STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Richard Pauley, Petitioner Below,
 

Petitioner FILED
 

November 5, 2015 

released at 3:00 p.m. vs) No. 14-0933 (Kanawha County 78-977) RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Connie Jean Walker and West Virginia Dept. of Health 

and Human Resources, Bureau of Child Support 

Enforcement, Respondents Below, 

Respondents 

MEMORANDUM DECISION 

Petitioner Richard Pauley, appearing pro se, appeals an order from the Circuit Court 

of Kanawha County, West Virginia, entered on August 18, 2014, that affirmed an August 13, 

2013, order of the Family Court of Kanawha County. In its order, the family court granted 

a decretal judgment of $47,462.63 for past due child support, plus interest, and directed 

petitioner to make arrearage payments of $150 per month. Respondent Connie Walker,1 

appearing pro se, filed a response. Respondent BCSE, by counsel Dee-Ann Burdette, filed 

a response. Petitioner filed a reply. 

On appeal, petitioner raises eleven assignments of error.2 We address the errors as 

1

Connie Walker was formerly known as Connie Jean Pauley. She changed her name 

shortly after filing her request for services with the West Virginia Department of Health and 

Human Resources, Bureau of Child Support Enforcement (“the BCSE”). She will be 

referred to as Ms. Walker throughout this opinion. 

2

The pro se petitioner’s assigned errors are redundant and, at times, difficult to 

understand. We, therefore, address the main grounds, combining those that are duplicative, 

that petitioner reiterates throughout his brief as supporting his request for a reversal of the 

circuit court. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 

729 S.E.2d 231, 237 (2012) (stating that “the assignments of error will be consolidated and 

discussed accordingly.”); see also Franklin v. Pence, 128 W. Va. 353, 356, 36 S.E.2d 505, 

508 (1945) (recognizing that the assignments of error were general in nature making it 

“difficult to determine the exact points relied upon for reversal[,]” and causing the Court to 

(continued...) 

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follows: 1) whether the BCSE is representing Ms. Walker in contravention of West Virginia 

Code § 48-18-110(b) (2014), which provides, in pertinent part, that the counsel for the BCSE 

represents the State’s interest or the BCSE’s interest and “not the interest of any other 

party[;]” 2) whether the testimony of Ms. Walker was sufficient to support the original 

decretal judgment entered on March 11, 2005; 3) whether the circuit court erred in 

determining that the mailing of the notice for the March 1, 2005, hearing to petitioner at his 

last known address in Florida constituted “good service;” 4) whether petitioner is precluded 

from arguing that the statute of limitations barred Ms. Walker from obtaining the first 

decretal judgment on March 11, 2005; 5) whether the family court erred in not ruling on a 

September 2, 2010, motion for a continuance of a September 14, 2010, hearing because the 

motion, while not filed until September 30, 2010, was received by the BCSE the day before 

the hearing; and 6) whether petitioner’s retained counsel was ineffective at the July 23, 2013, 

hearing. 

After carefully reviewing the record provided, the briefs and oral arguments of the 

parties, and taking into consideration the relevant standard of review, the Court determines 

that the circuit court committed no error. Based on our decision that this case does not 

present a new question of law, a memorandum decision is appropriate under Rule 21 of the 

West Virginia Rules of Appellate Procedure. 

By order entered on July 6, 1978, petitioner and Ms. Walker were divorced and Ms. 

Walker was awarded custody of their two children.3 In the divorce order, the circuit court 

set petitioner’s child support obligation at $160 per month.4 According to the BCSE’s brief, 

2

(...continued) 

rely upon “statements in the brief” that were “considered as indicating the main grounds of 

attack upon the judgment”); State ex rel. Dillon v. Egnor, 188 W. Va. 221, 227, 423 S.E.2d 

624, 630 (1992) (recognizing that “‘[w]hen a litigant chooses to represent himself, it is the 

duty of the trial court [and this Court] to insure fairness, allowing reasonable 

accommodations for the pro se litigant so long as no harm is done an adverse party . . . .’”) 

(citation omitted). 

