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IN THE FAMILY COURT OF PUTNAM COUNTY, WEST VillGINIA
In Re The Marriage Of: 10\3 JAN 23 M' 8~ 50 DOLORES JEAN
HALBURN, Petitioner
Rnd
MARK VANCE HALBURN, Respondent.
Civil Action No. ll-D-516 Judge Mike Kelly
FINAL DIVORCE ORDER
On October 1 and 15, 2012} came the Petitioner and her counsel,
Henry R. Glass, and the
Responde~t and his counsel, Michael S. Bailey, for trial upon
the verified Petition for Divorce, the Response to Petition for
Divorce, and Notices of Hearing, all duly and timely filed and
served. Whereupon, the Court received the testimony of the
parties and their respective
witnesses, and the exhibits and other evidence of each
party,
Based on all of the evidence, the pleadings, motions, and
disclosures, and all other
matters of record, and after an assessment of credibility, the
Court hel'eby makes the following
FINDINGS OF FACT and CONCLUSIONS OF LAW:
I. JURISDICTIONAL FACTS
1. At the time of the filing of the Petition in this action, the
Petitioner and
Respondent were, and for mote than one year next preceding the
date of the institution of this
action had been, citizens and residents of Putnam County, West
Virginia.
2. The Petitioner and Respondent were duly and legally married
in Putnam COUllty,
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West Virginia, on August 29, 1998.
3. The Petition was filed in this action in November 2011. The
Respondent
continued to live in the residence owned by Petitioner and her
mother situate in Putnam County,
West Virgi.nia, until March 2012, at which time he vacated the
residence and the parties
separated. which separation has been continuous and
intel'l'upted.
4. There was one (1) minor child born to the marriage,
Halbum. born August 29,2007.
5. Neither the Petitioner nor the Respondent is incompetent, an
incarcerated convict,
or a member of the armed forces of the United States of America
or any of its allied nations.
6. I Il1'econcilable differences have arisen between the
parties, within the meaning of
Chapter 48. Article 5, Section 201> of the West Virginia
Code, 1931, as amended, as alleged and
testified to by the parties, and a divorce should be granted on
such grounds. Given this
agreement, the COUlt took only limited evidence from Ms. Halburn
that other reasons she sought
the divorce included the various arrests of her husband, the
constant turmoil he created at home
and in public, the pornography on his computer, their lack of
sexual relations for at least four
years. and his obsession with his website.
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II. CfllLD SUPPORT
7. The Respondent is presently employed as a substitute teacher,
though he is seldom
offered wOlk, and, additionally, eams income through his intemet
website, PutnarnLive. For
purposes of calculating child support, he admits to a gross
monthly income of $3,250,00.
8. The Petitioner is presently employed by and has a gross
monthly income
9. The portion of health, dental and vision insurance paid by
Petitioner to insure the
minor child is $147.20 pel' month. The Petitioner also incurs
child care expense at
Preschool and Daycare of $50 per week when school is in session,
$30 per day during non-school
holidays, and $135 per week during the non~school summer recess,
resulting in an annual
expenditure of approximately $4,000 or an average of$333.33 per
month.
10. Pursuant to the attached income shares child support
formula, the Respondent
shall pay child SUpp0l1 in the amount of $613.37 per month for
the SUppOlt, maintenance and
education of the minor child commencing Febl'uary 1, 2013 and
continuing each month thereafter
until the fbrthel' order of the Court. and so long as the child
remains unman'ied, unemancipated,
and so long as the child is enrolled as a full-time student in a
secondary school or vocational
school and is making substantial progress towards a degree;
provided, that such payments may
not extend past the date that the child reaches the age of
twenty, The child support payments are
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to be reduced or terminated only in accordance with the West
Virginia Code sections, 48-11-101,
et seq ..
1 L Pursuant to W.Va. Code 48-14-401, income withholding shall
begin
immediately. All payments shall be made to the Bureau for Child
Support Enforcement, Post
Office Box 247, Charleston, West Virginia 25321.
12. The Petitioner shall continue to provide medical health,
dental, optical, and
pharmaceutical insurance for the minor child of the parties for
so long as it available through her
employment.
13. Any medical, health, dental, optical, or pharmaceutical
expense that is not covered
by insuHUlce shall be paid by the pru.1ies with Petitioner
paying 45% and Respondent paying
55%. The party incurring uninsured medical, dental or
ophthamological costs shall submit proof
of the same within 90 days ofincuning the expense. The other
party shall pay his/her share
within 30 days. If a pru."ty fails or refuses to pay his/her
share withollt a lawful reason 01' good
faith excuse. he/she may be held in contempt of court. Please
refer to the attached Rules for
Childl"en's Medical Expenses.
14. Pursuant to W.Va. Code 48-13-801 the Petitioner is allocated
the right to claim
the dependent child for income tax purposes commencing for Tax
Year 2012 and continuing
until fulthel' order of the COUli.
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15. Dolores Halburn is the designated custodian of the minor
child of the parties
pursuant to W.Va. Code 48-9-602. This designation shall not
affect either parent's right and
responsibilities as otherwise set forth in this Order.
III. ALLOCATION OF CUSTODIAL RESPONSIBILITY
16. The primaty dispute in this case is the allocation of
custodial responsibility for the
parties' child, who is five years of age.
17. Based on the evidence presented as set forth inft'a, the
COUlt hereby allocates to
Mark Halbtlfn evelY other Saturday and Sunday commencing at 9:00
a.m. and ending a.t 8:00
p.m. each day beginning Februaty 2,2013. At all other times,
except as specifically set forth
herein. the child shall remain in the care and control of
Dolores Halburn. There being good
cause for doing so, the current prohibition on Mr. Halburn
removing the child from the State of
West Virginia shall remain in full force and effect..
A. The Forensic Psychological Evaluation
18 Pursuant to the motion of Mr. Halburn, the Court during the
course of the
proceedil1gs entered an Order requiring each palty to submit to
a psychiatric evaluation as an aid
to the Comt in determining the appropriate allocation of
custodiall'esponsibility. When Ms.
