1 

 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

Robert Brumfield, 

Plaintiff Below, Petitioner

vs.) No. 22-0037 (Cabell County 21-C-02) 

Christina McComas, 

Defendant Below, Respondent

MEMORANDUM DECISION

Self-represented Petitioner Robert Brumfield appeals the December 15, 2021, order of the 

Circuit Court of Cabell County denying his motion to alter or amend its November 29, 2012, 

order. 1 In the November 29, 2012, order, the circuit court granted Respondent Christina 

McComas’s amended motion to dismiss petitioner’s civil action seeking relief from the August 

21, 2007, final order and the August 5, 2008, contempt order entered by the Family Court of Cabell 

County in the parties’ divorce case. Upon our review, we determine that oral argument is 

unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.

See W. Va. R. App. P. 21. 

 Respondent filed her petition for divorce in the family court in December of 2006. At that 

time, two of the parties’ children were minors. The family court, by temporary order entered on 

April 21, 2007, set petitioner’s child support obligation at $500 per month “as this is the traditional 

amount that he is accustomed to contributing toward the monthly expenses of the household.” In 

the August 21, 2007, final order granting the parties a divorce, the family court continued 

petitioner’s child support obligation at $500 per month, finding that neither party had provided the 

financial information necessary “to run the child support formula” and that “[c]hild support should 

continue as set forth in the [t]emporary [o]rder until such time as the financial information is 

provided.” The family court further directed the equitable distribution of the marital estate 

according to an assets and debt sheet attached to the final order. The family court ordered that

1

Petitioner is self-represented. Respondent Christina McComas appears by counsel Maggie 

J. Kuhl. 

FILED

February 7, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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petitioner pay respondent $387.77 to equalize the equitable distribution. Petitioner appealed the

family court’s final order to the circuit court, which, by an order entered on December 3, 2007, 

affirmed the final order. This Court, by order entered on December 29, 2008, refused petitioner’s 

appeal from the circuit court’s December 3, 2007, order. 

While petitioner’s appeal of the circuit court’s December 3, 2007, order was pending before 

this Court, the family court, by order entered on August 5, 2008, found that petitioner was in 

contempt due to the non-payment of child support. In making its contempt finding, the family court

noted that it intended that both parties “should provide appropriate income information,” but

attributed the difficulty in calculating petitioner’s child support obligation to his failure to provide 

“reports from an accountant, tax returns, book work from his business or W-2’s or 1099’s.” The 

family court determined that the child support issue did not remain open following the entry of the 

final order. Rather, if the appropriate information would have been provided, and “[i]f a 

modification was indicated based on that information, the previous order could be modified upon 

the appropriate filing of a [p]etition for [m]odification.” Moreover, the family court had 

information about petitioner’s earnings during 2007 and 2008, through June 19, 2008. Based upon 

that information, the family court found that it would not have modified petitioner’s child support 

obligation because “the $500.00 [per month] child support previously set was appropriate.”

Therefore, the family court continued petitioner’s child support obligation at $500 per month.2

Finally, the family court granted respondent a judgment for $4,000, the amount of petitioner’s 

child support arrearage at that time, plus interest. Petitioner appealed to the circuit court which, by 

order entered on November 14, 2008, denied the appeal. Petitioner did not appeal the circuit court’s 

November 14, 2008, order to this Court. Subsequently, in December of 2020, the West Virginia 

Bureau of Child Support Enforcement (“BCSE”) served a writ of execution, with an attached

affidavit of accrued support, upon petitioner. The BCSE stated that, as of November 23, 2020, 

petitioner’s child support arrearage totaled $24,188.98.3

On January 4, 2021, petitioner filed an independent action in the circuit court against 

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

from the family court’s August 21, 2007, final order and August 5, 2008, contempt order. On May 

4, 2021, petitioner filed an amended complaint, which was served upon respondent. In the 

amended complaint, petitioner sought a constructive trust to preserve “[his] interest in 

[respondent]’s property located . . . [in] Barboursville, West Virginia,” due to “[respondent]’s use 

of $4000.00 in marital funds for the purchase of that property” and “[respondent]’s use of the 

monies that exceeded the correct child support obligations due from [petitioner] from January 2007 

through June 2007[.]” Petitioner also asked for a determination that respondent conspired with her 

2

For June of 2008 only, the family court reduced petitioner’s child support obligation to 

$50 due to an injury he had suffered. 

3

As of August of 2021, the parties no longer had any minor children. Therefore, only 

petitioner’s child support arrearage is now at issue. 
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attorney and the family court judge to obtain rulings against petitioner in the parties’ divorce case.

4

Respondent filed a motion and then an amended motion to dismiss petitioner’s independent action. 

