
parties' petition for divorce on the ground of irreconcilable differences. I
Mr. Halburn identifies four grounds for appeal in the Petition for , and he cites
numerous United States Supreme Court cases in the accompanying um, consisting of

3. approximately fifteen (15) pages. Ms. Martin rebutted each
arguments on April 17 ,2013. The Court addresses each ground
ground. Tlie Court heard oral
for appeal bllow.
i
II. STANDARD OF REVIEW
The Court's review of the Family Court's decision is not de novol this Court merely
reviews the Family Court's findings of fact and appiications of law. Under the structure of the
Family Court system, this Court's jurisdiction is limited to reviewine the erlidence presented to
l
the Family Court and determining whether the Family Court made an error iln its (l) findings of
fact, which are reviewed under a clearly erroneous standard or (2) applicalion of law to facts,
l
under an abuse of discretion standard. W. Va. Code $ 5l-2A-14. The Court acts as an appellate
court; it may not accept new evidence not presented to the Family Court. tf
"
S 51-2A-14(b).
This Court may affirm, reverse, or remand the decision of the Family Cou]rt. Id. at $ 5l'2A'
1a(a). However, this Court is not authorized to reverse the case simply lecause it wishes to
substitute its decision for that of the Family Court.
The Family Court's findings of fact are reviewed under a ciearly prroneous standard'
W. Va. Code g 51-2A-14(c). The Supreme Court of Appeals of West Virginia has determined
that a finding is clearly erroneous if the court "is left with the definite una n{- conviction that a
mistake has been committed." In Interest of Tffiny Marie,S., 196 W. Va. 2P3,231,470 S'E'2d
177,185 (W. Va. 1996). This Court cannot overtum a finding "simply be{ause it would have
decided the case differently." .1d. I
l
The Family Court's application of law to facts is reviewed under an abuse of discretion
standard. W. Va. Code $ 51-2A-14(c). The Supreme Court of Appeals o{West Virginia has
found that an abuse of discretion has occurred when a court (1) ignoresl a "material factor
deserving significant weight," (2) relies upon an improper factor, or (3) makfs a serious mistake
3
L
I
I

4. in weighing the factors. See Gentry v. Mangum,
l 99s).
195 W. Ya.512,466 S. 171, fn.6 (W. Va.
claim that the Family Court erred in awarding custody of the
limiting his visitation. He states the following:
Family Court Judge egregiously abused discretion under Family R
make findings to follow W.Va. shared parenting statute $48-1-23
failed to consider W.Va. $48-9-209 (1-5). Family Court judge fail
the shared statute in awarding shared custody to the parties and based
on arbitrary and capricious discretion that Respondent father h
problems. The alleged emotional problems are not based on facts
Petitionfor Appeal, pp. l-2, February 20,2413.
The Family Court changed Mr. Halburn's visitation times with
Temporary Order entered on March 3, 201'2, Ms. Martin was deemed it
parent. Mr. Halburn was granted visitation rights every Wednesday ni
weekend. Under the Final Divorce Order entered on January 23, 2013
reduced his visitation to "every other Saturday and Sunday commencingal9
at 8:00 p.m, each day beginning February 2,2013," Final Divorce Order, p.
III. OPINION
l. In his first ground for appeal, Mr. Halburn argues what the urt interprets as a
arbitrarily used by the Judge in a personal anti-male vendetta against Respondent
father. Judge's decision had no relevant findings supported by re law given
that most of the Judge's decision was based on an error-filled ps h, report of
Respondent, using points ofreport for personal attacks upon R nt, because
violatingRespondent had filed judicial complaint(s) against Judge fi
Respondent's constitutional rights to shared parenting time.
chi to Ms. Martin and
e 22(b) to
as well as
to consider
his decision
emotional
are being
Under the
primary custodial
and every other
the Family Court
00 a.m. and ending
.23,2013. ln
to six p.m. onaddition, the Family Court granted Mr. Halburn visitation with his son from
the child's birthday, the father's birthday, Easter, Father's Day, sgiving Day, and
Christmas day. Id. at p. 30. Every Thursday at 6:00 p.m', Mr. Halbum
4
to telephone