Halburn objected to the cost of the health care provider
selected by the COUlt, each party was
allowed to obtain an evaluation by a provider of their choice
and at their own expense. Mr.
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Halburn complied. Ms. Halbum did not. Due to heL' failure to
adhere to the Order of the Court,
Ms. Halburn is assessed a civil penalty in the amount of$lOO
payable to the Putnam County
Parent Education Fund on or before April!, 2013.
19. Mr. Halburn was evahlated by Clifton R. Hudson, Ph.D . a
licensed psychologist
with Hudson ForensIc Psychology who was chosen and paid for by
Mr. HalbulU. Dr. Hudson
found, in pertinent part, as follows:
(a) Mr. Halburn reported having a "turbulent" childhood with a
mother who "had a
lot of mental problems growing up". Both parents had difficulty
controlling their tempers. The
mother "attempted to kill herself 6 01' 7 times." His patemal
grandmother "was in and out of
psychiatric facilities" and his paternal grandfather was
"abusive and alcoholic." He reported that
his one sibling, a sister, has had problems with ('meth and
other things." I
(b) Mr. Halburn also repOlted several alTests, all of which he
attlibuted to "srnall~
town retaliation against reporters." The arrests include a
guilty verdict on a charge of trespassing
in 2009.
(c) Dr. Hudson found that Mr. Halburn " ... tends to present
himself in a consistently
favorable light, and as being relatively free of cOmmon
shortcomings ... " This tendency leads
. him to "minimize, 01' perhaps even be unaware of, problems or
other areas where functioning
might be less than optimal." While Mr. Halbulll denied problems
with alcohol Or drugs) Dr.
Hudson warned that" ... attention should be paid to the
possibility of denial of problems with
drinking or drug use as Mr. Halburn described certain
personality characteristics that are often
associated with involvement with alcohol or drugs."
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Cd) Dr. Hudson found that Mr. Halburn Ct sees little need for
changes in his
behaviol'."
(0) Most importantly, while noting that Mr. Halbm'n likely poses
no direct threat of
physical harm to Dr. Hudson was concerned that Mr. Halburn's
continued
intelperso~al conflicts present an increased risk ofhal'm to the
child. Specifically, Dr. Hudson
cautioned as follows:
Mr. Halburn's clinical interview was most significant for an
apparent pattern of conflictual interpersonal relationships. While
Ml.'. Halburn frames these in terms of his tenacity in standing up
for his own tights and those of his family, it appears that he has
a persistent tendency to allow his emotions to dictate certain
aspects of his behavior, resulting in circumstances
counterproductive to his own stated goals. He appears lacking in
awareness of his own contribution to these conflicts, instead
focusing on his perceptions of the inappropriate behavior of others
and his expectations that others should t1'eat him fairly even
after he has angered them.
It appears likely that Mr. Halburn will continue to generate
interpersonal conflict and that his son will ultimately have some
degl:ee of exposure to that conflict. However, this examiner is
aware of no credible allegations that Mr. Halbmn has ever become
violent with anyone or that he has ever mistreated his son. His
past behavior in this respect is the most valid indicator offuture
behavior. While the cW'l'ently opined personality disorder is
jndeed a lisk factor fol' violent behavior, it is just one of many
and does not by any means correlate precisely with violence risk.
Mr. Halburn's histOlY of having been physically abused as a child
and his cui'l'ent level of life stress would also constitute risk
factors for violence .. . . There is some evidence of a positive
bond between Mr. Halburn and that should be construed as
constituting a protective factol' against future child
maltreatment.
(f) Dr. Hudson made provisional diagnoses of:
Axis I: Axis II: Axis III: Axis IV:
Axis V:
Adjustment Disorder with Depressed Mood Personality Disorder NOS
Non-insulin-dependel1t diabetes mellitus, obesity (per self-report)
Health concerns, ongoing family COUlt case, partial estrangement
from Son GAP = 65 (as of initial evaluation)
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(g) Dr. Hudson also made the following recommendations:
1. Mr. Halbum might benefit from individual psychotherapy
focused tlpon mood, interpersonal relationships, affective
regulation, and awareness of the consequences of his behavior for
his own life.
2. Psychiatric consultation is not clearly indicated at this
time, though trials ofSSRI antidepressants or mood stabilizers
could potentially prove useful in assisting with mood regulation at
times of heightened stress.
20. In his report, Dr. Hudson made reference to a "Forensic
Psychiatric Evaluation" of
Mr. Halbum done by Dr. Daniel B. Thisclewaite, M.D., in 2008 in
connection with litigation
between Mr. Halbul'n and Wal-Mart Dr. Thistlewaite found as
follows:
IMPRESSION:
Axis I: Malingering. Significant symptom exaggeration was noted
on psychological instruments designed to assess for exaggeration of
cognitive deficits.
Axis II: Personality disorder. not otherwise specified, with
narcissistic and paranoid traits.
Axis ill:
Axis IV:
Axix V:
Hypertension; Diabetes Mellitus; Sleep Apnea.
Psychosocial Stressors - Litigation
Current GAF - estimated at 60 to 65 with chronic impairment due
to personality disorder.
DISCUSSION: There is no evidence that Mark Halburn suffers from
a psychiatric illness as a result of any stress created by
construction of a shopping center which is jn the proximity of his
home. Mr. Halburn has been distressed, upset, and angered by what
he perceives as improper due process and believes that he is the
target of the authorities. All of this is the result of a severe
personality disorder which predates any of the alleged
strcsSOrS.
It should be noted that Mr. Halburn's psychological profile and
behavior would
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suggest that he has propensity for aggressive behavior, No
history of overt violence is found; however, given his degree of
agitation and volatility noted during our examination, any threats
made by Mr. Halburn should be taken seriously and dealt with
appropriately.