Following an October 29, 2021, hearing, the circuit court, by order entered on November 29, 2021, 

dismissed petitioner’s action, finding that the amended complaint failed to state a claim on which 

relief can be granted. Petitioner filed a motion to alter or amend the November 29, 2021, dismissal 

order, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, which the circuit court 

denied on December 15, 2021.

Petitioner now appeals the circuit court’s December 15, 2021, and November 29, 2021, 

orders. We have held that the standard of review for a Rule 59(e) motion to alter or amend a 

judgment “is the same standard that would apply to the underlying judgment upon which the 

motion is based and from which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. Am. 

Travellers Life In. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998). Therefore, we apply the standard 

applicable to motions to dismiss and review the dismissal of petitioner’s amended complaint de 

novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 

516 (1995).

On appeal, petitioner initially argues that the November 29, 2021, order dismissing the 

amended complaint “with prejudice” does not accurately reflect the circuit court’s ruling at the 

October 29, 2021, hearing.5 Petitioner asserts that the circuit court intended the dismissal of the 

amended complaint to be without prejudice because the court stated that it was dismissing the 

amended complaint “at this time.” However, it is clear that the circuit court dismissed the amended 

complaint for a failure to state a claim on which relief can be granted. With regard to this basis for 

the dismissal,6 the circuit court relied on two grounds: (1) an independent action seeking relief 

4 Petitioner sought compensatory damages from respondent due to (1) child support 

payments that were allegedly calculated erroneously; (2) alleged errors in the marital distribution; 

(3) “the loss of consortium with the parties’ [youngest child], and for parental alienation which 

occurred as a result of [respondent]’s actions”; (4) various types of emotional distress due to 

“[respondent]’s sole or collusive actions [(with respondent’s attorney and the family court judge 

in the parties’ divorce case)]”; (5) mental anguish, aggravation, annoyance, and inconvenience; 

(6) impediments to petitioner practicing law since he passed the bar examination in 2017

(petitioner explained that his child support arrearage prevents him from being licensed as an 

attorney); and (8) “[respondent]’s criminal false swearing.” Petitioner further asked for punitive 

damages for respondent’s alleged false swearing and to punish her for causing harm to petitioner. 

Finally, petitioner sought incidental and consequential damages, as well as court costs and 

prejudgment interest. 

5

Respondent’s counsel prepared the November 29, 2021, dismissal order.

6

In the November 29, 2021, order, the circuit court set forth additional reasons for the 

dismissal of the amended complaint. However, herein, we discuss only the amended complaint’s 

failure to state a claim on which relief can be granted as we find that the circuit court properly 

dismissed the amended complaint on that basis. 

 
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from a prior judgment did not exist in West Virginia; and (2) petitioner impermissibly sought to 

relitigate issues from the parties’ divorce case, as “everything goes back to the divorce.” Petitioner 

asked for clarification, and the circuit court stated that “[petitioner’s] total complaint fails to state 

a cause of action in West Virginia upon which relief can be granted.” (Emphasis added.) Therefore, 

based upon our review of the October 29, 2021, hearing transcript, we find that the circuit court 

intended to dismiss the amended complaint with prejudice, as accurately reflected in the November 

29, 2021, order.

Next, we find that petitioner is correct in arguing that the circuit court erred in finding that 

an independent action seeking relief from a prior judgment did not exist in West Virginia. Rule 

60(b) of the West Virginia Rules of Civil Procedure permits “an independent action to relieve a 

party from a judgment, order or proceeding, . . . or to set aside a judgment for fraud upon the 

court.” However, “[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) (citing Yourtee v. Hubbard, 196 W. Va. 683, 690 

n.9, 474 S.E.2d 613, 620 n.9 (1996)) (“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.”).

With regard to independent actions seeking relief from a prior judgment, we have held:

“The definition of an independent action, as contemplated by [Rule] 60(b), 

is an equitable action that does not relitigate the issues of the final judgment, order 

or proceeding from which relief is sought and is one that is limited to special 

circumstances.” Syllabus Point 2, N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 

(1984).

“In order to obtain relief from a final judgment, order or proceeding through 

an independent action, the independent action must contain the following elements: 

(1) the final judgment, order or proceeding from which relief is sought must be one 

that, in equity and good conscience, should not be enforced; (2) the party seeking 

relief should have a good defense to the cause of action upon which the final 

judgment, order or proceeding is based; (3) there must have been fraud, accident or 

mistake that prevented the party seeking relief from obtaining the benefit of his 

defense; (4) there must be absence of fault or negligence on the part of the party 

seeking relief; and (5) there must be no adequate legal remedy.” Syllabus Point 3,

N.C. v. W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984).