5. the child but he must provide and pay for the phone. Id' The Family
prohibition on Mr. Halburn from removing the child from the State of West
The Family Court ordered Mr. Halburn to obtain therapy and then seek
parenting plan.
This premise of this first argument is that the Family Court failed
lrndings of fact in the Final Divorce Order in accordance with Rule 22(b)
Rules of Practice and Procedure for Family Courts. That rule states, in part,
which both parties are self-represented, the court shall prepare all orders a
proceedings in which one or both parties are represented by attomeys, the
or more attorneys to prepare an order or proposed findings of fact. ."
Order includes a heading entitled "Allocation of Custodial Responsibili
several subsections that altogether total approximately twenty-five (25)
the Family Court's order and findings of fact to be sufficient under Rule
Practice and Procedure for Family Courts.
The Family Court's primary reason stated for changing Mr' Hal
with his son is the fear that Mr. Halbum's erratic behavior will subject the
the future. The Family Court based its opinion on three sources of informati
who evaluated Mr. Halbum, Ms. Martin's testimony, and Mr. Halburn's acti
The Family Court ordered the parties to undergo psychological eval
evaluated Mr. Halburn and diagnosed him with adjustment disorder and
The basis of this diagnosis is Mr. Halburn's behavior towards others and
conflicts he experiences. In his report, Dr. Hudson discusses Mr. Hal
conflicts and how those relationships affect him. More importantly, Dr. H
maintained the
irginia. Id. atp.5.
ification of this
include sufficient
f the West Virginia
i]n proceedings in
findings of fact. In
may assign one
The Final Divorce
. That section has
. The Court finds
b) of the Rules of
's visitation time
ild to violence in
: the psychologist
ions. Dr. Hudson
rsonality disorder.
he perceives the
urn's interpersonal
stated that the

6. parties' child will likely be exposed to these conflicts created by Mr. Ha burn. Dr. Hudson
testified via telephone during the trial held in this matter that additional flicts are likely to
occur and that he could not rule out the possibility that the child will conseq
danger. A previous psychological evaluation of Mr. Halbum was conducted
Iy be exposed to
who opined that Mr, Halbum has a propensity for aggressive behavior and
by Mr. Halburn should be taken seriously.
Dr. Thistlewaite,
any threats made
Ms. Martin's testimony seemed important to the Family Court she relayed the
untary departure
therefrom.2 The Family Court also noted Ms. Martin's testimony re ng Mr. Halburn's
previous arrests. Ultimately, Ms. Martin argued that Mr. Halburn is likely
same behavioral characteristics of those noted by the psychologists who
testified about specific instances involving airports and hotels in whic
allegedly involved in nonviolent conflict resulting in his removal or
the future that will place the child in reasonable apprehension of physi
Halbum would be permitted to take the child out of state, and many other
these arguments and Mr. Halburn's behavior, the Family Court concluded
luated him. She
Mr. Halbum was
create conflict in
harm or that Mr.
matters. Based on
Halburn will be arrested and the child will be stranded in the care of stran
With regards to Mr. Halburn's own actions during the course of this itigation, this Court
recognizes that the Family Court below had ample opportunity to rve Mr. Halburn's
y Law Judge Kellybehavior. There were numerous alguments involving the propriety of Fami
himself, the propriety of Ms. Martin's attorney, Ms. Martin's fitness to pare whether the child
would be permitted to visit his grandmother in California before she whether Mr.
t This Court has reviewed the DVD recordings of the Family Court hearings held on Octob I and October 15,
2012, and notes that the parties dispute whether Mr. Halburn was removed ltom these I
due to his dissatisfaction with the services provided.
s or voluntarily left

7. i
I
I
I
l
as a matter of law that it would be manifestly harmful to for]tris father to
have any parenting time beyond [Saturday and Sunday visitatioril' Mr.
Halburn's personality disorder has in the past, and much more likely fhan not will
in the future, put at an increased risk of harm caused by third parties
reacting to Mr. Halburn's . . . behavior.
Final Divorce Order, p. 30, Jan.23,2013.
I
I
The issue before the Court is whether, under West Virginia law, the
{amily
Court abused
its discretion by limiting Mr. Halburn's visitation with his child becausd of his personality
disorder. When determining child custody issues, the Family Court encoura[es parties to create
l
an agreed parenting plan. Frequently, such a goal is not accomplished by tw{ adults ending their
marriage and separating their once joined lives. When the parents cannol agree on custodial
responsibility, the Family Court is to i
allocate custodial responsibility so that the proportion of custodial tiine the child
spends with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents' separation . . .
except to the extent required under section 9-209 or necessary to . .1. permit the
child to have a relationship with each parent who has performed
{ reasonable
share of parenting functions.
W. Va. Code $ a8-9-206(aX1). I
I
Before Ms. Martin filed for divorce, both parents in this case worked for varying periods
of time as full time and/or substitute teachers. Additionally, Mr. Halburn oR$rated and continues
I
to operate a website from which he earns income, and Ms. Martin sold rlary Kay products.
Upon review the Family Court's orders and the record below, the Court nnls tnat each parent's
caretaking functions have varied.
If the Court cannot allocate custodial responsibility under the previously cited section
L
"because the history [of the parents' caretaking functions] does not estlblish a pattern of
I
caretaking sufficiently dispositive of the issues of the case, the court shal]l allocate custodial
responsibility based on the child's best interestr. . . ;' Id. at $ 48-9-206(t). In fact, the most
i