3

Ms. Walker indicated in her response and during oral argument that she never 

received any support from petitioner. Petitioner never spoke with his children on the 

telephone, never sent them Christmas or birthday cards and did not come to, or contribute any 

money towards, one of his son’s funeral. 

4

According to the record, Petitioner’s child support was reduced to $80 per month 

when his oldest child turned eighteen years old. The parties’ youngest child attained the age 

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“as the state agency responsible for establishing and enforcing support obligations, [the 

BCSE] was established in 1986, and began assisting Connie Jean Walker at that time.”5 See 

W. Va. Code § 48A-2-1 (1996) (establishing West Virginia Child Advocate Office for 

purpose of enforcing child support orders) (repealed) and W. Va. Code §§ 48-18-101 (2014) 

(establishing Bureau for Child Support Enforcement in 1995). 

On July 21, 2004, the BCSE filed a motion in family court to determine petitioner’s 

arrearage and a motion for a decretal judgment. On January 7, 2005, the BCSE mailed 

petitioner a notice of a hearing that was set for March 1, 2005, regarding the BCSE’s 

motions. The notice was mailed to petitioner’s last known address, which was 2416 S.W. 

5th Terrace Apartment 2, Cape Coral, Florida,6 both by certified mail and first class mail. The 

certified mail was subsequently returned and was marked “unclaimed.” The first class mail, 

however, was not returned. Ms. Walker and the BCSE appeared at the March 1, 2005, 

hearing; however, petitioner did not. The BCSE presented the 1978 order and other records 

from the BCSE showing the arrearage amounts owed by petitioner in support of its motion. 

The family court also heard testimony from Ms. Walker and, based upon all the evidence, 

awarded her a decretal judgment of $35,445.86 for past due child support plus interest. In 

its March 11, 2005, order, the family court did not set a monthly arrearage payment, but 

authorized wage withholding to begin. 

According to petitioner, he did not learn of the March 11, 2005, judgment until 2008 

when wage withholding began. In 2008, petitioner retained an attorney, who filed a Petition 

to Determine Support Owed, Demand for Accord and Satisfaction and Removal of Arrears. 

Petitioner and the BCSE appeared for a hearing on that petition on April 14, 2009. 

Following the hearing, by order entered April 29, 2009, the family court denied the petition. 

In its order, the family court: 1) rejected petitioner’s argument that a 1979 order from the 

Circuit Court of Marion County that indicated the child support was modified to $50 per 

month controlled the amount of arrearage; 2) rejected petitioner’s argument that he did not 

receive notice of the March 1, 2005, hearing that led to the decretal judgment; 3) rejected 

petitioner’s argument that the statute of limitations barred the 2005 judgment; and 4) found 

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(...continued) 

of majority on December 18, 1994. 

5

The BCSE represented to the circuit court and the circuit court found in its August 

18, 2014, order that Ms. Pauley had completed an application for services with the 

Department of Health and Human Services (“DHHS”). See West Virginia Code §§ 9-3-1 to 

-5 (2012) (establishing application for and granting of assistance with the DHHS). 

6

Petitioner admitted in oral argument that this last known address was correct. 

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that res judicata applied, which precluded the family court from setting aside the March 11, 

2005, order. 

Petitioner appealed the family court’s April 29, 2009, order denying him relief from 

the March 11, 2005, decretal judgment to the circuit court. By order entered on July 14, 

2009, the circuit court denied petitioner’s appeal of the family court’s April 29, 2009, order. 

Significantly, petitioner did not seek review of the circuit court’s denial of the appeal in this 

Court. Petitioner, however, did file separate motions for reconsideration in the circuit court 

and in the family court on August 21, 2009. The circuit court denied the motion on 

September 29, 2009, and the family court denied the motion on October 1, 2009. Petitioner 

did not appeal either of these denials. 

On December 21, 2009, petitioner, by counsel, filed a motion to dismiss in family 

court.7 Petitioner took no action on his motion for nine months. On August 24, 2010, the 

BCSE filed a notice of a status hearing that was scheduled for September 14, 2010. 