Syl. Pts. 1 & 2, Downing v. Ashley, 193 W. Va. 77, 454 S.E.2d 371 (1994). Therefore, while the 

circuit court erred in finding that no independent action was available pursuant to Rule 60(b), we 

find that the circuit court’s dismissal of the amended complaint was correct due to the alternative 

ground that petitioner impermissibly sought to relitigate issues from the parties’ divorce case. 
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Rule 12(b)(6) of the West Virginia Rules of Civil Procedure provides that an action may 

be dismissed for “[a] failure to state a claim upon which relief can be granted.” The sufficiency of 

a complaint may be tested pursuant to Rule 12(b)(6). See Newton v. Morgantown Machine & 

Hydraulics of W. Va., Inc., 242 W. Va. 650, 653, 838 S.E.2d 734, 737 (2019). Respondent argues

that the circuit court properly granted her amended motion to dismiss petitioner’s independent 

action. We agree with respondent. We have recognized that “liberalization in the rules of pleading 

in civil cases does not justify a . . . baseless pleading.” Sticklen v. Kittle, 168 W. Va. 147, 164, 287 

S.E.2d 148, 157-58 (1981). Accordingly, “[i]f a plaintiff does not plead all of the essential elements 

of his or her legal claim, a [trial] court is required to dismiss the complaint pursuant 

to Rule 12(b)(6).” Newton, 242 W. Va. at 653, 838 S.E.2d at 737 (quoting Louis J. Palmer, Jr. and 

Robin Jean Davis, Litigation Handbook on West Virginia Rules of Civil Procedure, 406-07 (5th 

ed. 2017) (quotations and citation omitted); see Sticklen, 168 W. Va. at 164, 287 S.E.2d at 158 

(finding that a plaintiff must state every essential element of the cause of action in the complaint). 

Pursuant to Syllabus Point 1 of Downing, an independent action is limited to special 

circumstances, not including the re-litigation of the issues from the prior action. 193 W. Va. at 78, 

454 S.E.2d at 372. While petitioner attempted to assert claims for fraud and conspiracy involving 

respondent, respondent’s divorce attorney, and the family court judge who presided in the parties’ 

divorce case, all of petitioner’s allegations to support those ostensible claims involved issues 

litigated during the parties’ divorce case. Furthermore, in the amended complaint, petitioner failed 

to plead the essential five elements set forth in Syllabus Point 2 of Downing to maintain an 

independent action contemplated by Rule 60(b). Id. at 78, 454 S.E.2d at 372. The amended 

complaint alleged that respondent not only colluded with her attorney to conceal assets, but also 

conspired with the family court judge to obtain rulings against petitioner. Based upon our review 

of the family court’s orders in the divorce case,7 we find that its rulings had reasonable bases in 

law, and there is no reason to question the family court judge’s impartiality. See State v. Brown, 

177 W. Va. 633, 641, 355 S.E.2d 614, 622 (1987). On the other hand, it is obvious from the 

amended complaint that petitioner wishes to relitigate the equitable distribution of the marital 

estate and the establishment of his child support obligation. Therefore, we conclude that 

petitioner’s amended complaint is a baseless pleading, and there is no reason, in equity and good 

conscience, not to enforce the various orders entered by the family court in the parties’ divorce 

case merely because petitioner is dissatisfied with those orders.

In Downing, we found that such a determination “not only invalidate[s] the claim as an 

independent action, but also bar[s] [the action] under the doctrine of res judicata.” 193 W. Va. at 

81, 454 S.E.2d at 375. Three elements must be satisfied before the prosecution of an action may 

be barred on the basis of res judicata: (1) there must have been a final adjudication on the merits 

by a court having jurisdiction of the proceedings; (2) the second proceeding must involve the same 

7

Petitioner includes the family court’s orders in his appendix. As we found in Forshey v. 

Jackson, 222 W. Va. 743, 747, 671 S.E.2d 748, 752 (2008), a motion to dismiss is not converted 

into a summary judgment motion when a court “consider[s] matters that are susceptible to judicial 

notice.” (internal quotations and citations omitted). 
6

parties, or persons in privity with those same parties, as the first proceeding; and (3) the cause of 

action in the second proceeding must be identical to the cause of action determined in the first 

proceeding or must be such that it could have been resolved, had it been presented, in the first 

proceeding. Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W. Va. 469, 498 S.E.2d 41 

(1997). Considering the last two elements first, there is no dispute that petitioner’s independent 

action involves the same parties as their divorce case. Due to our finding that petitioner attempted 

to use his independent action to pursue a re-litigation of issues, we find that the third element 

necessary for the doctrine of res judicata to apply is also satisfied.

Nevertheless, petitioner argues that the doctrine of res judicata does not apply because there 

was no final adjudication on the merits.