8. i
i
I
i
l
as a matter of law that it would be manifestly harmful to for]tris father to
have any parenting time beyond [Saturday and Sunday visitatioril' Mr.
Halburn's personality disorder has in the past, and much more likely fhan not will
in the future, put at an increased risk of harm caused by third parties
reacting to Mr. Halburn's . . . behavior.
Final Divorce Order, p. 30, Jan.23,2013.
I
The issue before the Court is whether, under West Virginia law, the
{amilV
Court abused
its discretion by limiting Mr. Halburn's visitation with his child becausJ of his personality
disorder. When determining child custody issues, the Family Court encourales parties to create
l
an agreed parenting plan. Frequently, such a goal is not accomplished by tw{ adults ending their
marriage and separating their once joined lives. When the parents cannol agree on custodial
I
responsibility, the Family Court is to I
allocate custodial responsibility so that the proportion of custodial tiine the child
spends with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents' separation . . .
except to the extent required under section 9-209 or necessary to . .1, permit the
child to have a relationship with each parent who has performed
{ reasonable
share of parenting functions.
W. Va. Code $ a8-9-206(aX1). I
I
Before Ms. Martin filed for divorce, both parents in this case worked for varying periods
of time as full time and/or substitute teachers. Additionally, Mr. Halburn oR$rated and continues
I
to operate a website from which he earns income, and Ms. Martin sold Mary Kay products.
Upon review the Family Court's orders and the record below, the Court finls that each parent's
caretaking functions have varied.
If the Court cannot allocate custodial responsibility under the previously cited section
L
"because the history [of the parents' caretaking functions] does not estlblish a pattern of
I
caretaking sufficiently dispositive of the issues of the case, the court shal]l allocate custodial
responsibility based on the child's best interestr. . . ;' Id. at $ 48-9-206(t). In fact, the most

9. important consideration in this case or any child custody matter is the best ifrterest of the child.
l
W. Va. Code g 48-9-102(a); Syl. pt. 2,Carterv. Carter, 196 W. Ya.239,47q S.E.2d 193 (1996),
Achieving faimess between the parents always falls behind the best intfrests of the child.
W. Va. Code $ 48-9-102(b). Consequently, the issue becomes whether Mr.
flalburn's
visitation
with his son is in the child's best interest.
Mr. Halburn's argument assumes that under the best interests of the fhild umbrella from
which it is covered, the Court must award custody of his child to him unlesslthe Court finds one
of the following factors listed in West Virginia Code $ 48-9-209. That Code section requires the
court to limit custodial responsibility of a parent if the court determines that tfe parent
I
1) has abused, neglected or abandoned a child; I
2) has sexually assaulted or sexually abused a child as those terms afe defined in
articles eight-b and eight-d, chapter sixty-one of this code;-) -----r'-- -
3) has committed domestic violence, as defined in section 27-202:
4) has interfered persistently with the other parent's access to the child, exaept in
the case of actions taken for the purpose of protecting the safety of the child or
the interfering parent or another family member, pending adjudi{ation of the
facts underlying that belief; or
5) has repeatedly made fraudulent reports of domestic violence or chjld abuse'
Id. at 48-9-209(a). In fact, Mr. Halburn argues in ground one of his appeal tflat the Family Court
committed error by failing to consider these factors and list them in the Flnal Divorce Order.
However, this Code section requires consideration of these factors only rfpon the request of
either parent or upon receipt of credible information thereof. Id. There ha$ been no allegation
I
that Mr. Halburn abused the child, neglected the child, abandoned the chil{, sexually assaulted
I
the child, committed domestic violence, interfered with Ms. Martin's access tb the child, or made
a fraudulent report of domestic violence or child abuse-
Consequently, the standard is the best interestof the child. The Fam[ly Court's decision
as to how custody shall be allocated in this case in accordance with the best interest of the child
8

