IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_____________________

No. 20-0442

_____________________

STATE OF WEST VIRGINIA ex rel. J. WILLIAM ST CLAIR,

Petitioner

v.

THE HONORABLE GREGORY L. HOWARD, JUDGE OF THE 6th

JUDICIAL CIRCUIT, 

THE HONORABLE JARA HOWARD, FAMILY COURT JUDGE OF THE 6th

FAMILY COURT CIRCUIT, and

MOLLY M. P. ST CLAIR,

Respondents

_______________________________________________________

Petition for Writ of Prohibition 

The Honorable Gregory L. Howard, Judge

Case No. 18D-532

WRIT DENIED

_________________________________________________________

Submitted: March 2, 2021

Filed: March 26, 2021

Scott D. Maddox, Esq. R. Lyne Ranson, Esq. 

Maddox Law Office, PLLC Lyne Ranson Law Offices, PLLC

Huntington, WV Charleston, West Virginia 

Counsel for Petitioner

Mike Kelly, Esq.

Mark W. Kelley, Esq.

Ray, Winton & Kelley, PLLC

Charleston, West Virginia

Counsel for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.

FILED

March 26, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “Prohibition lies only to restrain inferior courts from proceeding in causes 

over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding 

their legitimate powers and may not be used as a substitute for writ of error, appeal or 

certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).

2. “In determining whether to entertain and issue the writ of prohibition for 

cases not involving an absence of jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether 

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the 

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not 

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter 

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent 

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s 

order raises new and important problems or issues of law of first impression. These factors 

are general guidelines that serve as a useful starting point for determining whether a 

discretionary writ of prohibition should issue. Although all five factors need not be 

satisfied, it is clear that the third factor, the existence of clear error as a matter of law, 

should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 

12, 483 S.E.2d 12 (1996). 
ii

3. “Where the issue on appeal from the circuit court is clearly a question of 

law or involving an interpretation of a statute, we apply a de novo standard of review.” 

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). 

4. “A movant seeking relief under Rule 60(b)(4) of the West Virginia Rules 

of Civil Procedure must show that the judgment sought to be vacated is void and that the 

motion to vacate the judgment was filed within a reasonable period of time.” Syl. Pt. 5, 

Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009).

5. “This Court may, on appeal, affirm the judgment of the lower court when it 

appears that such judgment is correct on any legal ground disclosed by the record, 

regardless of the ground, reason or theory assigned by the lower court as the basis for its 

judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

6. “‘“W. Va. Code, 48-2-33 [1984], requires a full disclosure of one spouse’s 

financial assets to the other spouse at the time of divorce, and contemplates a meaningful 

hearing on the subject of equitable distribution of property at which the spouse submitting 

financial data may be cross-examined concerning the nature, origin and amount of assets.” 

Syllabus point 1, Hamstead v. Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987), overruled 

on other grounds, Roig v. Roig, 178 W. Va. 781, 364 S.E.2d 794 (1987).’ Syl. Pt. 2, 
iii

Metzner v. Metzner, 191 W. Va. 378, 446 S.E.2d 165 (1994).” Syl. Pt. 1, Preece v. Preece, 

195 W. Va. 460, 465 S.E.2d 917 (1995). 

7. “‘“Whenever it is determined that a court has no jurisdiction to entertain the 

subject matter of a civil action, the forum court must take no further action in the case other 

than to dismiss it from the docket.” Syllabus Point 1, Hinkle v. Bauer Lumber & Home 

Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975).’ Syl. Pt. 1, Hanson v. Bd. of Educ. 

of the Cnty. of Mineral, 198 W.Va. 6, 479 S.E.2d 305 (1996).” Syl. Pt. 5, State ex rel. Dale 

v. Stucky, 232 W. Va. 299, 752 S.E.2d 330 (2013).

8. “‘A statutory provision which is clear and unambiguous and plainly expresses 

the legislative intent will not be interpreted by the courts but will be given full force and 

effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 6, State 

ex rel. Biafore v. Tomblin, 236 W. Va. 528, 782 S.E.2d 223 (2016).

9. A circuit court, having once accepted jurisdiction of an action for divorce 

pursuant to West Virginia Code § 51-2A-2(b) (Supp. 2020), is not divested of jurisdiction 

where one or both parties subsequently seek to contest the divorce and/or the property 

settlement agreement.
iv

10. “Circuit courts are courts of general jurisdiction and have power to 

determine all controversies that can possibly be made the subject of civil actions.” Syl. Pt. 

3, State ex rel. Silver v. Wilkes, 213 W. Va. 692, 584 S.E.2d 548 (2003). 

11. “Pursuant to Article VIII, Sections 6 and 16 of the West Virginia 

Constitution, W.Va. Code § 51–2–2 (1978), and the Family Court statutes, W.Va. Code §§ 

51–2A–1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to 

circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and 

the original jurisdiction of the circuit courts in this State.” Syl. Pt. 4, State ex rel. Silver v. 

Wilkes, 213 W. Va. 692, 584 S.E.2d 548 (2003). 

12. Where a circuit court has accepted jurisdiction of a divorce case pursuant 

to West Virginia Code § 51-2A-2(b) (Supp. 2020) and one or both parties subsequently 

seek to contest the divorce and/or the property settlement agreement, the court may vacate 

any prior orders and dismiss the action from its docket; proceed to take testimony and/or 

evidence necessary to resolve the contested issues; or transfer the case to the family court 

for resolution of the contested issues. Which of these remedies is elected by the court is a 

matter within its sound discretion, based on the facts and circumstances of the particular 

case, and the court’s decision will not be disturbed on appeal other than on a finding of 

abuse of discretion. 
1

WOOTON, Justice:

 The parties to the underlying divorce proceeding, J. William St Clair 

(“Husband”) and Molly M. P. St Clair (“Wife”)1 were married on January 5, 2012, 

separated on August 6, 2018, and filed for divorce on September 7, 2018. Together with 

Husband’s petition for divorce and Wife’s answer, the parties submitted a signed property 

settlement agreement and financial statements that were less than skeletal, both containing 

a written notation that the parties waived the requirement of full financial disclosures. All 

of these documents were drafted and filed by Husband, an attorney. Because there were no 

parenting issues2 and there was a written property settlement agreement signed by both 

parties, Husband filed the case in the Circuit Court of Cabell County pursuant to West 

Virginia Code § 51-2A-2(b) (Supp. 2020), which gives concurrent jurisdiction to circuit 

courts and family courts under these circumstances. On October 1, 2018, without holding 

a hearing and without giving notice to Wife, the court entered a final divorce order, which 

had also been drafted and tendered to the court by Husband. 