21. Dr, Hudson, the psychologist) noted his disagreement with
Dr. Thistlewaite. the psychiatrist, in celtain respects:
Based on an observed pattern of chaotic interpersonal
relationships and affective dysregulation, D1'. Thistlewaite opined
the presence of personality disorder not otherwise specified, with
narcissistic and paranoid personality traits.
Dr. Thistlewaite's report arguably somewhat unfahly labels Mr.
Halbum as a malingerer, as the results of two cognitive malingering
tests were inconsistent and Mr. Halburn did not perform
particularly poorly on an abbreviated IQ test 01' a brief measure
of executive functioning. Dr. Thistlewaite) s assessment of Mr.
Halburn's violence risk as being significant is also questionable.
While it is tme that personality disorder characteristics such as
those that Dr. Thistlewaite observed in Mr. Halburn constitute a
risk factor for violence, this would be but 011e of many such risk
factors and in isolation should not be construed as significantly
elevating violence risk in an individual without a known histOlY of
significant violence. This examiner notes that it would be
reasonable to weight Mr. Halburn' s personality issues more heavily
if a known history of significant violence had been
substantiated.
B. Testimony of Dolores Halhllrn
22. In her argument in SUppOlt ofl'estrictions on Mr. Halburn's
parenting time, Ms.
Halburn cites the same pe~sonality disorder characteristic noted
by the two mental health experts:
her husband's inability to control his impulse to generate
interpersonal conflict. She is concerned
not that he will directly harm but that he will cteate conflict
with third parties which might scare or alarm 01' traumatize or
place the young child in reasonable apprehension
of bodily harm caused by others or, if Mr. Halbtlm is arrested
yet again. might result in the child
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being placed in the temporary care of unknown private or public
third p3.l1ies until Ms. Halburn
can retrieve him. She has palticular concerns about Mr. Halburn
being anested out of state while
is in his care, leaving the child at the mercy of unknown third
parties for an extended
period of time.
23. As proof of her reasonable COncern for safety while alone
with his
father. Ms. Halburn cites a 2008 incident in the Atlanta airport
in which her husband became ,
enraged at !a clerk and they were escorted out of the aitport by
uniformed security. She testified
credibly that Ml'. Halburn was so out of control that she feared
they would be arrested. She
worries that if a similar incident happens when is alone with
his father out of state that
the child may be placed in emergency foster care until she could
get to him. As predicted by the
mental health experts, Mr. Halburn denied the gravity ofthe
airpolt incident and blamed it on the
clerk. The Court finds Ms. Halburn's version of events to be
much more credible than the
father's and credits it as true.
24. Ms. Halbum's case for restrictions also relies on her
husband's numerous arrests,
two anecdotal incidents at hotels, his sustained harassment of
private individuals and companies
as well as various public officials and entities, and her claim
that their application to be foster
parents was denied because of his behavior. She 8l'gues that his
volatile, uncontrollable and
unpl"edictable rages Ulmecessarily increases the risk of harm
to
25. :Mr. Halbum's arrests follow the pattern clearly seen by the
mental health
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professionals: he generates needless conflict and then
overreacts when his bullying tactics are
resisted. In January 2007 he was arrested for making harassing,
obscene and threatening phone
calls. In August 2008 he was a1'l'ested for trespassing and
assault. In August 2009 he was al1'ested
for trespassing. In October 2012, at the conclusion of the frrst
day of trial in this case, he was
arrested for' making harassing phone calls. The fact that he was
later convicted on only one of the
charges is immaterial (the trial on the last charge is still
pending). It is the arrest itself which
could result in psychological andlor physical harm to the child.
Moreover, there is no reason to I
believe that this pattern will cbange since, as Dr. Hudson, his
own witness, noted Mr.
Halburn"".sees little need for changes in his behavior."
26. Ms. HaLburn also testified credibly that the father has used
his Wednesday
overnight only sparingly since it was awarded him and that he
frequently returns the child in the
evening during his scheduled weekend overnights. In fact, he
retuI'ned on both the
Friday and Satul'day evenings immediately prior to the last
trial date.
C. The Testimony of Dr. Hudson
27. In his testimony at trial, Dr. Hudson, Mr. Halburn's expert
witness, affirmed his
written finding iliat Mr. Halburn's personality disorder and the
interpersonal conflict that it
generates show a pattern that clearly establishes the
probability that he'll continue to have more
confl'On~tions, especially given his lack of awareness as to his
own contribution to the conflict.
Dr. Hudson testified that Mr. Halbum allows his emotions to
dictate his behavior reg:udless of
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the circumstances or the consequences.
28. When asked if, given his assessment and the very young age
of the child, it would
be pI'udent to lift the temporary restriction on Mr. Halburn
traveling alone with the child out of
state, Dr. Hudson, Mr. Halburn's own witness, testified
that:
I find that to be a relatively difficult question ... I do
believe that additional conflicts are likely to occur. I do believe
that certainly if one is having those types of conflicts one is at
somewhat elevated l'isk ... one could run in to someone who
responds to that type of risk violently even if Mr. Halburn is not
initiating violence ... r have to say there is some level of
additional risk for a child in that situation. I would not assess
that to be neccssarHy very high, but the child is likely to be
exposed to some argument here and there. I don't think it's likely
that the child will be put in harm's way as a result of that but I
can;t rule out that possibility.
D. Mr. Halbum's Personality Disorder and This Litigation
29. During the course of this case, Ml', Halhum's personality
disorder, as diagnosed
by two mental health expelts, not only surfaced, but it became
even more bizan'e, irrational and
divorced from reality as the case pl'ogressed, leading the Court
to conclude that the dsk that Mr.
Halbum will become violent is closer to the opinion of Dr,
Thistlewaite than to that of Dr.
Hudson.
30. Mr. Halburn's mental unraveling in this case began with the
entry of an
uncontested temporary order on January 27,2012, that included
the sentence "Respondent shall
not remove said child from the State of West Virginia without
the express written permission of
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Petitioner or this COU11."