10. is reviewed by this Court under the abuse of discretion standard. To re the Family Court's
allocation of custody in this case, the Court must find that the Family C (l) ignorefd] a
"material factor deserving significant weight," (2) relied upon an improper
serious mistake in weighing the factors. See Genty v. Mangum, 195 W.
171, fn. 6 (W. Va. 1995).
tor, or (3) made a
a. 512,466 S.E.2d
As noted above, the Family Court found it is not in the best in st of the child to
allocate custody of him to Mr. Haibum more than every other Saturday a Sunday, excluding
child to potentialSaturday night. The stated reasoning is that Mr. Halburn will subject t
danger in the future due to his propensity to initiate conflict with others, noted above, this
decision is based on the psychologists' opinions, Ms. Martin's testimony,
actions. I
and Mr. Halburn's
The Court finds the Family Court's decision to limit Mr. Halburn's visitation with his son
to the da1'time hours of every other Saturday and Sunday is an abuse of discfetion because there
',
is little evidence that Mr. Halburn actually poses a threat to the well-beinp of the child. Dr.
Hudson's testimony and report provide the most support for this Court's findife:
I
However, this examiner is aware of no credible allegations that Mr. flallbum has
ever become violent with anyone or that he has ever mistreated his soit. . . . While
the currently opined personality disorder is indeed a risk factorl for violent
behavior, it is just one of many and does by any means correlate Pr]ecisely with
violence risk. Other risk factors for violent acting out, incfuding prior
violence, age, substance abuse, major mental illness, psychopathd, and prior
supervision failure are not apparent in this case. I
I
Report of Dr. Hudson, p. 13, Jan. 30, 2012 (Dkt. No. 135). Importantly, Dr. Hudson testified
before the Family Court on October 15,20l2,that despite Mr. Halburn's pprsorrality issues he
does not see a reason to limit his visitation with the child. Recorded hearin[, Oct. 15, 2012, at
I
3:30. I

11. Dr. Hudson casted doubt on Dr. Thistlewaite's assessment that
significant risk of committing violent behavior in the future:
While it is true that personality disorder characteristics such as
Thistlewaite observed in Mr. Halbum constitute a risk factor for
known history of significant violence. This examiner notes that
reasonable to weight Mr. Halburn's personality issues more heavil
history of significant violence had been substantiated.
would be but one of many such risk factors and in isolation ld not be
construed as significantly elevating violence risk in an individ I without a
Mr. Halburn is at
that Dr.
nce, this
t would be
if a known
Id. atp.2. This opinion correlates with Dr. Hudson's conclusion that posse
a personality disorder, is not sufficient to deem someone unfit to parent.
ing one risk factor,
Dr. Hudson's evaluations clearly indicate that Mr. Halbum ex nces problems
associated with his personality disorder; however, he opined that these ms do not involve
fact, Dr. Hudsonthe child and there appears to be little risk of endangering the child.
commented that "[t]here is some evidence of a positive bond between Mr' H lburn and
that should be construed as constituting a protective factor against future d
rd.
hild maltreatment."
Although Mr. Halbum's personality disorder does not render trim [rnnt to parent, Dr.
Hudson opined it does affect Mr. Halbum's relationships with others. Mr. Hfllburn could benefit
I
by receiving treatment for his personality disorder so that he can better intera[t with other people
involved in the child's life. Dr. Hudson recommended that Mr. Halburn consider
psychotheraphy and/or mood stabilizers.
In summary, the child has never been harmed or abused while in the custody of Mr'
I
Halbum. The Court does recognize a potential risk of subjecting the ctiild to observe Mr.
Halburn's repeated engagement in conflict. However, this Court does not fifrd that the potential
for the child to witness a dispute between his father and another adult, witn
J
iack of violence in
r0 i

12. Mr. Halburn's history, does not warrant limitation of his parenting time
potential, by itself, does not make Mr. Halburn an unfit parent. None of
West Virginia Code $ 4S-9-209(a) are at issue, despite Mr. Halbum's
testimony. As such, the Family Court abused its discretion by reducing Mr.
th
he
his child. Such
factors listed in
that the Putnam
County Courts consider them. It is in the best interest of every child to s time with both
parents to the extent practicable. Without a concrete, existing reason limit one parent's
visitation, that parent should be provided the opportunity to pursue the o nity to raise his or
definitely poses aher child. In this case, the lack of psychological testimony that Mr' Hal
risk to the child alleviates the need to limit Mr. Halburn's visitation. C uently, the Family
Court made a serious mistake in heavily emphasizing Dr. Thistlewaite's r and Ms. Martin's
alburn's visitation
with his son from Wednesday night and every other weekend to only the da ime hours of every
other Saturday and Sunday.
The remaining issue with regards to child custody is what cusfodial allocation is
appropriate in this case. Without a prior history of violence, any evidence t{rat Mr. Halburn has
emotionally or physically abused the child or any evidence that Mr. Halb{m actually poses a
threat to the child, the Court finds that the Family Court should not hav{ deviated from the
parenting plan in the Temporary Order. Reinstating the parenting plan undfr that Order would
I
give Mr. Halbum visitation rights with the child every Wednesday and eVprV other weekend.
However, Mr. Halburn is prohibited from the premises of the child's pre-sct1ool. Effective May
17,2013, Mr. Halburn's visitation under the Temporary Order is reinstated *lltn tn" exception of
i
Wednesday overnight visits. Specifically, Mr. Halburn shall have visitatio{r rights every other
l
weekend beginning on Friday at 6:00 p.m, and ending on Sunday at 8:00 n.fn. fhe parties will
continue to meet at the Hurricane Police Department to transfer the child.
ul