Petitioner wrote the family court a letter dated September 2, 2010, requesting a continuance 

of the status hearing; however, the letter was not filed with the court until September 30, 

2010. The family court held the September 14, 2010, status hearing, and on September 21, 

2010, entered an order that noted petitioner’s non-appearance at the hearing and ruled that 

all prior orders of the court remained in full force and effect.8 

On January 3, 2011, the family court granted a motion by the BCSE for Regions Bank 

to disburse to it $291.43 that petitioner had in his bank account. On January 25, 2011, 

petitioner filed a motion requesting that the BCSE cease and desist its collection efforts. 

The case laid dormant for over two years. On May 17, 2013, the family court 

scheduled a status hearing for July 23, 2013. Petitioner retained a new attorney and appeared 

7

On September 8, 2010, petitioner’s attorney filed a motion to withdraw, which the 

family court granted. 

8

Petitioner complains that the family court never ruled on his motion to continue the 

September 14, 2010, hearing, stating that the motion, while not filed with the family court 

until September 30, 2010, was received by the BCSE one day prior to that hearing. We find 

petitioner’s argument is without merit. It is of no consequence that the BCSE received 

petitioner’s letter a day before the hearing as the decision to grant a continuance lies with the 

court. Further, Rule 19 of the West Virginia Rules of Practice and Procedure for Family 

Court requires a motion to continue be filed with the court “not less than seven days before 

the hearing.” That did not occur in this case as the record shows that the motion was not 

filed with the family court until after the hearing occurred. 

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for the July 23, 2013, hearing, while Ms. Walker appeared pro se. By order entered on 

August 8, 2013, the family court awarded Ms. Walker a judgment of $47,462.63 for past due 

child support, plus interest, and directed petitioner to make payments towards his arrearage 

in the amount of $150 per month. 

Petitioner appealed the family court’s August 8, 2013, order. On September 12, 2013, 

the circuit court refused the appeal as untimely filed. On October 11, 2013, petitioner 

appealed to this Court. On April 22, 2014, we entered an order that found that the appeal 

was timely and, therefore, remanded the case to the circuit court with directions to consider 

the appeal. 

On June 19, 2014, the circuit court, upon remand, held the matter in abeyance so that 

the parties could attempt to reach a settlement of the issues. No settlement was reached and 

on July 16, 2014, the circuit court scheduled a hearing in which the BCSE appeared by 

counsel, petitioner appeared pro se and Ms. Walker appeared pro se. 

Byorder entered August 18, 2014, the circuit court affirmed the familycourt’s August 

8, 2013, order. The circuit court found that: 1) the BCSE was authorized to appear and 

collect petitioner’s arrearage payments because Ms. Walker submitted “[an] application for 

services;” 2) the mailing of the notice for the March 1, 2005, hearing to the petitioner’s last 

known address “constituted good service,” pursuant to West Virginia Code § 48-18-122 

(2014) and West Virginia Rule of Civil Procedure 5; 3) petitioner failed to appear at the 

March 1, 2005, hearing and a decretal judgment in the amount of $35,445.86 was entered 

against him on March 11, 2005; and 4) petitioner failed to appeal the July 14, 2009, and 

September 30, 2009, orders of the circuit court, which denied petitioner’s appeal of family 

court orders refusing to set aside the March 11, 2005.9 The circuit court determined that it 

was “bound by the doctrine of res judicata as the matters at issue were fully litigated in the 

[Family] Court below and the Circuit Court and an appeal was not timely taken.” 

Petitioner now appeals the circuit court’s August 18, 2014, order affirming the family 

court’s August 13, 2013, order. We review the matter under the following standard: 

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 

9

The family court again rejected petitioner’s argument that the statute of limitation 

precluded the entry of the 2005 decretal judgment and refused petitioner’s argument that the 

1979 Marion County order controlled. 

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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). 

Petitioner first argues that the BCSE is representing Ms. Walker in contravention of 

West Virginia Code § 48-18-110(b), which provides, in pertinent part, that counsel for the 

BCSE represents the State’s interest or the BCSE’s interest, “and not the interest of any other 

party.” The BCSE counters that while it represents only the State, it may appear and collect 

petitioner’s arrearage payments because Ms. Walker applied for such services as provided 

by law. See W. Va. Code § 9-3-5; 45 C.F.R. § 302.33(a)(1)(i). Petitioner, however, contends 

that the application proving that Ms. Walker sought the BCSE’s services is not found in the 

record. Based on our review of the July 16, 2014, hearing transcript, we find that the BCSE’s 

counsel made a proffer to the circuit court that Ms. Walker had submitted an application for 

services. Petitioner did not object to the proffer or request that the application be introduced 

into evidence at the time the proffer was made. Because petitioner neither objected to the 

proffer nor requested that the application be made part of the record below, petitioner is 

precluded from now arguing for the first time on appeal that the absence of an application 

proves that the BCSE may not appear in this case. See Syl. Pt. 2, State ex rel. Cooper v. 

Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate 

review, a party must articulate it with such sufficient distinctiveness to alert a circuit court 

to the nature of the claimed defect.”). Further, the record demonstrates that the BCSE was 

not representing Ms. Walker at any of the proceedings below; rather, the record indicates that 

Ms. Walker was pro se. Therefore, we find that the circuit court did not err in determining 

that the BCSE had authority to act on behalf of the State based upon Ms. Walker’s 

application for services. 

Second, petitioner challenges the sufficiency of the evidence introduced before the 

family court at the March 1, 2005, hearing, which resulted in the March 11, 2005, decretal 

judgment against him.10 Petitioner contends that the family court improperly used the 1978 

10Petitioner also complains that there was no proof submitted by the BCSE of any 

arrearage amount to support the judgment against him. The record indicates otherwise. The 

1978 Kanawha County order was presented to the family court in support of the child support 

judgment entered against petitioner in 2005. The BCSE also proffered to the court the 

amount of arrears petitioner owed. Ms. Walker, as the obligee, also confirmed through her 

sworn testimony the arrearage amount petitioner owed. Thus, we find no merit to petitioner’s 

(continued...) 

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divorce decree instead of a 1979 Marion County order modifying the amount petitioner was 

to pay in child support. According to petitioner, due to an order entered in 1979 by the 

Circuit Court of Marion County, his child support obligation was reduced to $50 per month.11 

The case was apparently transferred to the Circuit Court of Marion County pursuant to the 

then Revised Uniform Reciprocal Enforcement of Support Act (“Act”),12 which is no longer 

in effect,13 for the purpose of enforcing the March 17, 1978, order of the Circuit Court of 

Kanawha County setting child support at $160 per month. Petitioner cites to no provision 

of the repealed Act that allowed the responding court (Marion County) to modify the order 

of the transferring court (Kanawha County). We, therefore, disregard petitioner’s argument 

that the Marion County order was the controlling order at the time the 2005 judgment was 

entered. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (providing 

that arguments without appropriate citation to pertinent authority are not considered). 

Moreover, petitioner does not dispute that the Marion County order was not made part of the 

record in the instant Kanawha County case until 2009 when his attorney filed it as part of the 

petitioner’s arguments that the March 11, 2005, judgment should be vacated. In 2009, the 

family and circuit courts rejected petitioner’s argument that the 1979 order was controlling 

and there was no appeal from those 2009 orders to this Court. Consequently, we find no 

error in the circuit court’s application of the doctrine of res judicata as a basis for denying 

the petitioner’s appeal. 

Petitioner also challenges the circuit court’s determination that the mailing of the 

notice for the March 1, 2005, hearing to petitioner’s last known address of 2416 S.W. 5th 

Terrace Apartment 2, Cape Coral, Florida, “constituted good service.” The BCSE counters 

that the circuit court correctly found that petitioner was properly served with the notice of the 

hearing, at which the first decretal judgment was entered, pursuant to both state statute and 

this Court’s rules. See W. Va. Code § 48-18-122(c) (upon a showing by BCSE that diligent 

effort was made to “ascertain the location of a party by delivery of written notice by certified 

mail, return receipt requested” to party’s most recent residential mailing address creates 

10(...continued) 

argument on this issue. 

11Ms. Walker indicated that she had no knowledge of the 1979 proceeding in Marion 

County. 

12See W. Va. Code §§ 48-9-1 to -42 (1972) (setting forth West Virginia’s Revised 

Uniform Reciprocal Enforcement of Support Act in effect at the time the case was 

transferred to Marion County from Kanawha County). 

13This Act was repealed by the Legislature in 1986. 

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presumption that requirements for notice have been met); W. Va. R. Civ. P. 5(b) (providing 

for service of written notice of hearing by mailing to party at party’s last known address). 

Petitioner acknowledges that notice of the March 1, 2005, hearing was delivered to the above 

address and does not dispute that the address above was his last known address at the time. 

Nevertheless, petitioner claims that he did not get notice of the hearing. We find petitioner’s 

position untenable. We, therefore, conclude that the circuit court correctly determined that 

the manner in which the BCSE served petitioner with notice of the March 1, 2005, hearing 

constituted “good service.” 

Petitioner next argues that the statute of limitations14 barred Ms. Walker from 

obtaining the first decretal judgment on March 11, 2005, because that judgment was based 

on an order from 1978.15 The BCSE counters that because petitioner did not appeal to this 

Court either the March 11, 2005, judgment or the adverse lower court rulings from the 2009 

proceeding, during which he raised the statute of limitations, he may not argue it now. We 

agree with the BCSE. As we have previously stated, “[i]ssues not raised on appeal or merely 

mentioned in passing are deemed waived.” See Tiernan v. Charleston Area Med. Ctr., Inc., 

203 W. Va. 135, 140 n.10, 506 S.E.2d 578, 583 n.10 (1998). Moreover, “[r]es judicata or 

claim preclusion ‘generally applies when there is a final judgment on the merits which 

precludes the parties or their privies from relitigating the issues that were decided or the 

issues that could have been decided in the earlier action.’” Beahm v. 7-Eleven, Inc., 223 W. 

Va. 269, 272-73, 672 S.E.2d 598, 601-02 (2008) (quoting, in part, State v. Miller, 194 W. Va. 

3, 9, 459 S.E.2d 114, 120 (1995)). Therefore, petitioner may not now argue that West 

Virginia Code § 38-3-18 barred the entry of the decretal judgment in 2005. We conclude that 

the circuit court did not err in affirming the family court’s August 13, 2013, order wherein 

the family court refused to revisit the March 11, 2005, judgment.16 

14The applicable statute of limitations governing the enforcement of judgments is ten 

years as set forth in West Virginia Code § 38-3-18 (1923). In 2008, the Legislature amended 

West Virginia Code § 38-3-18 (2011) to add a specific subsection pertaining to child support 

orders; however, because the decretal judgment in this case was entered on March 11, 2005, 

the pre-2008 version of West Virginia Code § 38-3-18 controls. 

15See Hedrick (Taylor) v. Hedrick, 218 W. Va. 116, 119, 624 S.E.2d 463, 466-67 

(2005) (allowing statute of limitations to be raised informally rather than pleaded as an 

affirmative defense); Shaffer v. Stanley, 215 W. Va. 58, 66-67, 593 S.E.2d 629, 637 (2003) 

(allowing statute of limitations to be raised in hearing). 

16Petitioner raises for the first time on appeal, that there was a “lack of representation, 

as well as inaccurate and harmful statements given as truths by . . . [his] counsel at . . . [the] 

(continued...) 

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For the foregoing reasons, we find no error in the decision of the Circuit Court of 

Kanawha County and affirm its August 18, 2014, order affirming the August 13, 2013, order 

of the Family Court of Kanawha County in which the family court awarded an updated 

judgment of $47,462.63 for past due child support, plus interest, and directed petitioner to 

make arrearage payments of $150 per month. 

Affirmed. 

ISSUED: November 5, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

16(...continued) 

July 23, 2013,” hearing before the family court. Petitioner offers that he felt compelled to 

“alert this Court” of certain alleged factual inaccuracies in the record below. Petitioner does 

not request relief from this Court for the alleged ineffectiveness of his counsel. Further, 

assuming, arguendo, that petitioner is seeking relief from the alleged “lack of 

representation,” he offers no authority as support for the relief he seeks. We find that this 

argument is not adequately supported and, accordingly, decline to address it. See W. Va. R. 

App. P. 10. 

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