31. The restriction was made part ofthe order as a result of Dr.
Thistlewaite's finding
that Mr. Halbum has serious mental health issues that include a
personality disorder (not
otherwise specified) with naroissistic and paranoid traits and
chronic impailment due to
personality disorder. There was also a proffer; later proved to
be true, that Mr. Halburn had been
involved in a confrontation at an ail'polt that nearly resulted
in the family being taken into
custody and that the risk of such further conduct while he was
traveling alone with the child was
high. The Court did not make any fmdings at the temporary
hearing regarding Mr. Halburn's
mental fitness; deferring that issue for J'esolution at trial,
then scheduled for May 2,2012. When
the temporary order was presented for ently, Mr. Halburn did not
object to the "out of state"
restriction.
32. On Aprilll, Mr. Halburn, who moved to South Carolina after
the tomporary order was entered, emailed his wife:
Every day I see wonderful things here that would enjoy. Today, I
was interviewing near the water park that he loves. It opened last
month. Putnam County DOES NOT HA VB A WATER PARK and the idiots
that run the place won't open the pools until Memorial Day and
deserves better than what West Virginia has to offer.
33. That same day, Mr. Halburn filed a motion to modify the
temporary order to allow
him to transport his son out of state for the period of April
12-17, 2012 (NB: the motion was
filed one day before the anticipated trip). The motion was
promptly scheduled for a
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teleconference on April 13, 2012, two days after filing. Again,
Ms. Halburn raised serious
questions as to her husband's mental fitness. The COUlt deferred
a ruling on that issue until the
final hearing, then only nineteen days away. The Court
specifically found that it would be unfair
to bOTh sides to try such an important issue by teleconference.
This was the beginning of Mr.
Halbtlrn becoming unhinged.
34. On April 16, Mr. Halburn's then attorney filed a motion to
be relieved as his
counsel.
35. The next day, Mr. Halbum, acting pro se, filed a "Motion for
Recusal, Reversal of
TempOl'ary Order, Impeachment and Sanctions." In his motion, Mr.
Halburn made the following
accusations:
(a) The refusal to vacate the restriction for nineteen days
"violated (the child's] right
to have the presence of his father in his life on a daily
basis";
(b) The ruling caused the child to suffer "probably permanent
psychological harm";
(c) The Order was "improper" and "insane";
(d) The Court "is an arrogant power thug and is out of
control";
(e) The Court ''must be stopped;
(f) The COUlt "must be ordered immediately pay for a beach trip"
(sic) for the child;
(g) The Ordei- 'Ishould be immediately reversed upon receipt of
this email";
(h) The Court "must be recused from this case and impeached from
the bench"; and
(i) Ms. Halbutn's attorney should "be sanctioned and disbarred
from practicing law
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in West Virginia".
36. On Apl'il18, the Clerk of the Supreme Court of Appeals
warned Mr. Halburn for
the first time that " . . . it is improper for you to further
contact me via ewmaillegal'ding this
matter. In addition, it is improper for you to contact the Chief
Justice or any other member ofthe
SUpl'eme Court at any time about this matter."
37. On April 19, the motion to recuse was denied by the Chief
Justice.
38. Also on April 19, with trial only thirteen days away,
counsel' s motion to withdraw ,.
was heard by teleconference. During the hearing, Mr. Halbum lost
all control:
(a) "The Judge in this case is an idiot";
(b) "The Judge should be imprisoned and impeached";
(c) "The Judge should walk away and find another line of work
and I can email him
an application for McDonald's ... but I wouldn't wish that on
McDonald's":
(d) Ms. Halburn' s lawyer is Ii "documented liar"; and
(e) Ms. Halburn's lawyer is "a lying sack of crap",
39. Counsel 's motion to withdl'aw was granted,
40. On April 25. Mr. Halburn requested a ninety day continuance,
His motion was
granted and the proceedings \vere continued until August 8,
2012, a date selected with his
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approval. The restriction on out of state travel with was,
therefore, extended due to his
own request to continue the case fOl' ninety days.
41. Also on April 25, Mr. Halbum filed a "Motion to vacate
temporary order,
impeach Judge Michael 1. Kelly, and order sanctions against
Henry Glass." In this filing, Mr. I
Halburn: '
(a) Refers to the Court as "Kangaroo Court Judge Michael Jackass
Kelly";
(b) Claims the travell'estrictions "arbitrarily and capriciously
[depdve] of a
full-time father";
(c) Calls Mr. Glass, Ms. Halburn's attorney, "bizarre,
anti-social and malicious.
Glass should be disbal1'ed and sanctioned for his false
allegations";
(d) Demands the temporary order 'must be IMMEDLA TEL Y be
vacated upon receipt
of this motion" (SiC);
(e) Suggests " ... the court could order the State of West
Virginia to build a zoo, near
Charleston by 5:00 pm EDT, April 22, 2012 and to move the
Atlantic Ocean to the State of West
Virginia";
(f) Urges the Court to sanction Ms. Halburn's counsel "the sum
of $1 0 million to be
paid inunediately";
(g) Conunands that Ms. Halburn's counsel and the COUlt
personally fund a week
long beach trip for [the child] upon receipt of this motion" and
"must also fund the travel of [the
child's] classmates and teachers to the beach . . . ";
(h) Enjoins the COUlt to "order [Ms. Halbum] to provide Mark
Halburn with a
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cashier's check for $50,000 by noon, Apri125, 2012";
(i) Labels the temporary order "wacky "insane" and
"onerous";
G) Directs that the Supreme Court "MUST order [the judge] OFF
this case, OFF
THE BENCH PERMANENTLY and order [the judge] to pay for a spring
break trip for [the
child's] ENTIRE preftschool , , . to preserve the safety of
these students, [the judge] must be
BANNED from having ANY contact with them on their trip";
(k) States that ( In fact, there no such person as a 'Ms.
Halburn' (sic)";
(1) , Wishes that "(the judge] should be permanently committed
to Mildred Mitchell-
Bateman Hospital until he does society and favor and passes
(sic)"; and
(m) Refers to the Court as a "wacky judge", who is incompetent
for failing to require
his wife to pay him a "$50,000 settlement" when he left the
home.
42. In numerous other filings Mr. Halburn has stated that the
Court:
(a) "Writes checks that his brain cannot cash";
(b) "Is a menace to society that should be imprisoned "; and
(c) "[is] the poster child for a lifetime admittance to Mildred
Mitchell-Bateman".
43. Additionally, in numerous telephone calls to the Court, Mr.
Halburn:
(a) Demanded a hearing by 8A5 a.m, that morning;
(b) Became abusive and hostile with the COUlt staff;
(c) Accused the COUlt's staff of being "rude";
(d) Demanded that the Court "resign and save the state some
money";
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( e) Demanded that the staff get the Court on the phone
inunediately;
(f) Demanded that the Court "take care of my shit now"; and
(g) Called the Court staff an "idiot".
44. After the COUlt instructed the staff to no longer take Mr.
Halburn's phone calls, he
sent an email to the staff stating that "your failure to return
calls is unprofessional."
45. On Apl'il27, Mr. Halburn submitted the follOWing fraudulent
letter to the Clerk of
the Supreme Court in which he impersonates a judicial official.
The lotter is replinted in its
enth'ety: .
April 27, 2012 Mr. Rol'Y Perry WV Supreme COUl't Clerk
Charleston. WV
I Michael J. Kelly have violated the rights of Halburn and Mark
Halburn. I allowed Hemy Glass to repeatedly lied in cO\ut. I
refused to allow Mark Halbu1'n to correct Glass's lies and
improperly threatened to thl'OW Mark Halburn out of a confel'ence
call hearing. I have repeatedly refused to correct my improper
temporary order. I violated Halburn's right to a Spring Break
vacation in Myrtle Beach. I am an embarrassment to the legal
profession.
Therefore, I immediately vacate my tempOl'(ll), order. I award
Mark Halburn the marital horne and full custody of Halburn
immediately.
I then resign my position as Kanawha County Family COUltjudge
due to my incompetency and a11'ogance. I agree to move to another
state and never practice law or hold public office again.
Sincerely,
Michael J. Kelly
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Not only is the above entirely fabricated, but it is in direct
defiance of the clerk's previous
directive to not communicate with him about a case that is not
pwpcrly before that COUl't.
46. On May 11, the Court entered an Order prohibiting Mr.
Halburn "from having any
contact with the Court or its staff by telephone, enlail,
letter, or otherwise. All filings and other
communications from him shall be in writing and filed with the
Clerk and not directly to this
Cotlrt." That Order also placed him on notice that future
conduct of a contumacious, vexatious,
or oppressive nature may result in contempt proceeding against
him.
47. On May 14, Mr. Halburn made numerous accusations against his
wife and
demanded that the COUlt "pelmanently l'emove all parenting
rights to Halburn from
Dolores Halbum." He also wanted the COUlt to order that:
(a) Ms. Halbum pay him "lifetime spousal support of $3,000 per
month";
(b) Ms. Halbulll pay him the standard child SUppOl't until earns
his Master's
Degt'ee;
(c) Ms. Halburn purchase a home fol' him in Salisbury, North
Carolina;
(d) Ms. Halbum pay his "health insurance for the remainder of
[his] life" and for
"through his collegiate career, and provide fol' daycare,
private school
tuition through high school, and all college and/or lmiversity
tuition, books, dorm fees, et al." :
(e) Ms, Halhurn forfeit to hitn "SO percent of any pension Or
social security benefits
paid to Dolores both during her lifetime and after her
death";
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(f) Ms, Halburn relinquish any and all rights to his assets;
(g) Mr. Glass be enjoined fmm harassing Ml'. Halburn;
(h) Mr. Glass be immediately disbarred and sanctioned; and
(i) Mt'. Glass "pay Mark Halburn $10 million for defamation of
character and $100
million for intentional infliction of emotional distress".
48, Also on May 14 the Clerk of the Supreme Court warned Mr.
Halburn for the
second time to refrain from contacting that COlllt.
49! On May 23 Mr. Halbum filed a "Rite of Prohibition" (sic)
charging that the Court:
(a) n, . . is letting (h]is hot-air balloon sized ego ovenule
his pin-sized brain";
(b) ", , . ignores reality";
(c) " , .. is anti-children, anti-fathers and anti-reality";
(d) ", , ,has refused to recuse his sony selffroln this case and
has refused to step
down from the bench as he is incompetent and an embal1'aSSment
to the legal profession"; and
(e) Must be \Ipermanently removed from the case and heavily
financially sanctioned,"
50, On May 31, his petition for a writ of prohibition was
denied.
51. On June 4. Ml'. Halburn filed an "appeal" of the denial of
the writ of prohibition,
stating that the order:
(a) " .. . ignores reality . . ,";
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(b) " ... is a travesty ... ";
(0) " ... is a transparent case of a retired judge abusing his
authority by blatantly
covering for an incompetent judge"; and
(d) "Cummings, Glass and Kelly are not worthy of practicing
law", ", .. must be
imprisoned for gross incompetency with damages paid to Mark
Halburn of $10 million EACH
immediately upon receipt oftrus appeal", and "All three must be
banned fJ.'Om practicing law for
life in an 50 United States, Puelto Rico, Guam and Washington,
D.C.". (Emphasis in original).
52. On May 29 Mr. Halbum filed an emergency motion stating that
his mother had
been placed in intensive care in a hospital in Califomia. He
requested that Ms. Halburn be
ordered to transport the child to California to see the
gl'andmothel'. He further demanded that co
. the COUlt order Dolores to pay for this trip and to submit to
a full psychiatric exam upon her
retulTI,"
53. However, the day prior to filing his emergency motion, Mr.
Halburn emailed his
wife that "My mom is too far gone f01" to visit her now. She is
incoherent and might
scare Unless something changes we have missed the wonderful
0ppOltunity for
to see his grandmother and for her to enj oy him."
54. Despite Mr. Halburn'$ own email contl.adicting his motion,
on or about June 4 the
Court conducted a teleconference regarding the emergency motion
and Mr. Halburn was directed
to do two things: (a) submit evidence, such as a statement from
a health care pl'Ovider, that his
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mother still had the ability to appreciate a visit from her four
year old grandson; and (b) submit a
budget for the trip detailing the costs and means of paying for
the same.
55. On July 5, when Mr. Halbul'll still had not submitted either
of the required
documents, his motion was denied. While Mr. Halburn now claims
that he did submit a budget
to the Circuit Clerk of Putnam County he has not produced a
"filed" copy and the COl1l't has not
seen one.
56. Though Mr. Halburn did not produce the documents requested
regarding the
proposed visit to the grandmother. he did manage to pen a five
page "Emergency Motion ~ i
Father's Day" which he sent directly to the Chief Justice on
June 13 in complete defiance of the
two warnings previously issued by the Clel'k ofthe Supreme COUlt
Court. In this motion he asks I
that the Chief Justice:
(a) " ... sanction Glass for his many false allegations, remove
lun from this case,
disbar Glass, imprison him for life and sanction him $10 million
per false allegation . . . ";
(b) Require Glass "to take out, and pay for, full page
adveltisernents in the Charleston
Gazette, Charleston Daily Mail, West Virginia Record and on
Putnamlive.com to apologize for
his numerous outrageously false allegations";
(c) ('Glass should be ordered to fund a Father's Rights group
... ";
(d) "Glass should be ordered to undergo a full psychiatric
examination;
( e) " ... Kelly must be imprisoned and Mark and Halburn be
allowed to
spend Father's Day togethee';
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Cf) "Your petitioner now requests that a hearing be set for June
15,2012, at 8:00 p.m.
that vacates Judge Kelly's temporary orders, removes him from
the case and permanently
removes him from the bench. Kelly must also be heavily
financially sanctioned [and] he
imprisoned for the remainder of his natural life in the
Moundsville prison starting at 5:00 p.m.
EDT, June 15.2012" [NB: the imprisonment is to occur three hours
before the hearing];
(g) " ... appoint him[Mr, Halburn] legal counciP) (sic) at the
taxpayer)s expense to
represent him "in the divorce case and any other issues stemming
from such case)'~
(hY Modify the "Judicial Commission" so that it consists of a
"majority of non-lawyers ... headed by Mark Halbum" and which shall
vacate the decisions in this case and
instead order "Kelly's removal fl.-om said case, and his
l"emoval from the bench and permanent
disbarment for gross misconduct. Kelly shall also be imprisoned
and ordered to undergo a
complete mental evaluation, Any salaries paid to Kelly during
his tenUt'e as a family court judge
and magistrate shall be renu'ned to the State of West Virginia
to be used to create a Father's
Right's commission";
(i) Unilaterally change the election laws so that "All court
judges and justices shall
serve terms of only two years and be subject to a recall vote,
This term litnit shall be expanded
to include all elected officials in West Virginia, The ability
to recall shall be extended to all bureaUC1'ats as well as all
elected officials in West Vu-ginia"; and
G) "Judge Cummings' order dismissirig Mark Halburn's Writ of
Prohibition against
Judge Kelly shall be reversed tlpOn receipt oftrus motion with
Cummings' permanently disbatred
for blatantly covering the ass of incompetent Judge Michael
Kelly. AU fees paid to Cummings
for his travesty order shall be returned to the State of West
Virginia and issued to above-
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referenced Father's Rights Commission."
57. On June 15, Mr. Halburn sent the Supreme Court clerk and the
Chief Justice the
following email:
Chief Justice Ketchum:
Per our discussion earlier tonight, attached is the pleading to
remove Judge Kelly from the bench and to allow me to spend Father's
Day Weekend with my son. I look forward to Kelly's immediately
[SiC] imprisonment so that I can publish his mugshot and let
father's know that their families are now safe.
58. On June 15 and 16, Mr. Halburn sent the Chief Justice the
following text
messages:
(a) "Kelly has not responded to my emergency motion to allow me
visitation for
Fathers Day. I am calling on you to imprison judge Kelly"~
and
(b) "What's being done about my motion?"
59. On June 18, after Mr. Halbl.lm'S repeated violations ofthe
pl'Ohibition against
frivolous and ex parte communications, the Chief Justice entered
the following Order:
ADMINISTRATIVE ORnER
SUPREME COURT OF APPEALS OF WEST VIRGINIA
RE: VEXATIOUS AND FRIVOLOUS CONTCTS WITH COURT OFFICIALS BY MARK
V. HALBURN
Mark V. Halburn is party to an ongoing action pending in the
Family Court of Putnam County (Putnam County Civil Action No.
11-D-516); and
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Mark V. Halburn has recently contacted the Chief Justice via
personal telephone calls, e-mails, and text messages seeking, among
other thingsj that the Chief Justice "imprison" the
presidingjudge(s) in his pending family court action
... '" ...
Mark V. Halbum's communications are vexatious and frivolous;
All litigants in the courts of this State - including Mr.
Halburn - must co~ply with the appropriate COUlt rules, none of
which permit litigants to contact court officials via personal
telephone calls. e-mails, or text messages; and
IT IS HEREBY ORDERED, that any future telephone calls, e-mails,
e-mail attachments 01' text messages from Mark Halburn to court
officials in this State may be disregarded; and
IT IS HEREBY ORDERED, that Mark V. Halburn ~ like all other
litigants in this State - is required to comply with the
appropriate COUlt rules with regard to pleading, practice and
procedure, which require that all filings be submitted hI wl"iting
to the appropriate court clerk's office in which Mr. Halbum has a
pending case; and .
IT IS HEREBY ORDREb, that any further communications from Mark
V. Halbum to court officials 01' employees of the COUrt system that
are vexatious, frivolous, or do not comply with the terms of this
order will be referred to the appropriate authorities for possible
criminal prosecution.
60. In a "Motion for Recusa!, Reversal of Temp0rlHY Order and
Sanctions" filed on
September 21, Mr. Halburn continued his irrational
diatribes:
(a) The Court violated the child's "right to have the presence
of his father in his life
on a daily basis, thereby causing probably permanent
psychologlcal harm";
(b) The Court has exceeded "the bounds of common decency and
common sense";
(c) The COUlt "has permanently scatted the reputation of
fairness and irnpaltiality of
-
the West Virginia judiciary";
Cd) In perhaps his most outrageous invective, Ml'. Halburn
writes that "Judge Kelly
sat back and allowed :Mrs. Halburn to die without seeing her
grandson, in 2012. He should be
ordered to revive her and pay for hip to Califomia to see her at
Kelly's personal
expense." (Emphasis added); and
C e) Mr. Halburn demands to be allowed "to return to the marital
home immediatelY"
or "be provided the settlement funds of $60,000 upon receipt of
this motion".
61. Mr. Halburn's demand that the Court be ordered to revive his
deceased mother
establishes beyond cavil that Mr. Halburn's personality disorder
cannot be controlled and that it
presents a real, elevated and incl'easing risk to safety and
well-being as his grip on
reality deteriorate.
62. On September 29, in direct defiance of the Supreme Court's
Administrative Order,
Mr. Halburn sent the following email to the Administrative
Director of the Supreme COtllt in
which he admits to hearing "voices":
Subject: Potential threat
While taking photos of today' s Poca Heritage Days event, a male
voice came up behind me and said something to the effect of, "If
you need someone to take care of Watkins or Kelly for you, just let
us know ... " I don't know if that means cooking them homemade
cheesecake or a threat of violence. When I turned around, all I saw
was numerous people of both genders milling around. I asked, "Did
someone just talk to me?" and only received blank stares ... I
never saw the person, and do not recognize the voice. I am deaf in
my right ear with a constant ringing noise (because of past
infection) and have a tough time distinguishing
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which side of me sounds are corning from because of "the bounce"
effect. While I have a hearing aid device I do not weal' it around
crowds because it makes all of the noise rather irritating.
Rest assured I WILL NOT be publishing this as I do not want to
encourage any nuts out there to do anything illegal 01'
harmful-even to judges that I do not like. I am not filing a police
report because it can be acquired through FOIA. You are the ONLY
person I am revealing this to for obvious reasons.
Similarly, I do not publish the phone numbers and addresses of
elected officials, candidates, and law enforcement officers-even
when such information is part of election filing documents and
public records. I will not make it easy for ANYONE to harm
anyonel
If you want to call me to discuss this further, feel free. I
will AL WAYS try to do the right thing. However, there really isn't
anything more to say. I just wanted you to be aware of the
situation. It happened rIght after the parade When I was walking
north on Route 62 towards the school parking lots.
Obviously I will NEVER ask anyone to "take care" of anybody in
any sort of harmful and illegal way.
63. Also in September 2012, while attending the mandatory parent
education class
required of all divorcing parents, Mr. Halbul'Jl became irrate
at the content of the video that is palt
of the curri~ulum. He demanded the right to address the class
and told the class instructor that
she was "o~t of line" for not permitting him to speak. The
instructor left the class to find a deputy and Mr. Halburn was soon
escOlied from the premises.
64. Subsequent to trial, counsel submitted their recommended
findings offact and
conclusions of law. In addition to his CO'\.lnsel's submission,
Mr. Halburn filed his own pro se. In
it, he states:
(a) "Because petitioner, Dolores, admitted in COUlt, that she
conceived years
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after she knew the marriage was over, she must pay respondent
[Mr. Halburn] $3,000 per month,
alimony, until he passes away";
(b) "Respondent, Mark Vance Halburn, is free to relocate. with
to any of the
50 United States without permission or consultation of
Dolol'es";
(c) i He should be awarded "full and complete custody.
Petitioner Dolores is limited to
one weekend pei' month of supelv!sed visitation as she did not
complete the court-ol'dered
psychological exam. She must pay for supervision fees"; and
(d) Henry Glass is not allowed to be within 1,000 miles of due
to Glass's
lies in court and psychotic behavior."
65. On October 3, two weeks after the trial was concluded, Mr.
Halburn filed a
"Motion for contempt" requesting that Ms. Halburn "be declared
in CONTEMPT OF COURT,
imprisoned, and her parenting rights to be terminated."
66. On November 7, he filed a second contempt action accusing
Ms. Halburn of
"control-freak mental disabilities" and "outrageous and
threatening behavior". He again
demanded that she be imprisoned and her parentall'ights
terminated.
67. On November 16 he filed a third contempt action demanding
that Ms. Halburn's
parental rights be "permanently terminated". (Emphasis in
original).
68. On November 21 he filed a fourth contempt action.
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69. Finally, on November 26 Mr. Halburn filed a pro se motion
for attorney fees and
expenses. In this motion he argues:
(a) (The failure of this marriage is primarily the fault
ofPetitioncl', caused by her
repeated and consistent abusive, demeaning, demanding,
controlling and obnoxious behavior~
which continues today";
(b) "Respondent's fees are considerably greater than is typical,
due to the vexatious
litigation tactics of Petitioner and her lawyer throughout these
proceedings. It is obvious that
attorney Henry R. Glass, III, proceeded with these tactics
primarily to increase his fees and
personal profit. These tactics include his many false
allegations and gross misconduct. The court
should require Hemy Glass to pay the legal fees of both parties,
be disbarred, and pay Respondent
$10 Billion in punitive damages. Glass repeatedly deceived the
court, using false allegations, in
order to' improperly resttict the respondent from parenting
time. The COUlt should also require
Glass to reinstate evelY lost moment oftime between Respondent
and his son, Glass
should further be admitted, for the remaindel'of his life, to
the mental ward of a West Virginia
State Prison of the choosing of the court. Glass must pay the
state for the cost of his mental
treatment and incarceration. Glass must also take out full page
advertisements in every West
Virginia news publication-daily through December 31 , 2012,
apologizing to l'espondent for the
gross misconduct of Glass in this case"; and
(c) "Respondent's reasonable fees and expense to date exceed
$6,000. The largest
reason. for this is the custody battle over the couple's only
child, Petitioner admitted on
the witness stand that she knew the marriage was over years
ago-long before was
conceived. Yet she chose to bring a child into the world and,
taking audacious to a new high,
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using false allegations, wl'Ongly convinced the court to grant
her primary custody, child support,
and, most recently, is demanding Respondent pay her outrageous
legal fees. Such a stunt should
not be awarded."