13. Additionally, Mr. Halburn has been prohibited from taking the child of state. Again,
without any history of violence or a determination that Mr' Halburn an actual threat of
danger to the child, this Court finds that to prohibit him from taking the out of state is an
abuse of discretion. Nonetheless, the Court has carefully considered the F ily Court's opinion
of state under theregarding this issue. Mr. Halburn shall be permitted to take the child
following conditions: he will always give Ms. Martin notice at least one (
scheduled trip; the child is prohibited from missing school to attend such tri
must leave and retum from the out-of-state trip on the same day.
) week prior to the
; and Mr. Halburn
2. In his second ground for appeal, Mr. Halburn argues that $ecause Ms. Martin
failed to comply with the Family Court's order that both parties undergo a psfchiatric evaluation,
she should not have been awarded custody of their child. Specifically, he claims that the
"Family Court egregiously abused discretion by ordering that both parties be subjected to mental
health evaluations, yet Petitioner mother refused to get an evaluation, comrfritted bad faith, yel
l
was awarded custody." Petition for Appeal, p. 2, Feb. 20,2013. Mr. Halburlr complied with the
Court's order, and Dr. Hudson completed a psychiatric evaluation of him,
f,s
discussed above.
Ms. Martin did not comply. The Family Court found her in contempt and fin{d her $100.00.
I
In her response to the Petition for Appeal, Ms. Martin argues
fhat
the psychiatric
evaluation was very expensive and she could not afford to pay it. Howevlr, she paid the fine
imposed by the Family Court. i
L
Family courts in the State of West Virginia may find litigants in codtempt and sanction
l
those litigants. West Virginia Code $ 5l-ZA-9 states in relevant part
(a) In addition to the powers of contempt established in chapter forty-]elght of this
code, a family court judge may:
t2

14. (l) Sanction persons through
to preserve and enforce the
remedies granted by the court;
(2) Regulate all proceedings
and
civil contempt proceedings
rights of private parties or t
losses sustained and to coerce obedience for the benefit of the
Sanctions must give the contemnor an opportunity to purge himself
selecting sanctions, the court must use the least possible power
end proposed. A person who lacks the present ability to comply wit
the court may not be confined for a civil contempt. Sanctions may i
not limited to, seizure or impoundment of property to secure compl
prior order. Ancillary relief may provide for an award of attorney's fe
Additionally, an appellate court reviewing a family court's sanction should
of the family court. See Deitz v. Deitz, 222 W 'Ya. 46, 659 S.E.2d 331 (2008
typically have afforded broad discretion to lower courts imposing sanct
enable those tribunals to fashion a punishment that corresponds with the
contemnor.")
The Family Court did not abuse its discretion by hning Ms. M
failure to undergo a psychiatric evaluation per the order of the Family
necessary
administer
in a hearing before the
(3) Punish direct contempts that are committed in the of the court
or that obstruct, disrupt or corrupt the proceedings of the cou
(b) A family court judge may enforce compliance with his or her wful orders
with remedial or coercive sanctions designed to compensate a plainant for
plainant.
herself. In
uate to the
the order of
ude, but are
ance with a
fer to the discretion
("Furthermore, we
ns for contempt to
ntransigence of the
$ 100.00
urt. Ms.
for her
Martin
merelyviolated the order of the Family Court. She stated that this violation was
could not afford to pay for the evaluation. Accordingly, a fine of $ 100.00 tQ sanction her is not
an abuse of discretion. Certainly, failure to comply with the Family Court'd order to undergo a
psychiatric evaluation does not warant an order to deny Ms. Martin cuftodl of her child.
L
Therefore, this ground for appeal is dismissed i
l3

