STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

L.B.,
 

Respondent Below, Petitioner FILED
 

November 12, 2013 

RORY L. PERRY II, CLERK vs) No. 12-1035 (Greenbrier County 11-D-301) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

K.B.,
 

Petitioner Below, Respondent
 

MEMORANDUM DECISION 

Petitioner L.B.,1 appearing pro se, appeals the order of the Circuit Court of Greenbrier 

County, entered August 8, 2012, that refused her appeal of a divorce order, entered June 19, 2012, 

by the Family Court of Greenbrier County. The family court, inter alia, granted the parties a 

divorce and awarded respondent sole parental responsibility for the minor children. Respondent 

K.B., L.B’s former husband, by counsel Jeffrey S. Rodgers, filed a summary response. Petitioner 

filed a reply. 

The Court has considered the parties’ briefs2 and the record on appeal.3 The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

1 Because this is a domestic relations case, we protect the identities of those involved. See 

State ex rel. West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 

S.E.2d 181, 182 n.1 (1987). 

2 On May 20, 2013, petitioner moved this Court for permission to amend her brief to 

correct certain formatting errors and to add substantive arguments. The Court finds that because 

petitioner is proceeding pro se, it will not require strict compliance with formatting requirements. 

The Court grants in part and denies in part petitioner’s motion to add to her substantive arguments. 

On February 27, 2013, the Court directed petitioner to re-file her brief with appropriate citations to 

the record. Petitioner now indicates that when she re-filed her brief, she inadvertently omitted her 

argument that she should be awarded both Labrador Retrievers. However, the Court finds that the 

argument is frivolous given that petitioner testified at the June 18, 2012 final hearing that she could 

not even take possession of the male dog because she did not have a permanent residence. 

3 On January 29, 2013, petitioner moved to supplement the designated record. While this 

Court took judicial notice of the orders entered in proceedings under Nos. 11-DV-218, 11-M-32, 

11-M8-60, and 11-M8-71, the Court denied petitioner’s motion to supplement. Subsequent to the 

Court’s February 27, 2013 order that denied her motion, petitioner filed numerous other motions to 

supplement. After review of those motions, the Court declines to depart from its former decision to 

deny petitioner permission to supplement the designated record. Therefore, the motions are 

denied. 

-1­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioner and respondent were married on or about October 8, 2000, in Stafford, Virginia. 

The parties last cohabitated together as husband and wife in Greenbrier County, West Virginia, in 

November of 2009, after which they separated. The marriage produced two children. 

For the children’s protection, on September 8, 2011, the family court granted respondent a 

domestic violence protective order (“DVPO”) against petitioner until further order of the court. 

The family court awarded respondent temporary custody and temporary possession of the marital 

residence,4 and permitted petitioner to have supervised visitation with the children at the Family 

Visitation Center in Lewisburg, West Virginia. Subsequently, petitioner violated the DVPO and, 

as a result, was incarcerated. Consequently, the family court appointed petitioner a guardian ad 

litem who represented her throughout the proceedings before the family court.5 

On September 16, 2011, respondent filed for divorce and requested he be awarded sole 

parental responsibility for the children because of petitioner’s mental illness. Petitioner filed an 

answer to the divorce petition on December 15, 2011. The matter subsequently came on for a final 

hearing on June 18, 2012, at which the parties testified.6 

By order entered June 19, 2012, the family court granted the parties a divorce based on 

irreconcilable differences. The family court noted that petitioner sought spousal support from 

respondent because petitioner’s unemployment benefits were about to be reduced. The family 

court found that respondent’s gross monthly income is $1,900 and that he was providing all the 

support for the parties’ two children. The family court determined that respondent could not afford 

to pay spousal support, especially in the light of the fact that respondent was unlikely to receive 

child support from petitioner. The family court set petitioner’s monthly child support obligation at 

$0 and petitioner’s contribution to the children’s uncovered medical bills also at $0. 

The family court noted that petitioner sought custody of the children, but that she had no 

place to live at the time of the June 18, 2012, hearing. The family court also observed that while 

there was no testimony at the hearing concerning petitioner’s mental health, the state of 

petitioner’s mental health had been a concern given her conduct at an earlier hearing as well as her 

behavior that led to her arrest and incarceration. The family court allocated all parental 

responsibility and decision-making authority over the parties’ children to respondent. The family 

court continued petitioner’s visitation with the children at the Family Visitation Center. 