8 We disagree. Petitioner argues that the family court’s 

August 21, 2007, final order and August 5, 2008, contempt order never became final due to the 

family court’s failure to rule on motions he filed asking for reconsideration of its rulings. Rule 25 

of the West Virginia Rules of Practice and Procedure for Family Court provides, in pertinent part, 

that “[a]ny party may file a motion for reconsideration of a family court order as provided in [West 

Virginia Code] § 51-2A-10.” Petitioner analogizes motions filed pursuant to West Virginia Code 

§ 51-2A-10 to motions to alter or amend judgment pursuant to Rule 59(e) of the West Virginia 

Rules of Civil Procedure, which “suspend[ ] the finality of the judgment and make[ ] the judgment 

unripe for appeal.” Syl. Pt. 7, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995). 

However, petitioner’s argument is misplaced.

In Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d 454, 457 n.13 (2004), overruled on 

other grounds by Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106 (2009), we found that motions

pursuant to West Virginia Code § 51-2A-10 have replaced motions for relief from judgment under 

Rule 60(b) of the West Virginia Rules of Civil Procedure in the family court. Like Rule 60(b) 

motions, motions for reconsideration filed under West Virginia Code § 51-2A-10 do not suspend 

the finality of an order. See Syl. Pt. 1, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974) 

(holding that, unlike Rule 59(e) motions, Rule 60(b) motions do not toll running of the applicable 

appeal period on the underlying order). Rule 25 of the West Virginia Rules of Practice and 

Procedure for Family Court provides, in pertinent part, that it is an appeal of a family court order 

8

To the extent that petitioner raises other issues, including challenges to the family court’s 

jurisdiction in the parties’ divorce case, we do not address any such issues herein because we find 

them to be without arguable merit. Rule 10(c)(7) of the West Virginia Rules of Appellate 

Procedure provides, in pertinent part, that “[t]he brief must contain an argument clearly exhibiting 

the points of fact and law presented, the standard of review applicable, and citing the authorities 

relied on, under headings that correspond with the assignments of error” and that this Court “may 

disregard errors that are not adequately supported by specific references to the record on appeal.” 

In addition to the confusing nature and sheer frivolity of petitioner’s arguments, this Court, by 

order entered on August 18, 2022, granted respondent’s motion to strike portions of petitioner’s 

appendix, including the family court transcripts from the parties’ divorce case. While petitioner 

states that he also provides video recordings of the family court hearings, we do not find any such 

recordings in the appendix. Accordingly, we “take as non[-]existing all facts that do not appear in 

the [appendix record] and . . . ignore those issues where the missing record is needed to give factual 

support to the claim.” State v. Honaker, 193 W. Va. 51, 26 n.4, 454 S.E.2d 96, 101 n.4 (1994). 
7

that suspends “the time for filing a motion for reconsideration . . . during the pendency of the 

appeal.” Therefore, we find that the family court’s failure to rule on petitioner’s motions for 

reconsideration did not prevent the August 21, 2007, final order and the August 5, 2008, contempt 

order from becoming final adjudications on the merits.

Due to petitioner’s allegations of fraud, we note that an exception to the doctrine of res 

judicata exists where one party’s fraud prevents the other party from litigating his claims in the 

previous case. See Blake, 201 W. Va. at 477, 498 S.E.2d at 49. Respondent argues that, while 

petitioner bases some of his fraud claims upon alleged newly discovered evidence, those claims 

have been developed from petitioner’s review of the records from the parties’ divorce case. As we 

have held, for the doctrine of res judicata to bar a subsequent action, “[i]t is not essential that the 

matter should have been formally put in issue in a former suit, but it is sufficient that the status of 

the suit was such that the parties might have had the matter disposed of on its merits.

[Furthermore,] [a]n erroneous ruling of the court will not prevent the matter from being res 

judicata.” Syl. Pt. 3, in part, Downing, 193 W. Va. at 78, 454 S.E.2d 372 (quoting Syl. Pt. 1, In re 

McIntosh’s Estate, 144 W. Va. 583, 109 S.E.2d 153 (1959)). Petitioner appealed the family court’s 

orders in the parties’ divorce case, and the family court’s orders were upheld. Pursuant to Syllabus 

Point 3 of Downing, even if the family court’s rulings regarding the distribution of the marital 

estate and petitioner’s child support obligation were erroneous, its rulings have become final and 

trigger the doctrine of res judicata to bar petitioner’s Rule 60(b) action. 193 W. Va. at 78, 454 

S.E.2d at 372. Therefore, we conclude that the circuit court properly dismissed the amended 

complaint for a failure to state a claim on which relief can be granted.

For the foregoing reasons, we affirm the circuit court’s December 15, 2021, order denying 

petitioner’s motion to alter or amend judgment and its November 29, 2021, order granting 

respondent’s amended motion to dismiss petitioner’s civil action seeking relief from the family 

court’s August 21, 2007, final order and August 5, 2008, contempt order in the parties’ divorce 

case. 

Affirmed.

ISSUED: February 7, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn