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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Elizabeth P.,

Petitioner Below, Petitioner

vs) No. 18-1048 (Wayne County 09-D-374)

Gid M., 

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Elizabeth P.,

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pro se, appeals the September 26, 2018, order of the Circuit Court 

of Wayne County denying petitioner’s appeal from the July 27, 2018, order entered by the Family 

Court of Wayne County. The family court designated Respondent Gid M. as the residential parent 

and ordered overnight visitation between petitioner and the parties’ child every Friday and 

Saturday. The child’s guardian ad litem (“GAL”), Attorney D. Scott Bellomy, filed a response in 

support of the circuit court’s order.2

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

arguments are adequately presented, and 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 finds 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.

 

1Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. 

Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 

2There was no response filed by respondent. 

FILED

October 18, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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The record is sparse,3but we glean the following: The parties have an eleven-year-old 

child together. Petitioner currently resides in Ohio, while respondent and the child live in Wayne 

County, West Virginia. According to the GAL, the child previously resided in Ohio with petitioner. 

The child subsequently reported to the GAL that, while in petitioner’s care, the child missed school 

to such an extent that the child was in danger of being held back in the fifth grade. Accordingly, 

after a June 22, 2018, evidentiary hearing, the Family Court of Wayne County designated 

respondent as the residential parent, with parenting time during the week, and allowed petitioner 

overnight visitation with the child every Friday and Saturday. The GAL states that the family 

court’s ruling was in accordance with his recommendation, which he made following an 

investigation. 

Petitioner did not appeal the family court’s July 27, 2018, order until August 30, 2018. By 

order entered on September 26, 2018, the Circuit Court of Wayne County found that petitioner 

filed her appeal outside the thirty-day time frame for appeals from family court. Accordingly, the 

circuit court denied petitioner’s appeal on the ground that it was untimely filed. Petitioner now 

appeals the circuit court’s September 26, 2018, order.

In the Syllabus of Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004), we held:

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. 

Rule 28(a) of the West Virginia Rules of Practice and Procedure for Family Court (“family court 

rules”) provides:

A party aggrieved by a final order of a family court may file a petition for appeal 

to the circuit court no later than thirty days after the family court final order was 

entered in the circuit clerk’s office. If a motion for reconsideration has been filed 

within the time period to file an appeal, the time period for filing an appeal is 

suspended during the pendency of the motion for reconsideration.

On appeal, petitioner fails to address the circuit court’s ruling that her appeal was untimely 

filed but argues that the family court’s July 27, 2018, order was erroneous. The GAL counters that 

the family’s decision was correct and further notes the circuit court’s decision to deny petitioner’s 

appeal due to untimeliness. 

 

3On November 29, 2018, petitioner informed this Court that transcripts were not necessary 

for our consideration of her appeal. Petitioner’s appendix consists only of the most recent court 

orders (with attached holiday schedule and visitation rules), notices, and certificates of service. On 

March 13, 2019, petitioner filed a motion to supplement her appendix with additional documents. 

By order entered on March 19, 2019, we denied that motion for noncompliance with the West 

Virginia Rules of Appellate Procedure. 
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We find that we cannot review petitioner’s challenge to the family court’s order under the 

facts and circumstances of this case. In Syllabus Point 3 of Crea v. Crea, 222 W. Va. 388, 664 

S.E.2d 729 (2008), we held: “Rule 28(a) of the [family court rules] is not jurisdictional and may 

be extended for good cause. To the extent that Washington v. Washington, 221 W. Va. 224, 654 

S.E.2d 110 (2007), is inconsistent with this holding, it is overruled.” We found in Crea that there 

was no good cause for allowing a late appeal given the lack of “any explanation whatsoever as to 

why Mr. Crea failed to draft a timely appeal to the circuit court” and the failure to present any 

argument “as to any impediment that impacted his ability to timely file his appeal to the circuit

court.” Id. at 393, 654 S.E.2d at 734. 

Here, as indicated above, petitioner failed to address the circuit court’s ruling that her 

appeal was untimely. Based on our review of the limited record, we find no impediment that 

impacted petitioner’s ability to file a timely appeal to the circuit court. In addition, petitioner filed

no motion for reconsideration, which would have suspended the time in which she had to appeal, 

and no motion for an extension of time to appeal as permitted by Rule 32 of the family court rules.4

Accordingly, we conclude that the circuit court did not err in denying petitioner’s appeal due to its 

untimeliness. 

 

For the foregoing reasons, we affirm the circuit court’s September 26, 2018, order denying 

petitioner’s appeal from the family court’s July 27, 2018, order designating respondent as the 

residential parent with overnight visitation between petitioner and the parties’ child every Friday 

and Saturday.

 Affirmed.

ISSUED: October 18, 2019 

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

DISSENTING:

Justice Margaret L. Workman

 

4Rule 32 of the family court rules provides:

The circuit court may, for good cause shown in a written motion, 

extend the time prescribed by these rules for doing any act related 

to the appeal before it, or may permit an act to be done after the 

expiration of such time. Provided, however, that any extension of 

time granted by the circuit court may not exceed a period of ten days. 
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WORKMAN, J., dissenting:

The majority’s memorandum decision focuses on the unrepresented Petitioner-mother’s 

failure to adhere to time deadlines and the Rules of Appellate Procedure in this case involving 

custody of a small child. Petitioner was three days late filing her appeal to the circuit court and 

she did not comply with our appellate rules by providing the Court with an appendix record that 

comports with Rules 6(c) and Rule 7 of the Rules of Appellate Procedure in her appeal to this 

Court.

