STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Thomas B., FILED 

Petitioner Below, Petitioner February 22, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs.) No. 11-1454 (Kanawha County 99-D-2310) OF WEST VIRGINIA 

Bureau for Child Support Enforcement and 

Kiyomi J., Respondents Below, 

Respondents 

MEMORANDUM DECISION 

Petitioner Thomas B., pro se, appeals the circuit court’s September 29, 2011 order refusing 

his appeal from the family court’s July 29, 2011 order denying his petition for modification of 

child support, because support had already been set at the statutory minimum, and finding that 

there were no issues requiring the appointment of a Guardian ad litem for petitioner as a person 

under a disability. Respondent Bureau for Child Support Enforcement (“BCSE”), by Kimberly D. 

Bentley, its attorney, filed a response to which petitioner filed a reply.1 

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 is appropriate under Rule 21 of the Revised Rules of Appellate 

Procedure. 

Petitioner was first adjudicated the father of the minor child in this case in 2000.2 By an 

order entered July 7, 2000, the Circuit Court of Kanawha County adjudged petitioner to be the 

father by default and set his child support obligation at $188 per month. 

On February 13, 2009, the BSCE filed a petition for modification of child support in the 

Family Court of Kanawha County noting that petitioner was incarcerated3 and that his projected 

1 The respondent mother did not file a response. 

2 The child was born on October 24, 1999. 

3 See Syl. Pt. 6, Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007) (“The support obligation 

of an incarcerated person should be set in light of that person’s actual earnings while incarcerated 

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release date was likely greater than six months from the filing of its modification petition.4 During 

the pendency of its petition, the BSCE also presented the family court with petitioner’s request that 

genetic testing be performed. 

By an order entered April 27, 2009, the family court reduced petitioner’s child support 

obligation to $50 per month finding that “[s]ince the [July 7, 2000,] order was entered, there has 

been a significant change in circumstances as father is currently incarcerated.” The family court 

further ordered that petitioner’s support obligation shall automatically revert back to $188 per 

month once he is released from incarceration and that judgment on arrears shall be held in 

abeyance. By an order entered August 13, 2009, the family court confirmed petitioner’s paternity 

of the minor child finding that “paternity test results . . . were filed which show a statistical 

probability of paternity of 99.99%.” 

On June 2, 2011, petitioner filed a petition for modification of child support asserting that 

his child support obligation should be set at $0 per month because of his incarceration. He also 

filed for a motion for a Guardian ad litem to be appointed on his behalf. 

The family court conducted a hearing on petitioner’s modification petition on July 18, 

2011, at which the BCSE appeared by counsel and petitioner appeared, pro se, via telephone. The 

respondent mother did not appear. The family court denied both petitioner’s petition and his 

motion for a Guardian ad litem finding that “[c]hild support is already set at the statutory 

minimum[5

] and there are no legal issues requiring the appointment of a guardian ad litem.” 

Petitioner appealed to the circuit court which refused his appeal. 

and other assets of the incarcerated person practically available to provide such support.”). 

4 According to the BCSE, petitioner became incarcerated around August of 2007, and that it was 

not advised of his incarceration until December of 2008. 

5 “[T]he Legislature has made clear that child support obligations continue even when a parent is 

imprisoned.” Adkins v. Adkins, 221 W.Va. 602, 607, 656 S.E.2d 47, 52 (2007) (citing W.Va. Code 

§ 25-1-3c) (footnote omitted). In addition, West Virginia Code § 48-13-302 provides as follows: 

If combined adjusted gross income is below five hundred fifty 

dollars per month, which is the lowest amount of income considered 

in the table of monthly basic child support obligations set forth in 

subsection (a) of this section, the basic child support obligation shall 

be set at fifty dollars per month or a discretionary amount 

determined by the court based on the resources and living expenses 

of the parents and the number of children due support. 

(emphasis added). 

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STANDARD OF REVIEW 

In Syllabus Point One of Adkins v. Adkins, 221 W.Va. 602, 656 S.E.2d 47 (2007), this Court 

held as follows: 

“In reviewing a final order of a family court judge that is appealed 

directly to this Court, we review findings of fact by a 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.” [Syl. Pt. 1,] May v. May, 214 W.Va. 394, 

589 S.E.2d 536 (2003). 

DENIAL OF PETITIONER’S MOTION FOR A GUARDIAN AD LITEM 

Petitioner argues that the family court erred in denying his motion to be appointed a 

Guardian ad litem, citing, inter alia, State ex rel. Lawson v. Wilkes, 202 W.Va. 34, 38, 501 S.E.2d 

470, 474 (1998) (“Rule 17(c) of the West Virginia Rules of Civil [P]rocedure requires, in relevant 

part, the appointment of a guardian ad litem for a convict not otherwise represented in an action.”) 

(footnote omitted). However, this Court in Lawson reiterated that “[i]n the absence of an express 

written waiver of his right to a committee under W.Va. Code, 28-5-36, or a guardian ad litem 

under Rule 17(c) of the West Virginia Rules of Civil Procedure, a suit cannot be directly 

maintained against a prisoner. [citations omitted]” 202 W.Va. at 38, 501 S.E.2d at 474 (emphasis 

by the Court). The BSCE notes that petitioner was the party who filed the petition, so he was the 

one bringing the instant proceeding. The BSCE further notes that petitioner appeared at the hearing 

on his petition via telephone. See Syl. Pt. 2, in part, Quesinberry v. Quesinberry, 191 W.Va. 65, 

443 S.E.2d 222 (1994) (Under Rule 17(c), “the appointment of a guardian ad litem for an 

incarcerated convict in a civil action is not mandatory if the court can reasonably order another 

appropriate remedy while the convict remains under the legal disability of incarceration.”). 

Therefore, after careful consideration of the parties’ arguments, this Court concludes that the 

family court did not abuse its discretion in denying petitioner’s motion to be appointed a Guardian 

ad litem. 

DENIAL OF PETITIONER’S PETITION FOR
 

MODIFICATION OF CHILD SUPPORT
 

Petitioner asserts that the monthly “gratuity” he receives for his prison work assignment is 

less than the minimum child support payment and is not considered income under the applicable 

statute. Petitioner argues that under Adkins, supra, his pre-incarceration income from employment 

earnings cannot be attributed as income for child support purposes while he is incarcerated. 

Petitioner notes that the respondent mother has been able to claim the dependent child exemption 

on her income tax returns. Petitioner states that for 2010, that exemption was $3,650. Petitioner 

asserts that $3,650 easily exceeds his total earnings since 2009. Petitioner further asserts the fact 

that there is a child support obligation he cannot meet exposes him to the termination of his 

parental rights. In response, the BCSE argues that termination of parental rights is not a direct 

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consequence of a failure to pay child support. The BCSE argues that this Court recognized in 

Adkins that the legislature intended child support obligations to continue even when a parent is 

incarcerated. The BCSE also informs that petitioner has been making almost monthly payments 

since 2009. While it is not the full amount petitioner owes, the BCSE states that it has received 

payments of $18.36 per month from prison officials. Therefore, after careful consideration of the 

parties’ arguments, this Court concludes that the family court did not abuse its discretion in 

denying petitioner’s petition for modification of child support. 

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

County. The September 19, 2011 order of the Circuit Court of Kanawha County refusing 

petitioner’s appeal of the family court’s July 29, 2011 order denying his petition for modification 

of child support because support had already been set at the statutory minimum, and finding that 

there were no issues requiring the appointment of a Guardian ad litem, is affirmed. 

Affirmed. 

ISSUED: February 22, 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 

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