15. I
l
I
3' In his third ground for appeal, Mr. Halburn reiterates his urgf-"nt in ground one
that the Family Court erred by awarding custody of the child to Ms. M4rtin instead of Mr.
l
Halburn. He further explains that the l
Family Court Judge egregiously abused discretion by failin! ro follow
constitutional law and U.S. Supreme Court rulings holding that the s{ate must act
de minimis when involved in custody matters. Family Court Judje made it a
personal vendetta against Respondent father and deprived him and his child of
their fundamentally protected constitutional rights to have a relationlhip without
state interference, in violation of U.S. Supreme Court rulings arfd mandates
limiting the State's interference in parental rights (de minimis) with$ut clear and
convincing evidence of abuse or neglect to the child. The Trial] Judge used
improper standards and hid behind the "best interests of the chil]d" to usurp
Respondent's parental rights. To suggest goverunent's "special]interest" in
protecting children under guise of "best interest", or simply say "chil! has a right
to be free from some vague harm" is legally insufficient criteria to] involve the
State. I
Id. In his fifteen-page memorandum accompanying the Petitton 7o, eppro], Mr. Halburn cites
l
numerous United States Supreme Court opinions discussing varying levels ff ,tut" interference
with parents' rights to raise their children. For example, Mr. Halburn
"itrrlornom
v. J.R.,442
I
U.S. 584, 99 S. Ct. 2493 (1g7g) for the premise that the State's involv]ement in parenting
decisions should be de minimis unless the parent is unfit. The Suprem"l
"oun
in this case
discussed the admittance of mentally or behaviorally handicapped children tf irl.titutions and the
State's involvement therein. I
Of course, this Court respects a parent's constitutional right to raise hls child. ,See syl. pt.
l
1,In re ll/illis,157 W. Ya.225,207 S.E.zd 129 (1973) ("In the law concerning custody of minor
children, no rule is more firmly established than that the right of a naturat pfir"nt to the custody
i
of his or her infant child is paramount to that of any other person; it is a fi.-lndamental personal
liberty protected and guaranteed by the Due Process Clauses of the West firginia and United
States Constitutions.") The West Virginia Supreme Court's discussion of a pf,rent's right to raise
14

16. his child usually occurs in abuse and neglect cases. Fit parents are general free to raise their
children with minimal state interference. Syl. pt, l, State ex rel Kiger v. k,153 W. Va.
404, 168 S.E.2d 798 (1969). ("A parent has the natural right to the c of his or her infant
child and, unless the parent is an unfit person because of misconduct, ect, immorality,
has permanentlyabandonment, or dereliction of duty, or has waived such right, or by
transferred, relinquished or surrendered such custody, the right ofthe parent
or her infant child will be recognized and enforced by the courts.")
the custody of his
However, parents who are married and petition the courts for a di invite
state interference with the upbringing of their children. The State, as s patriae, must
oversee the dissolution of marriage, being a legal institution, and what is
parties' children, if any. In In State ex rel. Paul B. v. Hill,20l W. Ya' 248,
allocation cases. W. Va. Code $ a8-9-102(a).
Therefore, the State, and this Court, has a substantial
allocation of the parties' child. Because the parties ask the
be done with the
57, 496 S.E.2d 198,
2A7 0997), the Supreme Court discussed this duty:
I
While parents enjoy an inherent right to the care and custody Qf their own
children, the State in its recognized role of parens patriae is the ultimpte protector
of the rights of minors. The State has a substantial interest in provi{ing for their
health, safety, and welfare, and may properly step in to do so when n$cessary. . . .
This parens patriae interest in promoting the welfare of the fhild favors
preservation, not severance, of natural family bonds. . . ,
Id. (citing In the Interest of Betty J.W.,I7g W. Va. 605,608, 371 5.8.2d32q,329 (1988)). The
I
State's interest in children as parens patriae is tempered with the best idterest of the child.
.
"'This Court cannot . . . ignore its parens patriae dufy to protect the best interests of the child."
Id. (citations omitted). The best interest of the child is the primary ob.iective in custodial
interest in overseeing
courts of this State to
I
I
the custodial
oversee their
l5