4 Respondent had been living in a guest house on the parties’ property. 

5 Petitioner indicates that she was released from incarceration after fifty-four days. 

6 This Court has reviewed the video recording of the June 18, 2012 final hearing. 

-2­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The family court provided petitioner with a means to retrieve certain items of personal 

property from the marital residence, but noted petitioner’s testimony that she had no place at the 

time to take the property. The family court found that petitioner had the same difficulty when it 

came to her desire to have the dog Grizzly: petitioner had no place to take the pet. The family court 

noted that respondent was willing to sell the marital residence and divide the equity with 

petitioner. The family court ordered the marital residence listed for sale for six months and that if 

the marital residence did not sell, it would be sold at auction.7 

Petitioner appealed pro se the family court’s divorce order. In an order entered on August 

8, 2012, the circuit court identified seven assignments of error: (1) the family court inappropriately 

linked the divorce with respondent’s earlier filing of a mental hygiene petition against petitioner; 

(2) the family court erred in awarding sole parental responsibility to respondent based on the 

earlier mental hygiene proceeding; (3) the divorce proceeding was tainted by the mental hygiene 

proceeding; (4) the guardian ad litem did not provide petitioner with effective assistance; (5) the 

family court erred in awarding sole parental responsibility to respondent because he was a violent 

person; (6) the Family Visitation Center did not work with petitioner in arranging visitation 

between petitioner and the parties’ children; and (7) petitioner’s homelessness should not have 

been held against her. 

The circuit court first determined that while the family court noted the concerns for 

petitioner’s mental health, the family court did not base its findings on the mental hygiene 

proceeding. The circuit court further noted that neither party presented evidence of petitioner’s 

mental health at the June 18, 2012 hearing. Therefore, the circuit court rejected petitioner’s first 

and third assignments of error. 

The circuit court found that while petitioner desired to have custody of the parties’ 

children, petitioner’s testimony reflected that she was homeless, did not have a permanent 

residence, and did not own a vehicle. The circuit court also noted that a DVPO was in place against 

petitioner for the children’s protection.8 Therefore, the circuit court rejected petitioner’s second 

and fifth assignments of error. The circuit court also rejected petitioner’s seventh assignment of 

error because the court found petitioner was denied custody because she had no place to take the 

children, and not because she was homeless. 

The circuit court next found that the record reflected that the guardian ad litem adequately 

represented petitioner at the June 18, 21012 hearing. Therefore, the circuit court rejected 

petitioner’s fourth assignment of error. 

The circuit court found that petitioner presented no evidence that the Family Visitation 

Center did not work with her in arranging visitation between petitioner and the parties’ children. 

The circuit court noted that the record contained a March 19, 2012 letter from the center to the 

7 Respondent’s obligation to sell the marital residence is currently stayed. 

8 During the pendency of this appeal, by an order entered July 12, 2013, the family court 

granted petitioner telephonic visitation with the parties’ children. Accordingly, by an order entered 

July 18, 2013, the family court lifted the DVPO against petitioner. 

-3­
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

family court stating that petitioner repeatedly cancelled visits, called the center to say that she 

would be over an hour late on more than one occasion, and was belligerent to staff to the point that 

law enforcement was contacted. Therefore, the circuit court rejected petitioner’s sixth assignment 

of error. Accordingly, the circuit court refused petitioner’s appeal of the family court’s June 19, 

2012 divorce order. Petitioner now appeals the circuit court’s August 8, 2012 order. 

Petitioner raises numerous assignments of error across a myriad of issues, to which 

respondent has responded. The family court’s rulings, and the factual findings supporting those 

rulings, are entitled to deference: 

In reviewing a final order entered by a circuit court judge upon a 

review of, or upon a refusal to review, a final order of a family court 

judge, we review the findings of fact made by the family court judge 

under the clearly erroneous standard, and the application of law to 

the facts under an abuse of discretion standard. We review questions 

of law de novo. 

Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Because the parties testified at 

the June 18, 2012, hearing, the family court is also entitled to deference to the extent that the 

family court relied on determinations it made of the parties’ credibility. See State v. Guthrie, 194 

W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (“An appellate court may not decide the 

credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of 

fact.”). With these standards in mind, and after careful consideration of the parties’ arguments and 

the record, this Court concludes that the circuit court’s refusal of petitioner’s appeal of the family 

court’s June 19, 2012 divorce order should be affirmed. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

-4­