 Exactly one year later, on October 1, 2019, Wife filed a Motion to Vacate and 

Set Aside Final Divorce Order pursuant to Rule 60(b) of the West Virginia Rules of Civil 

1 In the order of divorce entered on October 1, 2018, Wife was “restored to her 

maiden name of Prudenti.” However, all pleadings in this case continue to identify her as 

Molly M. P. St Clair. 

2 The parties have no children together.
2

Procedure. The circuit court held a hearing on the motion on April 20, 2020,3 and thereafter 

entered an order on June 12, 2020, granting the motion to vacate in part and transferring 

the case to family court for resolution of all issues of support and equitable distribution. 

On June 30, 2020, Husband filed the instant Petition for Writ of Prohibition, challenging 

both the court’s ruling on the motion to vacate and its authority to transfer the case to family 

court. On September 3, 2020, following review of the parties’ briefs and appendix 

records,

4 this Court issued a rule to show cause. We now deny Husband’s Petition for Writ 

of Prohibition for the reasons set forth in this opinion. 

I. Facts and Procedural Background

 The parties were married on January 5, 2012, in Ohio, and shortly thereafter 

moved to Huntington, West Virginia. During the marriage, Husband earned a living first 

as a Methodist minister and then as an attorney working for Legal Aid. Significantly, for 

purposes of this petition for extraordinary relief, Husband also had an interest in several 

real estate companies, BLT Realty, Wahoowa, and SUVAC, that he claims were derived 

from or exchanged for his shares in Huntington Realty Corporation, a family-owned

business. These interests allegedly generated more than five million dollars in income to 

Husband during the couple’s six-year marriage, although he claims that this income was 

3 Pursuant to this Court’s Judicial Emergency Declared, Amended Order, entered 

April 13, 2020, as a result of the Covid-19 pandemic, the hearing was held remotely. 

4 The parties filed separate appendix records.
3

not marital property. See text infra. Wife was a homemaker, having given up her career 

as a university counselor when she married Husband and moved from Ohio to West 

Virginia with him.5 Wife claims that she knew almost nothing about the couple’s finances 

and that Husband “kept me ‘out of the loop’ substantially on any decisions regarding 

management of our finances.” 

 At the time Husband and Wife separated, they began discussions as to 

division of the marital assets. In their respective pleadings the parties give starkly different 

accounts of this process, with Husband characterizing the interactions as a “negotiation” 

while Wife characterizes it as a time during which Husband bullied and exerted ceaseless 

pressure on her, telling her that “if I didn’t go along with his proposed separation agreement 

I needed to remember . . . what [Husband] did to [a previous wife]. She didn’t get 

anything.” Wife claims that during this entire period and up until the moment she 

discovered that the divorce had already been granted, she sent numerous and lengthy emails 

to Husband pleading for time to “salvage[] our marriage.” In this regard, the appendix 

record submitted by Wife, see supra note 4, contains copies of numerous emails exchanged 

between the parties from August 14, 2018, to October 1, 2018. Suffice it to say that these 

documents provide ample support for the circuit court’s ultimate conclusion, long after the 

fact, that “[Wife] did not want to divorce.” 

5 Wife stated in an affidavit that Husband “encouraged me not to work, saying that 

he wanted me, as he put it, ‘to go and do and be.’” 
4

 What is not disputed, however, is that despite her desire to reconcile, Wife 

signed all of the documents prepared by Husband, including the property settlement 

agreement. As part of the settlement, Husband agreed to pay Wife the sum of $205,000.00, 

which he represented to be far in excess of that to which she was statutorily entitled;6

further, it was agreed that Wife would retain a 2014 Ford F-150 truck, a joint Wesbanco 

checking account, and certain household goods, specifically, “the baby grand piano, the 

butcher block and other items which she acquired prior to marriage.” Husband retained 

the marital residence, a 2016 Mini Cooper, a 1983 Citroen 2CV, a 1967 Ford Ranchero, 

his 401 accounts with the United Methodist Church and TIAA CREF, his whole life 

insurance policy, and certain household goods including “the three Alvar prints.” The 

parties also agreed that each would retain “as their sole and separate property,” the 

following:

[Husband] shall retain as his sole and separate property his 

shares of stock in BLT Realty, Inc., Wahoowa, Inc., SUVAC, 

Inc., his membership interest in BLT Clearwater, LLC, his IRA 

and other account with Vanguard, the children’s trust with 

Raymond James, the 2018 Buick Regal, and his bank accounts 

with Wells Fargo and Wesbanco[.]

[Wife] shall retain as her sole and separate property her 

accounts with USAA and a vehicle which [Husband] intends 

to buy at auction, such as a Subaru Outback (which [Husband] 

will pay for with his separate property).

6 It appears to be undisputed that Husband valued the marital estate at approximately 

$176,104.00; what is hotly disputed is whether that was true. 
5

Significantly, none of these assets – marital or separate – were enumerated, valued, or even 

mentioned in the parties’ financial disclosures, which contained nothing but their names, 

addresses, birth dates, ages, and phone numbers, followed by the handwritten notation that 

“[b]oth parties waive formal disclosure of assets and liabilities per separation agreement.”7

 

Husband does not dispute that he inserted the handwritten notation on Wife’s disclosure as 

well as his own.

 Husband filed the divorce papers – Petition, Husband’s financial disclosure, 

Answer, and Wife’s financial disclosure – on September 7, 2018. Of note, the Answer 

contained language “accept[ing] service of the Petition, [and] waiving formal service of 

process of the pleading[,]” and thus Wife did not receive formal notice of the institution of 

the divorce proceeding. Thereafter, on October 1, 2018, the circuit court entered its final 

order, which was prepared by Husband but signed by both Husband and Wife below the 

following text: “By signing below, both parties acknowledge they have read and 

7 In his supplemental disclosures filed during the course of the Rule 60(b) 

proceedings, see text infra, the only information Husband provided about the four business 

entities was the assertion that they “are not marketable, with all shares and units being 

subject to shareholder/membership agreements[,]” and that “[t]he forced redemption value 

of [Husband’s] interest in all four businesses is $170,000.00.” The Vanguard IRA and/or 

account was valued at $1,298,460.00, the children’s trust at $187,050.00, the Buick Regal 

at $30,000.00, the Wells Fargo account at $20,000.00, and the Wesbanco account at 

$24,900.00. Husband also provided two pages of his 2018 income tax return that showed 

a significant gross income; however, approximately 90% of that income was from an 

unknown source (presumably explained on one or more of the missing pages). 
6

understand the terms, import and effect of the foregoing Order. They agree that the Order 

accurately reflects their agreements. They ask the Court to enter the Order.” 

 Exactly one year later, on October 1, 2019, Wife filed her Motion to Vacate 

and Set Aside Final Divorce Order, alleging the following facts, among others:8 that at the 

time of the parties’ separation, she was emotionally and mentally unstable; that Husband, 

an attorney, prepared her Answer and Financial Statement, and her sole input into the 

process was to sign the documents; that Husband also prepared and submitted the final 

divorce order, again without input from Wife or any explanation as to the document’s 

import; that although Wife signed the settlement agreement and had some participation in 

modifying its terms, she did not know the extent and value of the parties’ marital property, 

having not had access to joint tax returns from 2012-2016 and having been refused access 

to the 2017 return; that Wife had only recently, through newly retained counsel, obtained 

limited information concerning the potential value of the marital estate; that contrary to 

Husband’s assertions, some of Husband’s business assets were acquired during the 

marriage; that when Wife attempted to question the fairness of the agreement or the value 

of the marital estate, Husband stated, “Do you remember what I did to [a former wife] 

when she fought me? She didn’t get anything[,]” after which Husband said that if Wife 

8 In light of the circuit court’s conclusions of law that Wife failed to establish fraud, 

coercion, duress, or lack of capacity, which conclusions have not been made the subject of 

a cross-appeal, we will not belabor the facts alleged in support of those particular 

allegations. 
7

didn’t sign the separation agreement by August 30, 2018, he would withdraw the offer; that 

throughout the period of time between the parties’ separation and the entry of the divorce 

order, Wife sent Husband a number of emails indicating that she did not want a divorce; 

that Husband’s responses were couched in such a way as to make Wife believe that a 

reconciliation was indeed possible; that during this entire period in which emails were 

being exchanged, Wife was unaware that Husband had actually gone ahead and filed the 

divorce papers in circuit court; that Wife was unaware for several weeks the court had 

entered a final divorce order on October 1, 2018, without a hearing and without any notice 

to her; and that during a phone conversation on October 13, 2018, Wife asked Husband 

whether he had filed the divorce papers, to which he responded, “what are you talking 

about, Molly? We’re divorced.” 

On April 20, 2020, following receipt and review of the parties’ respective 

pleadings, affidavits, and other information including pages of emails from the relevant 

time period, the circuit court held a hearing on the Rule 60(b) motion. Thereafter, on June 

12, 2020, the court issued its order granting the motion in part and transferring the case to 

family court. The court held that Wife failed to prove she lacked capacity to enter into the 

settlement agreement or to waive her rights to certain property; that she failed to prove she 

executed the settlement agreement under duress; and that she failed to prove she was 

prevented from obtaining financial information after the divorce had been entered. The 

court did not address the other issues raised by Wife as grounds for vacating that part of its 
8

order relating to the division of the parties’ property: that the settlement agreement was 

procured by fraud, misrepresentation, or other misconduct on the part of Husband; that 

neither fully disclosed their assets and liabilities as required by West Virginia Code § 48-

7-201;9 and that the final divorce order was entered without a hearing. Nonetheless, the 

court found that Wife was entitled to the relief she sought on the ground that:

When [Husband] filed the Petition, Separation 

Agreement, and Answer, and while these documents were 

pending for consideration before the Court, [Husband] believed 

that, because [Wife] had executed the divorce documents, and 

despite her desire to reconcile, [Wife] still ultimately agreed to 

divorce as long as it was pursuant to the terms in the Separation 

Agreement.

[Husband] either mistook or misunderstood [Wife’s] 

intent.

[Wife’s] expressed desire not to proceed with the divorce 

implicitly included disavowal of the terms set forth in the 

Separation Agreement. Because [Wife] did not want to divorce, 

she necessarily did not want to be bound by the Separation 

Agreement that dictated this division of the parties’ property 

upon divorce.

. . . .

[Wife] effectively withdrew her consent to the 

Separation Agreement prior to entry of the Order.

Had the Court been aware [Wife] did not agree to the 

divorce and that she had effectively withdrawn her consent to 

the Separation Agreement when the proposed divorce order was 

presented, the Court would not have entered the Order.

[Wife] is prejudiced by being bound to terms to which 

she did not agree at the time the Order was entered.

9 See text infra. 
9

When it appears from the evidence presented that an 

order entered as a result of a misunderstanding or mistaken 

belief operates to unfairly prejudice a party, justifiable cause 

exists to set the order aside under Rule 60(b)(6). Cf. Kelly, 155 

W. Va. at 773, 187 S.E.2d at 626.10

In this case, for justice to be accomplished, the portion of 

the Court’s Order approving and adopting the Separation 

Agreement must be vacated.11

(Footnotes added.)

 Having concluded that the settlement agreement was a “nullity,” and that 

determination of a fair division of property required the parties to make full disclosures of 

their respective assets and liabilities pursuant to West Virginia Code §§ 48-7-202, 203 

(2015),12 the circuit court found that “[g]iven these unique facts and circumstances, the 

case should be heard and considered by the Family Court . . . which is best equipped to 

determine the equitable distribution of property and spousal support.” Accordingly, the 

court transferred the case to family court. 

10 Kelly v. Belcher, 155 W. Va. 757, 187 S.E.2d 617 (1972).

11 In its order, the circuit court specifically ruled against Husband’s claims that the 

doctrine of judicial estoppel precluded Wife from making arguments contrary to the 

assertions contained in the pleadings. Husband has not filed an assignment of error 

contesting this ruling, and we therefore do not address it. 

12 See text infra. 
10

 On June 17, 2020, five days after entry of the circuit court’s order, respondent 

Family Court Judge Jara L. Howard wrote to the parties’ counsel, directing them to 

participate in a final settlement conference prior to which they would verify that they had 

“negotiated in good faith toward final settlement of the issues in dispute in the above 

entitled action.” On June 30, 2020, Husband filed his petition for a writ of prohibition,

II. Standard of Review

 This case is before us on a petition for extraordinary relief. We have long held 

that “[p]rohibition lies only to restrain inferior courts from proceeding in causes over which 

they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their 

legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.” 

Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953). Where, as here, we 

are faced with a challenge to the circuit court’s alleged abuse of its legitimate powers in 

vacating part of a judgment pursuant to Rule 60(b)(6) of the West Virginia Rules of Civil 

Procedure, we have further explained that, 

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 

its legitimate powers, this Court will examine five factors: (1) 

whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 
11

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as 

a useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight. 

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 

 With respect to Husband’s intertwined claims that the circuit court had no 

authority to transfer this case to family court for further proceedings and that the family 

court had no authority to accept it, we have held that “[w]here the issue on appeal from the 

circuit court is clearly a question of law or involving an interpretation of a statute, we apply 

a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138,

459 S.E.2d 415 (1995).

III. Discussion

 Initially, we must determine whether Husband is entitled to extraordinary 

relief in this case, which presents a unique procedural posture. It is beyond serious dispute 

that the threshold issue presented here, whether the circuit court’s grant of relief pursuant 

to Rule 60(b)(6) should be reversed, is seldom if ever a matter this Court will review on a 

writ of prohibition. See, e.g., State ex rel. First State Bank v. Hustead, 237 W. Va. 219, 

224, 786 S.E.3d 479, 484 (2015) (“we are not surprised that the Bank does not cite a single 

case wherein we granted extraordinary relief to prevent a circuit court from enforcing its 
12

order on a Rule 60(b)(6) motion.”). This is because “[a] motion to vacate a judgment made 

pursuant to Rule 60(b), W. Va. R.C.P., is addressed to the sound discretion of the court[,]” 

Syl. Pt. 5, in part, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974), and “‘[a] writ

of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will 

only issue where a trial court has no jurisdiction or having such jurisdiction exceeds its 

legitimate powers. W. Va. Code 53-1-1.’ Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 

160 W. Va. 314, 233 S.E.2d 425 (1977).” Syl. Pt. 1, State ex rel. Ferrell v. McGraw, 243 

W. Va. 76, 842 S.E.2d 445 (2020). In an attempt to circumvent this well-established 

principle, Husband argues that the court’s grant of Rule 60(b)(6) relief in this case was so 

far beyond the limits of the court’s discretion that it falls within factors three and five of 

the Hoover test: “whether the lower tribunal’s order is clearly erroneous as a matter of 

law,” and “whether the lower tribunal’s order raises new and important problems or issues 

of law of first impression.” Hoover, 199 W. Va. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4. 

 It is clear, however, that the secondary issues presented in Husband’s petition, 

whether the circuit court had either statutory or inherent authority to transfer the case to 

family court and whether the family court had jurisdiction to accept the transfer, fall 

squarely within the rubric of Hoover because “it is claimed that the lower tribunal exceeded 

its legitimate powers[.]” 199 W. Va. at 13-14, 483 S.E.2d at 13-14, Syl. Pt. 4
13

 Notwithstanding that Husband’s multi-pronged attack on the circuit court’s 

grant of Rule 60(b)(6) relief can fairly be characterized as an attempt to fit a square peg 

into a round hole – the round hole of entitlement to extraordinary relief – we find that the 

issue of the court’s authority to transfer the case is ultimately immaterial if it is determined 

that its basis for doing so in the first instance was a clearly erroneous ruling on Wife’s 

motion to vacate the divorce order. Accordingly, we will address the Rule 60(b) issue at 

the outset. 

Circuit Court’s Grant of Rule 60(b) Motion

 As we consider the circuit court’s grant of Rule 60(b) relief and the Husband’s 

challenges thereto, it will be recalled that Rule 60(b) “is to be liberally construed for the 

purpose of accomplishing justice and that it was designed to facilitate the desirable legal 

objective that cases are to be decided on the merits.” Syl. Pt. 2, in part, Fernandez v. 

Fernandez, 218 W. Va. 340, 624 S.E.2d 777 (2005); see also Jordache Enterprises, Inc. v. 

Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W. Va. 465, 472, 513 S.E.2d 692, 699 

(1998) (citing Syl. Pt. 6, in part, Toler, 157 W. Va. at 778, 204 S.E.2d at 86); Cruciotti v. 

McNeel, 183 W. Va. 424, 430, 396 S.E.2d 191,197 (1990) (citing Kelly, 155 W. Va. at 773, 

187 S.E.2d at 626). 

 Husband’s first challenge to the circuit court’s ruling is his claim that the court 

erred in granting a Rule 60(b) motion without addressing whether it had been filed within 
14

a reasonable amount of time. In this regard, it is well-established in our precedents that

“[a] movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of Civil 

Procedure must show that the judgment sought to be vacated is void and that the motion to 

vacate the judgment was filed within a reasonable period of time.” Syl. Pt. 5, Leslie Equip.

Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009); see also Tudor's 

Biscuit World of Am. v. Critchley, 229 W. Va. 396, 398, 729 S.E.2d 231, 233 (2012). Our 

precedents counsel that this timeliness analysis should be undertaken before any 

substantive analysis: 

[w]hen a court undertakes to analyze a Rule 60(b) motion 

based on grounds (1), (2), (3), or (6) of the Rule, it must 

determine first if the motion has been filed within [one year]13

after the judgment was entered and then determine, under all 

the circumstances, if it was filed within a reasonable time. 

Syl. Pt. 3, in part, Delapp v. Delapp, 213 W. Va. 757, 584 S.E.3d 899 (2003) (citing Syl. 

Pt. 2, Savas v. Savas, 181 W.Va. 316, 382 S.E.2d 510 (1989)) (footnote added); see also 

White v. Berryman, 187 W. Va. 323, 331-33, 418 S.E.2d 917, 925-27 (1992) (eight-month 

delay in filing motion to vacate default judgment was not reasonable where attorney was 

aware of the judgment almost immediately after its entry); Corathers v. Facemire, 185 W. 

Va. 78, 80, 404 S.E.2d 769, 771 (1991) (twenty-eight year delay in filing motion was not 

reasonable under any circumstances). 

13 In Delapp, the Court quoted the Savas syllabus point but amended it to reflect that 

since the time Savas was decided, the time limit for a Rule 60(b) motion had been changed 

from eight months to one year. 
15

 However, this Court has never held that the absence of an explicit timeliness 

analysis by the circuit court mandates reversal, particularly where, as here, the factual 

findings contained in the court’s order clearly evidence its belief that the Wife’s Rule 60(b) 

motion was filed within a reasonable period of time. In addition, although several older 

federal cases have suggested that the one-year time limit contained in Rule 60(b) of the 

Federal Rules of Civil Procedure is an “extreme limit,” this Court has never so held. See

Patricia H. v. Gregory M., No. 15-0461, 2016 WL 3141574, at *3-4 (W. Va. June 3, 2016) 

(memorandum decision) (where husband had failed to disclose the pendency of a class 

action back pay claim, family court did not abuse its discretion in re-opening divorce decree 

entered seven years earlier in order to permit wife to challenge the equitable distribution 

award). More importantly, however, as noted by the circuit court, Rule 60(b) sets a specific 

time limit, one year, only on motions brought pursuant to subsections (1), (2), and (3), 

whereas Wife’s motion was decided under subsection (6), which contains no time limit.

14

 

 Additionally, asset forth in her motion, and apparent on the face of the record,

Wife was at a serious disadvantage from the onset of the divorce proceedings to their 

conclusion, and beyond, inasmuch as Husband, a lawyer, drafted and filed all of the 

14 Subsection (1) applies to mistake, inadvertence, surprise, excusable neglect, or 

unavoidable cause; subsection (2) applies to newly discovered evidence; and subsection 

(3) applies to fraud, misrepresentation, or other misconduct of an adverse party. Subsection 

(6), upon which the court relied in this case, is a catchall provision that applies “to any 

other reason justifying relief from the operation of the judgment.” W. Va. R. Civ. P. 60(b). 
16

documents,

15 picked the forum,16 and did not even notify Wife when the divorce was filed 

or granted. In contrast, Wife, who did not work outside the home during the marriage, was 

a self-represented litigant who clearly did not want to divorce and believed that Husband 

was open to the possibility of reconciliation. Further, Wife alleges that she had no idea of 

the extent of the parties’ marital estate, having never had access to tax returns or other 

information related to Husband’s business interests; in fact, when she asked to see the 

parties’ 2017 tax return, Husband specifically refused her request. Only after securing 

counsel did Wife gain access to any information that would have put her on notice that 

Husband had possibly misrepresented the size of the marital estate. Finally, Husband 

remarried on May 24, 2019, which would necessarily have an impact on counsels’ 

determination of how best to proceed in securing relief for their client – and would 

necessarily have an impact on the time it took to prepare appropriate pleadings. 

 Taking all of these factors into account, we have no difficulty in concluding 

that Wife’s challenge to the monetary provisions of the settlement agreement, brought 

pursuant to Rule 60(b) and based on Husband’s failure to file financial disclosures which 

would have, at the least, required further inquiry on the part of the court, was timely. We

15 This Court has held that “[r]egardless of how simple, amicable, and uncontested 

the divorce may be, the preparation of documents for the opposing party raises the 

possibility of prejudice and presents the appearance of impropriety.” Walden v. Hoke, 189 

W. Va. 222, 228, 429 S.E.2d 504, 510 (1993). 

16 According to Wife, Husband specifically chose to file in circuit court rather than 

family court “because circuit judges will sign off.” 
17

note that this conclusion is consistent with West Virginia Code § 48-7-206(2) (2015), 

which provides that,

If any party deliberately or negligently fails to disclose 

information which is required by this part 2 and in consequence 

thereof any asset or assets with a fair market value of five 

hundred dollars or more is omitted from the final distribution 

of property, the party aggrieved by the nondisclosure may at 

any time petition a court of competent jurisdiction to declare 

the creation of a constructive trust as to all undisclosed assets, 

for the benefit of the parties and their minor or dependent 

children, if any, with the party in whose name the assets are 

held declared the constructive trustee, such trust to include 

such terms and conditions as the court may determine. The 

court shall impose the trust upon a finding of a failure to 

disclose such assets as required under this part 2.

(Emphasis added.) 

 Husband’s second timeliness argument is that by filing a Rule 60(b) motion, 

Wife was attempting to disavow a contract – the settlement agreement – and that our 

precedents require such action to be taken within a reasonable time, based on all attendant 

facts and circumstances. We may dispose of this argument without extended discussion. 

First, Wife did not file an action seeking relief from the terms of a contract; rather, she filed 

a Rule 60(b) motion seeking to vacate and set aside a divorce order on the ground, inter 

alia, that it had been entered without notice and without a hearing, both mandated by law. 

See text infra. Second, the two century-old cases upon which Husband relies, Hobbs v. 

Hinton Foundry, Mach. & Plumbing Co., 74 W. Va. 443, 82 S.E. 267 (1914) and Adams 

v. Adams, 82 W.Va. 244, 95 S.E. 859 (1918), are wholly inapposite, as both deal with the 

time limits for disaffirmance of a contract into which an individual entered when he or she 
18

was a minor. Further, Hobbs cuts against Husband’s argument that Wife’s retention and 

beneficial use of the equitable distribution precludes her right to seek relief; in syllabus 

point 7 of that opinion, the Court held that 

[t]he retention, for three months after full age, of possession of 

property purchased by an infant, his enjoyment of the 

beneficial use thereof, payment of part of the consideration 

therefor, and his offer for sale of part thereof do not preclude 

right to disaffirm or authorize the inference of an intention to 

ratify. 

Hobbs, 74 W. Va. at 444, 82 S.E. at 268. In Adams, the Court held that a son who, while 

still a minor, entered into a contract giving up his right to inherit from his father because 

his inheritance had been advanced during the father’s lifetime, could not disaffirm the 

contract after his father’s death, which occurred seven years after the son reached the age 

of majority. Adams, 82 W. Va. at 245, 95 S.E. at 860. Here, in contrast, the time which 

elapsed between Wife’s discovery of information concerning Husband’s financial interests 

and her filing for Rule 60(b) relief is measured in months, not in years. 

 In this latter regard, in attempting to characterize the time lapse prior to Wife’s 

filing as unreasonable, Husband claims that she deliberately delayed filing the motion until 

after she had received the balance of the agreed-upon $205,000.00 equitable distribution.

17

This argument presupposes that Wife had information concerning Husband’s business 

17 For approximately three months prior to early December, 2018, at which time 

Wife vacated the marital home and executed a deed, Husband charged her rent to live in 

the home, deducting these sums from the equitable distribution. 
19

interests prior to early December, 2018, when she vacated the marital home and received 

the money, yet there is not a scintilla of evidence in the record to support even an inference

that this was the case. To the contrary, Wife avers in her Motion to Vacate and Set Aside 

Final Divorce Order that she, “through the undersigned counsel, only recently obtained 

limited information regarding the potential value of the marital estate.” (Emphasis in 

original). Further, in her Affidavit she explained that when she learned that not only had 

the divorce papers been filed but that the divorce had been granted, she “was neither 

emotionally nor financially able to challenge [Husband’s] decision to pursue the divorce 

or his refusal to disclose our finances.” 

 The remainder of Husband’s attempt to frame this case as a contract dispute 

is skeletal at best and incomprehensible at worst.

18 The fact is that no amount of judicial 

legerdemain can transform Wife’s Rule 60(b) motion into an action for breach of contract.

Additionally, Husband’s effort to argue that Wife’s alleged “anticipatory breach” was 

untimely has no more evidentiary support than his parallel claim that her Rule 60(b) motion 

was untimely. 

18 Husband asserts that Wife’s filing of a Rule 60(b) motion was “along the lines of 

an anticipatory breach . . . which does not render the Agreement a nullity.” In support of 

this assertion, Husband cites Puckett v. United States, 556 U.S. 129 (2009), where the

Supreme Court of the United States held that although the Government’s failure to honor 

one term of a defendant’s plea agreement did not render the agreement a nullity, “the 

defendant is entitled to seek a remedy, which might in some cases be rescission of the 

agreement[.]” Id. at 137. It is difficult to discern why Husband considers this case to be 

helpful to his position. 
20

 Husband’s third challenge is that the circuit court erred in vacating a portion 

of the divorce order without requiring Wife “to return the benefits of the Agreement after 

the set aside.” Again, this alleged error requires little discussion. Husband cites not one 

case in support of such a requirement, relying instead on the argument that “[a]llowing 

[Wife] to retain the entire benefit of the Agreement and order, while also having an 

opportunity to request more from [Husband], is not a legal equitable result under the 

circumstances.” The fatal flaw in this argument is that it ignores the anticipated legal 

proceedings contemplated by the circuit court: whether it is determined that Husband’s 

undisclosed income was his separate property, as he claims, or that some or all of it was 

marital property, as Wife claims, all issues of equitable distribution and spousal support 

will be determined de novo by the family court, thus resolving all issues of who-oweswhom. Given the parties’ respective financial positions, insofar as this this may be inferred 

from the tax returns and affidavits contained in the appendix record, it is not at all 

inequitable to maintain the status quo in the meantime. 

 Husband’s final argument relating to the Rule 60(b) motion is that the circuit 

court erred in granting only partial relief, i.e., in reversing only that portion of the divorce 

order which confirmed the terms of the parties’ settlement agreement but leaving the 

divorce decree intact. This is a curious argument for Husband to make, in that such an 

action by the circuit court, had it been taken, would necessarily have had two results: first, 
21

it would have made Husband’s current marriage voidable19 and exposed him to a possible 

charge of bigamy, Harvey v. Harvey, 171 W. Va. 237, 242, 298 S.E.2d 467, 472 (1982); 

and second, it would have required the circuit court to dismiss the divorce action20 and 

leave the parties to refile it in family court, which is exactly the result that Husband seeks 

to prohibit. In any event, it is clear from the text of Rule 60(b) that the court’s discretion 

is broad, and that “upon such terms as are just, the court may relieve a party or a party’s 

legal representative from a final judgment, order, or proceeding[.]” (Emphasis added). It 

cannot be gainsaid that here, in light of Husband’s remarriage, the court’s decision was not 

only just but positively Solomonic: the court granted Wife the only relief that was feasible 

under the circumstances -- a determination of spousal support and equitable distribution 

based on full financial disclosures -- since Husband’s remarriage had most assuredly ended 

any possibility of reconciliation between the parties, and vacating the divorce decree would 

have caused serious harm to an innocent third party. In short, in light of all the facts and 

circumstances presented in this case, we conclude that the circuit court’s vacation of only 

one part of its order was wholly consistent with the overriding purpose of Rule 60(b), which 

“must be carefully interpreted to preserve the delicate balance between the sanctity of final 

judgments, expressed in the doctrine of res judicata, and the incessant command of the 

19 See W. Va. Code § 48-3-103(1) (2015).

20 See text infra, discussing W. Va. Code § 51-2A-2(b).
22

court's conscience that justice be done in light of all the facts.” N.C. v. W.R.C., 173 W. Va. 

434, 437, 317 S.E.2d 793, 796 (1984).

 Notwithstanding our rejection of Husband’s specific challenges concerning

the circuit court’s grant of Rule 60(b) relief, we acknowledge that the basis for the court’s 

ruling is less than persuasive: that “[Wife’s] expressed desire not to proceed with the 

divorce implicitly included disavowal of the terms set forth in the Separation Agreement. 

Because [Wife] did not want to divorce, she necessarily did not want to be bound by the 

Separation Agreement that dictated the division of the parties’ property upon divorce.” 

However, it is long-established in our precedents that “[t]his Court may, on appeal, affirm

the judgment of the lower court when it appears that such judgment is correct on any legal 

ground disclosed by the record, regardless of the ground, reason or theory assigned by the 

lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 

140 S.E.2d 466 (1965); see also Noland v. Va. Ins. Reciprocal, 224 W. Va. 372, 382, 686 

S.E.2d 23, 33 (2009) (“In reviewing an appeal of a circuit court's order, we look not to the 

correctness of the legal ground upon which the circuit court based its order, but rather, to 

whether the order itself is correct, and we will uphold the judgment if there is another valid 

legal ground to sustain it.”) (citing Yourtee v. Hubbard, 196 W. Va. 683, 690 n.9, 474 

S.E.2d 613, 620 n.9 (1996)). Thus, whether or not it logically follows that Wife’s desire 

to halt the divorce proceedings is evidence that she no longer agreed to the terms of the 
23

settlement agreement, we find that there are four indisputable facts in this case that, taken 

together, demonstrate beyond doubt that Husband is not entitled to extraordinary relief. 

 First, the parties did not exchange any financial information, in violation of 

the unequivocal mandate set forth in syllabus point one of Preece v. Preece, 195 W. Va. 

460, 465 S.E.2d 9097 (1995):

“‘W. Va. Code, 48-2-33 [1984],21 requires a full disclosure of 

one spouse’s financial assets to the other spouse at the time of 

divorce, and contemplates a meaningful hearing on the subject 

of equitable distribution of property at which the spouse 

submitting financial data may be cross-examined concerning 

the nature, origin and amount of assets.’ Syllabus point 1, 

Hamstead v. Hamstead, 178 W. Va. 23, 357 S.E.2d 216 (1987), 

overruled on other grounds, Roig v. Roig, 178 W. Va. 781, 364 

S.E.2d 794 (1987).” Syl. Pt. 2, Metzner v. Metzner, 191 W. 

Va. 378, 446 S.E.2d 165 (1994). 

(Footnote added); see also Syllabus, Buckler v. Buckler, 195 W. Va. 705, 466 S.E.2d 556 

(1995), and Syl. Pt. 2, Mitchell v Mitchell, 205 W. Va. 203, 517 S.E.2d 300 (1999). Further, 

the existence of a settlement agreement does not excuse the parties from this statutory 

obligation because only upon full disclosure of financial information can the circuit court 

21 Pursuant to Acts 2001, 5th Ex. Sess., c. 5, effective September 19, 2001, this 

statutory provision is now contained in West Virginia Code § 48-7-201 (2015), which 

provides in relevant part that “in all divorce actions and in any other action involving child 

support, all parties shall fully disclose their assets and liabilities within forty days after the 

service of summons or at such earlier time as ordered by the court.” We note that there is 

no room for debate as to whether the statute applies only to “divorce actions . . . involving 

child support,” as the only issue in Preece was the fairness of the parties’ property 

settlement agreement. 
24

fulfill its duty “to determine whether the separation agreement was fair and reasonable[.]” 

Preece, 195 W. Va. at 465, 465 S.E.2d at 922; see also Buckler, 195 W. Va. at 712, 466 

S.E.2d at 563 (“Where no meaningful financial disclosure is made, a determination of the 

fairness or reasonableness of a settlement agreement is difficult or impossible.”). In this 

regard, the Court in Preece specifically held that such a determination by the court “is 

necessary in all divorce cases involving a separation agreement.” Id. at 464, 465 S.E.2d at 

921.22 

 Second, the circuit court did not hold any hearing, let alone a “meaningful 

hearing” within the meaning of Preece, Buckler, and Mitchell, before entering the divorce 

decree. Absent a hearing, the court could not fulfill its mandate under West Virginia Code 

§ 48-7-102(3) (2015) to determine whether “the agreement, viewed in the context of the 

actual contributions of the respective parties to the net value of the marital property of the 

parties, is so inequitable as to defeat the purposes of this section, and such agreement was 

inequitable at the time the same was executed.” With the clarity of hindsight, the circuit 

court tacitly acknowledged that its failure to conduct any inquiry was a mistake: “[h]ad the 

22 In Clay v. Clay, 182 W. Va. 414, 418, 388 S.E.2d 288, 292 (1989), this Court held 

that in a case where both parties were represented by competent counsel, nothing in the 

statutory framework was “intended to force upon a trial court an affirmative duty to 

question the wisdom of a spouse's apparent satisfaction with the terms of a property 

settlement agreement[.]” We are not called upon to determine whether Clay was limited 

by, or even overruled by, Preece, since the instant case involves an agreement signed by a

self-represented litigant. 
25

Court been aware [Wife] did not agree to the divorce and that she had effectively 

withdrawn her consent to the Separation Agreement when the proposed divorce order was 

presented, the Court would not have entered the Order.” With respect to this issue, it is 

important to note that although the Wife had waived her right to formal service of the 

divorce petition, she never waived her right to a final hearing. Cf. Fernandez, 218 W. Va.

at 345, 624 S.E.2d at 782 (where appellant wife had not been provided written notice of 

final divorce hearing, circuit court abused its discretion in denying relief under Rule 60(b)). 

 Third, this case should have raised a red flag from the moment it was filed. 

Husband, the party seeking the divorce and drafting and filing all of the paperwork,

including the paperwork for Wife, was a licensed attorney. Wife, then a forty-five-yearold woman who had not worked outside the home during the marriage and was not 

represented by counsel, was waiving spousal support and agreeing to a distribution of 

property without any disclosure of Husband’s assets and liabilities. Thus, although the 

circuit court was authorized to accept jurisdiction pursuant to West Virginia Code § 51-

2A-2(b), see text infra, under the facts and circumstances presented here it would have 

been prudent – at the least – for the court to make some inquiry to determine that the terms 

of the parties’ settlement agreement were equitable and that Wife had freely agreed to those 

terms. 

 Fourth, the amount in controversy here is substantial: Wife claims that 

Husband had some five million dollars of undisclosed income during the six years of the 
26

parties’ marriage, while Husband claims that any income-producing assets he owns are 

separate property and neither the assets nor the income therefrom are subject to equitable 

distribution. Although this Court takes no position on these issues, which are not before 

us at this interlocutory stage of the proceedings, we concur with the circuit court’s 

assessment that they merit full testimonial and evidentiary exploration. 

 Taking all of these factors into account, we find that the circuit court’s grant 

of relief to Wife pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, and 

vacation, in part, of its order, was well within the broad ambit of the court’s discretion and 

therefore presents no “clear legal error” meriting extraordinary relief. This does not end 

our inquiry, however, as Husband contends that the court had no authority to transfer the 

case to family court for further proceedings. We turn to that issue.

Circuit Court’s Transfer of Case to Family Court

 The circuit court originally accepted jurisdiction of this case pursuant to West 

Virginia Code § 51-2A-2(b), which provides:

If an action for divorce, annulment, or separate maintenance 

does not require the establishment of a parenting plan or other 

allocation of custodial responsibility or decision-making 

responsibility for a child and does not require an award or any 

payment of child support, the circuit court has concurrent 

jurisdiction with the family court over the action if, at the time 
27

of the filing of the action, the parties also file a written property 

settlement agreement executed by both parties.23

(Footnote added.) However, when the court subsequently concluded that “[e]ffectively, no 

controlling written property settlement agreement exists in this case,” it was confronted 

with a unique issue: what happens next? The parties suggest several possibilities. The first

is that once the court set aside the settlement agreement, it no longer had jurisdiction under 

the statute and was therefore required to vacate its order and dismiss the case from its 

docket, which in turn would require the parties to refile the action in family court and begin 

anew. The second possibility is that the court’s ruling did not divest it of jurisdiction 

because the statute speaks only to the establishment of jurisdiction at the outset based on 

the existence of a written settlement “at the time of the filing of the action.” Having been 

granted jurisdiction based on the posture of the case at the outset, the court, in continued

exercise of that jurisdiction, was thus authorized to proceed in a manner that would best 

serve the ends of justice: to vacate its prior order and dismiss the case; or to vacate only a 

portion of its order and conduct further proceedings on the issues of spousal support and 

equitable distribution; or to vacate only a portion of its order and transfer the matter to 

family court for resolution of the property issues. In this case, the court took the latter 

action, which prompted Husband’s filing of a petition for writ of prohibition. 

23 Pursuant to Rule 9(a) of the Rules of Practice and Procedure for Family Court, a 

circuit court has discretion as to whether to accept jurisdiction of a case filed pursuant to 

West Virginia Code § 51-2A-2(b). 
28

 We begin by examining the question of whether the court had continuing

jurisdiction in the case after determining that Wife had implicitly withdrawn her assent to 

the settlement agreement. Husband argues that the language of the statute is dispositive, 

in that the only requirement for a circuit court’s exercise of jurisdiction in a divorce case 

is the filing of a written property settlement agreement, signed by both parties, at the time 

the action is filed. He further argues that nothing in the statute, and nothing in this Court’s 

precedents, suggest that once jurisdiction is accepted by the circuit court, see supra note 

23, the court’s rulings in the case can operate to divest it of jurisdiction after the fact. 

 In contrast, Wife argues that allowing the circuit court to continue exercising 

jurisdiction would be to reward Husband for forum-shopping, which she defines as “us[ing] 

his superior position as a practicing attorney to ramrod through a divorce Order that 

violated clearly established law[.]” Although there is some evidence in the record to 

suggest that Husband’s decision to file the case in circuit court was attributable to his belief 

that “circuit judges will sign off[,]” this does not alter the fact that the court had jurisdiction 

of the matter pursuant to the clear language of the statute. See id. Further, Wife’s argument 

fails to take into account that if in fact the court lost jurisdiction the moment this became a 

contested case – more than a year after the final divorce order had been granted – then the 

only action available to the court was to vacate its entire order and dismiss the case, because 

any order issued by a court without subject matter jurisdiction is void and unenforceable. 

In this regard, we have held that “‘“[w]henever it is determined that a court has no 
29

jurisdiction to entertain the subject matter of a civil action, the forum court must take no 

further action in the case other than to dismiss it from the docket.” Syllabus Point 1, Hinkle 

v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975).’ Syl. 

Pt. 1, Hanson v. Bd. of Educ. of the Cnty. of Mineral, 198 W.Va. 6, 479 S.E.2d 305 (1996).” 

Syl. Pt. 5, State ex rel. Dale v. Stucky, 232 W. Va. 299, 752 S.E.2d 330, 332 (2013). 

 Reviewing the language of the statute and assessing the parties’ respective 

arguments, we have little trouble in concluding that a circuit court, having once accepted 

jurisdiction of an action for divorce pursuant to West Virginia Code § 51-2A-2(b) (Supp. 

2020), is not divested of jurisdiction where one or both parties subsequently seek to contest 

the divorce and/or the property settlement agreement. In this regard, we examine the 

language of the statute, which gives concurrent jurisdiction to circuit courts and family 

courts in divorce or separate maintenance cases which do not require the establishment of 

a parenting plan or other allocation of custodial responsibility or decision-making 

responsibility for a child; do not require an award or any payment of child support; and in 

which “at the time of the filing of the action, the parties also file a written property 

settlement agreement executed by both parties.” Id. (emphasis added). This language is 

clear and unambiguous, which is both the beginning and the end of this Court’s inquiry

because “‘[a] provision which is clear and unambiguous and plainly expresses the 

legislative intent will not be interpreted by the courts but will be given full force and effect.’

Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 6, State ex rel. 

Biafore v. Tomblin, 236 W. Va. 528, 782 S.E.2d 223 (2016). Although it appears evident 
30

that the Legislature’s intention was to give parties a choice of forum in uncontested divorce 

cases, nothing in the statute or its correlative rule, Rule 9(a) of the Rules of Practice and 

Procedure for Family Court, would circumscribe the authority of a circuit court to proceed

as it deems appropriate in the event the case, once accepted, develops in a manner which 

requires additional fact-finding and/or contested adjudication. 

 We therefore turn to the question of whether the circuit court’s choice of 

remedy, transfer to the family court for further proceedings, was clear error. Husband 

argues that while circuit courts have both original and appellate jurisdiction over family 

courts, see Syl. Pt. 3, Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106 (2009) and Syl. Pt. 

4, State ex rel. Silver v. Wilkes, 213 W.Va. 692, 584 S.E.2d 548 (2003), they neither 

supervise nor control those courts and therefore have no inherent power to transfer cases 

to them. Husband also contends that while a circuit court has statutory authority to transfer 

a case to another circuit court for good cause shown, West Virginia Code § 56-9-1 (2020),24

24 West Virginia Code § 56-9-1 (2020) provides that:

A circuit court, or any court of limited jurisdiction established 

pursuant to the provisions of section 1, article VIII of the 

Constitution of this state, wherein an action, suit, motion or 

other civil proceeding is pending, or the judge thereof in 

vacation, may on the motion of any party, after ten days’ notice 

to the adverse party or his attorney, and for good cause shown, 

order such action, suit, motion or other civil proceeding to be 

removed, if pending in a circuit court, to any other circuit court, 

and if pending in any court of limited jurisdiction hereinbefore 

mentioned to the circuit court of that county: Provided, That 
31

and authority under Rule 42(b) of the West Virginia Rules of Civil Procedure to order the 

transfer and consolidation of related cases pending in circuit court or magistrate court,

25 it 

has no authority under any statute or rule to transfer a case to family court. We are 

unpersuaded by Husband’s attempt to set an arbitrary boundary on the powers and duties 

of a circuit court; to the contrary, we have held that “circuit courts are courts of general 

jurisdiction and have power to determine all controversies that can possibly be made the 

subject of civil actions.” Silver, 213 W. Va. at 692, 584 S.E.2d at 548, Syl. Pt. 3; see also

Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 756, 591 S.E.2d 308, 314 (2003) (“circuit 

courts have original and general jurisdiction and other powers as set forth in Article VIII, 

§ 6 of the Constitution of West Virginia.”) Further, and of particular significance, 

[p]ursuant to Article VIII, Sections 6 and 16 of the West 

Virginia Constitution, W.Va. Code § 51–2–2 (1978), and the 

Family Court statutes, W.Va. Code §§ 51–2A–1 to 23 (2001), 

family courts are courts of limited jurisdiction and are inferior 

to circuit courts. Family courts are, therefore, subject to both 

the appellate jurisdiction and the original jurisdiction of the 

circuit courts in this State.

the judge of such other circuit court in a case of removal from 

one circuit to another may decline to hear said cause, if, in his 

opinion, the demands and requirements of his office render it 

improper or inconvenient for him to do so.

25 It suffices here to note that the rule “makes no substantial change in preexisting 

legal principles relating to consolidation of related suits or actions[,]” Holland v. Joyce, 

155 W. Va. 535, 541, 185 S.E.2d 505, 510 (1971), and has nothing to do with family court 

cases. 
32

Silver, 213 W. Va. at 693, 584 S.E.2d at 549, Syl. Pt. 4. 

With these principles in mind, we return to the facts of this case and the 

choice of remedies available to the circuit court – a court which had become convinced 

that its earlier order “operate[d] to unfairly prejudice a party,” and that “for justice to be 

accomplished, the portion of the Court’s Order approving and adopting the Separation 

Agreement must be vacated.” Dismissal of the action, thus requiring the parties to file a 

new action in family court and begin again, was not a viable option under the unique facts 

and circumstances of this case; because Husband had remarried, dismissal of the case 

would make his new marriage voidable, possibly expose him to a charge of bigamy, and 

cause damage and harm to an innocent third party. Taking evidence and determining 

property and support issues in circuit court was a viable option, but one the court reasonably 

elected not to exercise in light of its conclusion that “[t]he Family Court is best equipped 

to determine the equitable distribution of property and spousal support.” We believe, and 

so hold, that where a circuit court has accepted jurisdiction of a divorce case pursuant to 

West Virginia Code § 51-2A-2(b) (Supp. 2020) and one or both parties subsequently seek 

to contest the divorce and/or the property settlement agreement, the court may vacate any 

prior orders and dismiss the action from its docket; proceed to take testimony and/or 

evidence necessary to resolve the contested issues; or transfer the case to the family court 

for resolution of the contested issues. Which of these remedies is elected by the court is a 

matter within its sound discretion, based on the facts and circumstances of the particular 
33

case, and the court’s decision will not be disturbed on appeal other than on a finding of 

abuse of discretion. 

 

 In light of the facts and circumstances presented here, all as set forth in the 

circuit court’s factual findings which have not been made the subject of any assignment of 

error, we find that the court’s decision to remand the case to family court was well within 

its sound discretion and therefore not in excess of its jurisdiction.

26 

IV. Conclusion

For the foregoing reasons, the Writ of Prohibition prayed for is denied.

 Writ Denied.

26 In light of our resolution of this issue, it is unnecessary to consider Husband’s 

claim that the family court had no authority to accept this case on remand.