17. divorce, the State has every right to ensure that Mr. Halburn's child
in the midst of his divorce.
To the extent that Mr. Halburn raises the same arguments
ground one discussed above, the Court dismisses this ground.
cited $ 48-1-305(c):
(c) When it appears to the court that a party has
unnecessarily because the opposing parly has
defenses for vexatious, wanton or oppressive
diverting attention from valid claims or defenses
tely
l
is beins aheoua
in this srJound
cared for
for appeal as
4. In his fourth ground for appeal, Mr. Halburn makes what the Court interprets as
three arguments. To the extent that Mr. Halburn makes other arguments, inclfrding Ms. Martin's
failure to undergo a psychiatric evaluation, that have been already discussed, the Court does not
address those arguments.
First, Mr. Halburn claims the Family Court improperly ordered him to pay parl of Ms.
Martin's attomey fees: "[t]rial judge egregiously abused discretion by . . . afard[ing] Petitioner
for her'bad faith' by granting her attorney's fees and costs in the amount of $[,935 .85'" Petition
I
for Appeat, p.2, Feb. 20, 2013. In response, Ms. Martin argues that order]ing Mr. Halbum to
pay some of her attorney fees was warranted because the fees were a result ff countless emails,
motions, hearing continuations, from Mr' Halbum,
Ms. Martin originally requested that the Family Court award ner attlrney fees and costs
in the amount of $10,435.85. In making the determination whether to gr]ant this award, the
Family Court discusses in the Final Divorce Order West Virginia Code $ 48-1-305(a), which
states that "costs may be awarded to either party as justice requires . . . ." Alslo, the Family Court
incurred attorney feps and costs
assefted unfounde{ claims or
purposes, thereby delaying or
asserted in good faifh, the court
l6

18. may order the offending party, or his or^her attorney, or both, to puf reasonable
attorney fees and costs tb ihe other party.3
The Family Court specifically stated that the attomey fees and costs in this flitigation were "due
to much of the fees incurred by Ms. Halburn being a result of Mr. Halburn'[ vexatious, wanton
I
and oppressive conduct during the course of this litigation" under the above-pited Code sections.
Final Divorce Order, p. 36, Jan. 23, 2013. The Family Court further analyfed not only the six
factors courts analyze in determining whether to grant a request for attorney
fe.t
u"d costs under
Banker v. Banker, 196 W. Va. 535, 474 S.E.zd 465 (1996), but also e>iamined the twelve
reasonableness factors. Id. atpp.3740. l
This Court finds that the Family Court's analysis of this issue is
fthoroueh
and well-
reasoned. Accordingly, the Family Court's order that Mr. Halburn pay p[rt of Ms. Martin's
attomey fees is not an abuse of discretion.
The second part of Mr, Halbum's argument in the fourth ground fior appeal involves
I
equitable distribution. Mr. Halburn claims the Family Court erred by "gfanting Respondent
$23,000.00 for marital home settlement, instead of total $65,000.00 for Petitlioner's'bad faith""
I
Petitionfor Appeal, p. 2, Feb. 20,2013. In response, Ms. Martin stated tha! the home belonged
to her and her mother. Although Mr. Halburn's name is not on the deed, sfie admitted that the
'This Court also notes West Virginia Code $ 48-5-504 that also authorizes the Family Court to award attorney fees
and costs in divorce cases. In relevant part, that statute states
(a) The court may compel either parfy to pay attomey's fees and court costs reasona[ly necessary
to enable the other parfy to prosecute or defend the action. The question ofwhether br not a party
is entitled to tempoiary spousal support is not decisive ofthat parry's right to a reasdnable
allowance ofattorney's fees and coufi costs.
(c) Ifit appears to the court that a parry has incurred attomey fees and costs unnecefsarily because
the opposing parfy has asserted unfounded claims or defenses for vexatious, wanto$ or oppressive
purpoi.., th-eieby delaying or diverting attention from valid claims or defenses a{serted in good
iaittr, ttre court may order the offending parry, or his or her attorney, or both, to
faY
reasonable
attomey fees and costs to the other party.
t1

19. parties paid the mortgage from their joint banking account. She also stated
home has declined since Wal-Mart constructed a new store nearby'
the value of the
The Family Court noted that neither party appraised the property for this litigation. The
Family Court assigned a value of $16,000.00, which represents the reduct[on in the principal
amount of the mortgage over the course of the marriage. Because Mr, Halbrfrn's name is not on
the deed, the Court finds no abuse of discretion in the value assigned to the trouse by the Family
Court. Therefore, this ground is also dismissed.
Mr. Halburn also requested reimbursement for improvements he madp to the home in the
l
amount of $12,750.00. The Family Court declined to award him reimburseJnent for these costs
because they were not improvements that increased the value of the real pro$erty. For example,
l
the Family Court noted that some of the items on the list were phot{s of the child, an
entertainment center, and a swing set. Final Divorce Order, p. 33, Jan.23, p013' Unon review
i
of the recorded hearings below, Mr. Halburn testified that he intended to rfmove the swing set
from the property. Accordingly, there has been no abuse of discretion afrd this argument is
i
dismissed. i
Lastly, Mr. Halburn argues that "Judge fKelly] failed to consider fetitioner's business
assets. Judge abused discretion & failed to consider Respondent's reductionlin business income
I
re:support." Petitionfor Appeal, p. 2, Feb. 2A,2073. Mr. Halburn refers td Ms. Martin's prior
Mary Kay business, in which she testified before the Family Court that such $usiness has ceased'
The Court interprets the argument in the second sentence as a petition for jnodification of Mr.
Halburn's obligation to pay child support due to the loss of this job. The n'an]ity Court noted that
Mr. Halburn admitted to a gross monthly income of $3,250.00. Accordingly, the Family ordered
"[p]ursuant to the attached income shares child support formula, the Respondent shall pay child
l8

20. support in the amount of $613.37 per month . . . ." Final Divorce Order, p. 3, Jan. 23,2013.
i
This Court searched the record below and did not find a petition for modifi{ation fiied with the
Family Court. The Court finds that this is not a valid argument on appe{I, and Mr. Halburn
should petition the Family Court to modify his obligation due to the change irf circumstances.
Therefore, all arguments made in the fourth ground for appeal are disrJnissed.
I
5. To address all the issues raised by Mr. Halburn, the COurt considers Mr.
i
Halburn's allegation that Judge Kelly displayed a bias against Mr. Halburn aird acted unethically
r
in resolving this matter. Upon review of the recorded hearings below, the Cfurt finds no bias of
l
Judge Kelly against Mr. Halburn that affected the decision made below. Tfi'ris Court is not the
propff forum to consider any further alleged unethical acts of Judge feliV. If Mr. Halbum
wishes to pursue such claims, Mr. Halburn should correspond with the Wdst Virginia Judicial
Investigation Commisston.
ORDER
Pursuant to West Virginia Code $ 5l-2A-14, this Court RBVERSES the Family Court's
Final Divorce Orderpertaining to child custody issues in accordance with this Order. The Court
otherwise DENIES Mr. Halburn's remaining grounds for appeal'
The Circuit Clerk is directed to send certified copies of this Order to the parties of record,
including
Mark Halbum
226 % 2lst Street
Unit B
Dunbar, West Virginia 25064
Dolores Martin
194 Grace Drive
Hurricane, West Virginia 25 526
19

21. support in the amount of $613.37 per month . .. ." Final Divorce Order, p.3, Jan.23,2013.
i
This Court searched the record below and did not find a petition for modifi{ation fiied with the
Family Court. The Court finds that this is not a valid argument on appe{I, and Mr. Halburn
should petition the Family Court to modify his obligation due to the change irf circumstances.
Therefore, all arguments made in the fourth ground for appeal are disrJnissed.
L
5. To address all the issues raised by Mr. Halbum, the CDurt considers Mr.
i
Halburn's allegation that Judge Kelly displayed a bias against Mr. Halburn aird acted unethically
l
in resolving this matter. Upon review of the recorded hearings below, the Cfurt finds no bias of
l
Judge Kelly against Mr. Halburn that affected the decision made below. Tfi'ris Courl is not the
propq forum to consider any further alleged unethical acts of Judge feliV. If Mr. Halbum
wishes to pursue such claims, Mr. Halburn should correspond with the Wdst Virginia Judicial
Investigation Commisston.
ORDER
Pursuant to West Virginia Code $ 51-2A-74, this Court REVERSES the Family Court's
Final Divorce Orderpertaining to child custody issues in accordance with this Order. The Court
!
otherwise DENIES Mr. Halburn's remaining grounds for appeal'
The Circuit Clerk is directed to send certified copies of this Order to the parties of record,
including
Mark Halburn
226 % 2lst Street
Unit B
Dunbar, West Virginia 25064
Dolores Martin
19

22. Honorable Michael Kelly
P.O. Box 246
1l I Court Street, Suite 1000
Charleston, wV 25301
-JORDER-ED this 3
Phillip M. S
BH-igbEFBIil[iflu'$
'
o*l* * iu'i.*c, g errt ol the Olrcult 0sutl,oi sdd
i;l,iil';;i ;;;t Stiie, o's trireuv certttv ttat ttle
i,t;'J,1 I i' .IJ ;ili':,!r tjiill*..:g:J:#
"'n
il"ffiifiru:20!3, Clerk
Putnam County, W'Va'
2A