However, this Court should focus at least as much attention on compliance with the rule 

of law by the lower courts (and certainly by this Court) as on a litigant without a lawyer. Neither 

the family court order nor the circuit court order set forth any legal context whatsoever for their 

decisions. Nor does the opinion of the majority of this Court. The reader of the majority opinion 

is left to wonder: was this the appeal of an initial custody order; or was it the appeal of the grant 

of a modification of custody; or was it some other kind of appeal? Standards of review govern 

the context in which legal decisions are made by courts. Neither this opinion nor the orders 

below give the slightest clue as to the legal context of the ruling being made.1

As numerous commentators have noted: “When used properly, standards of review 

require appellate judges to exercise self-restraint and in so doing, act to create a more respected 

and consistent body of appellate law and a more efficient judicial system.” Amanda Peters, The 

Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L. Rev. 233, 235-36 

(2009) (quoting Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 Seattle U. 

L. Rev. 11, 12 (1994)). Moreover, 

Standards of review balance the power among the courts, enhance 

judicial economy, standardize the appellate process, and give the 

parties in a lawsuit an idea of their chance of success on appeal. 

All of these policies are interconnected. And, when appellate court 

judges use standards of review faithfully and consistently, these 

principles are upheld.

Id. at 238 (2009). As the Fourth Circuit has noted:

The purpose of standards of review is to focus reviewing courts 

upon their proper role when passing on the conduct of other 

decision-makers. Standards of review are thus an elemental 

expression of judicial restraint, which, in their deferential varieties, 

safeguard the superior vantage points of those entrusted with 

 

1The guardian ad litem at least attempts to argue standards of review, making passing references 

to “not clearly erroneous” and/or “abuse of discretion,” but once again we are not provided context 

as to the substantive manner in which the issues are before the lower court. 
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primary decisional responsibility. . . .[S]tandards of review do 

matter, for in every context they keep judges within the limits of 

their role and preserve other decision-makers' functions against 

judicial intrusion.

Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 320–21, 326 (4th Cir. 2008). 

Moreover, 

The appellate court can properly decide an issue on appeal only 

after establishing the proper standard of review. Whether stated or 

not, when an appellate court decides a case, it is necessarily 

applying some standard of review. By failing to state the standard 

that it is applying, the reviewing court contributes to the ‘black 

box’ nature of appellate decision-making. Moreover, the failure to 

state the standard adds credence to the suspicion that the “rules 

governing judicial review have no more substance at the core than 

a seedless grape.”

Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in 

the Illinois Appellate Court, 34 S. Ill. U. L.J. 73, 107 (2009) (quoting Ernest Gellhorn & Glen O.

Robinson, Perspectives on Administrative Law, 75 Colum. L. Rev. 771, 780 (1975)).

During his immensely productive two years on this Court, Justice Cleckley re-focused us 

on the importance of standards of review: 

One legacy left by Justice Cleckley was the attention to and the 

application of the appropriate standard of review. In preparing the 

petition and the briefs, appellate attorneys must address the 

standard of review applicable to the issues being raised. The 

appropriate standard of review governs the analysis of the issues. 

Setting forth the standard of review provides the justice a 

framework within which to consider questions presented.

Robin Jean Davis, Effective Appellate Petition and Brief Writing, West Virginia Lawyer, March 

1998, 11-MARWVLAW 7. Yet this Court in this memo decision goes blithely along with the 

two lower courts in failing to do so. 

The standard of review for an initial allocation of child custody decision is vastly 

different from the standard of review for a modification of child custody. See Syl. Pt. 2, Cloud 

v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977) (“To justify a change of child custody, in 

addition to a change in circumstances of the parties, it must be shown that such change would 

materially promote the welfare of the child.”) (emphasis added). 

 

In adopting substantial changes to the Rules of Appellate Procedure in 2010, this Court 

modified our procedures to include memorandum decisions. See RAP 21 Specifically, the 

Clerk’s Comments to Rule 21 provided for memorandum decisions as “providing a procedure 
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whereby parties can request a non-precedential disposition early in the development of the 

case[]” by means of an “abbreviated decision on the merits that will not contain a syllabus and 

will not be published in the West Virginia Reports.” However, this Court has also held in State v. 

McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) and more recently in In re. T.O., 238 W. Va. 

455, 796 S.E.2d 564 (2017), that memorandum decisions do have precedential value. Although 

memorandum decisions are much shorter statements of the issues involving no new points of 

law, they should not short-shift the basic ingredients of a legal opinion, which must at minimum 

provide the legal context in which a decision is made and a discussion of the standard of review.

The result in the instant case may be no different if this case was remanded. This is not 

about what is a correct result. This is about courts following the law and holding themselves to 

a standard at least as great as the one to which it holds unrepresented litigants in child custody 

cases. 

This case should have been remanded to require the lower courts to enter orders which 

comport with the law; and this Court should have enunciated our standard of review and 

reviewed an appeal of the lower court order within that standard.