1 

### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA

CHARLENE D. FLESHMAN

,

a ka Charlene D. Christy, Petitioner Below, Petitioner

vs.) No. 2 2

- ICA

- 20 ( Cir. Ct. Greenbrier Co. No. 22

- D

- AP

- 3)

JAMES A. FLESHMAN

, Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Charlene D. Fleshman appeal s the Circuit Court of Greenbrier County’s July 6, 2022

, O rder Refusing Appeal of the family court ’s order denying her spousal
support which accrued during the pendency of an earlier appeal. Respondent James A.

Fleshman filed a response in support of the circuit court’s order. Petitioner did not file a reply. 1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51

- 11

- 4 (2022). This Court has considered the parties’ briefs and the record on appeal. The decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court fin ds no substantial question of law and no prejudicial error. For these reasons a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate

Procedure.

The parties were divorced by final order entered on September 9, 2017, wherein respondent was ordered to pay petitioner one thousand dollars ($1,000.00) per month spousal support. Both parties appealed to circuit court wh ich remanded the matter back to family court

. The family court entered a Corrected Divorce Order, wherein twenty

- seven hundred dollars ($2,700.00) monthly spousal support was awarded , effective May 7, 2018

. Respondent did not pay the twenty

- seven hundred dollars ($2,700.00)

. Both parties appealed and the circuit court again remanded to family court, where spousal support was modified to one thousand dollars ($1,000.00) per month in an amended o rder on r emand,

entered December 30, 2020

. On February 4, 2020, petitioner filed a petition for contempt

to enforce the spousal support award that accumulated while the second appeal was

1 Petitioner is represented by Paul S. Detch, Esq. Respondent is represented by co

counsel Michelle L. Bechtel, Esq., and Alyson A. Dotson , Esq. 

### FILED November 15, 2022

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA2 pending ; petitioner also appealed the December 30, 2020

, family court order. The c ircuit

cou rt heard the appeal and remanded back to family court . On October 14, 2021, after remand, the family court entered a Corrected Amended Order , which was appealed by petitioner. The matter was heard by the circuit court and remanded back to the family court

with instruction s

. The f amily court entered its Second Corrected Order on R emand on March 23, 2022. Pursuant to this Order, respondent was ordered to pay petitioner one thousand dollars ($1,000.00) per m onth permanent spousal support dating back to December 1, 2017. Petitioner appealed to circuit court, which refused her appeal.

Petitioner now appeals the circuit court’s refusal of her appeal of the family court’s order denying her spousal support awarded in the May 7, 2018, order that accrued during the pendency of its appeal to circuit court . We apply the same standard of review that is applied by the Supreme Court of Appeals of West Virginia :

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 appl ication of law to the facts under an abuse of discretion standard. We review questions of law de novo

.

Syl., Carr v. Hancock , 216 W. Va. 474, 607 S.E.2d 803 (2004). “‘ Questions relating to [spousal support]...are within the sound discretion of the court and its action with respect

to such matter [ ] will not be disturbed on appeal unless it clearly appears that such

discretion has been abused.’ Syl., in part, Nichols v. Nichols , 160 W. Va. 514, 236 S.E.2d 36 (1977).” Syl. Pt. 2, Mulugeta v. Misailid is , 239 W. Va. 404, 801 S.E.2d 282 (2017);

accord Syl. Pt. 2

, Petruska v. Petruska , 200 W. Va. 79, 488 S.E.2d 354 (1996).

Petitioner argues that spousal support must be paid during the pendency of an appeal , pursuant to West Virginia Code § 51

- 2A

- 12(c) (2001) , which states

, “ An order granting a motion for a stay under the provisions of this section may not include a stay of an award for the payment of spousal support or child support pending the appeal, except that an award of past due child support may be stayed pending an appeal. ” She argues that

it was error for the lower court s not to require respondent to pay her the twenty

- seven hundred dollars ($2,700.00) monthly spousal support pursuant to the May 7, 2018

, order

, even though the award was later reversed.

In contrast, respondent argues that petitioner filed her contempt petition too l ate. The contempt petition should have been filed while the award was in effect and the appeal was pending, not after the family court’s order was reversed

, remanded , and spousal
support was recalculated

.3 After review, we find the circuit court did not abuse its discretion in refusing this appeal based on the untimeliness of the contempt petition

. Because the contempt action

was not commenced by petitioner during the time frame that the May 7, 2018

, order was in

effect , there is no avenue to enforce it.

Accordingly, we affirm.

Affirmed.

ISSUED: 

### November 15, 2022

CONCURRED IN BY:

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