70 . . Based on all of the above, the Comt finds as fact and,
pursuant to W.Va. Code 48-
9-206(a), concludes as a matter of law that it would be
manifestly harmful to for his
father to have any parenting time beyond that set fOlth in
Paragraph 17 supra. Mr. Halburn's
personality disorder has in the past, and much more likely than
not will in the future, put
at an increased risk of harm caused by third patties reacting to
Mr. Halbum's belligerent,
obnoxious and provoking behavior. He simply is incapable of
controlling himself. Mr. Halburn
may return to COUlt when the child l'eaches the age of ten and
is better able to protect himself
from his father's tirades (e.g. by using a phone to call his
mother) andlor Mr. Halbum has
completed a i'egimen of psychotherapy, as recommended by Dr.
Hudson, designed to augment his
ability to c
-
another public area mutually agreed upon by the parties and
which has surveillance cameras.
IV. ALLOCATION OF DECISION MAKING AUTHORITY
73. Mr. Halburn's documented personality disorder a.lso
necessitates that Ms. Halburn
have sole and exclusive decision making authority over except in
medical emergencies
when the child is in his care.
74. As an example of how Mr. Halbum's personality disorder
inte~{eres with the
provision of services to the COUlt heru:d credible evidence that
M1'. Halburn has made i I
enraged, r~de, dis1'espectful and excessively demanding phone
calls to day care provider, a facility that was chosen by Ms.
Halburn.
75. Mr. Halburn's behavior was threatening to the extent that a
personal protective
order was issued in favor of the provider's owner and against
Mr. Halburn.
76. In response to the order entered against him, M1'. Halburn
has accused the day care
owner of "slanderous accusations and psychotic behavior" and
demanded that the owner Hmust
not be allowed within 1,000 miles of He called the owner a
danger to who
engages in '~erratic; mentally unstable behavior."
77. Based on his behavior as set fOlth above, it is obvious that
Mr. Halburn will seek to
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-
disrupt the services of any provider who does not tolerate his
conduct and. for that reason, joint
allocation of decision making responsibility is not in the
child's best interests, nor is it in
best interest that his father have equal access to the child's
medical and educational
records. Unless his access is lestricted, there is no doubt that
Mr. Halburn will bully, degrade and
infuriate evby pl'Ovider with whom he disagrees 01' who has
refused to accommodate his odious
and malicious conduct.
78. Consistent with the above. Ms. Halbum may limit 01'
eliminate Ml". Halburn's
0ppOltunities to accompany, visit 01 call at any day care
center, pre-school, school.
church, doctor's office or other service provider.
79. Mr. Halburn retains the right to make emergency medical
decisions for
while is in his care and Ms. Halburn is not present.
V. EQUITABLE DISTRIBUTION "
80. Petitioner and her mother acquired a home in Hmricane,
Putnam County, West
Virginia, in 1992. Mr. Halburn's name is not on the deed. The
parties resided in the home from
April 2000 until March 2012. Neither party had the property
appraised for this litigation.
81. It is undisputed that during the course of the marriage
marital funds were used to
pay down the principal amount ofthe mortgage on the horne by
$16,000.
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82, Mr. Halburn seeks one-half of the difference between the
amount left on the
mortgage at the time of separation and the asking price" of the
home, which is now on the market
for sale. There is no SUppOlt in law for this method of
assigning value and he cites none.
83. Mr. Raburn also seeks reimbursement for $12,750 in
"improvements". The list I
submitted, however, includes such items as "photos of $500",
"Back room entertainment
centel' $500", and " swing set $50011 , which clearly are not
improvements to the realty
and did not increase its value. In any case, no credible
opinion, expert or otherwise, was given as
to the increase in value to the home as the result of any
legitimate "improvement" and the Court
declines to speculate.
84. Mr. Halbum likewise demands that he be reimbursed for half
of the taxes paid on
the home during the course of the marriage. This argument fails
to consider that he lived in the
home for twelve years and enjoyed all the benefits connected
therewith,
85. ! Based on the above, and as an incident to the allocation
of custodiall'esponsibility
set fOlih above, Ms. RalbUln is awarded sole and exclusive
possession of the marital home and
any interest Mr. Halburn may claim in the home is terminated.
For purposes of equitable
distribution~ the home is assigned a value of$16,OOO, which is
the reduction in the principal
amount of the mOltgage over the course of the malTiage.
-
86. Mr. Halburn started and built PutnarnLive.com during the
coUrse of the marriage.
This internet based business was the parties' prime soUt'ce of
income and is clearly a marital asset.
The only value put upon the business at trial was $25,000, which
was an offer of purchase that
:Mr. Halburn refused a few years ago. The business is awarded to
Mr. Halburn as his sole property
and for purposes of equitable distribution it is assigned a
value 0[$20,000 to account fot any
diminishment in value since the offer of purchase was made. It
should be noted that at one point
Mr. Halburn responded to an inquity of purchase with an "asking"
price of$250,000.
87. Petitioner shall have exclusive use, possession and
ownership of the 2010 Nissan
Sentl'ft and Respondent shall similarly enjoy the 2010 Hyundai
Elantra. Each party shall be responsible for the debt on the
vehicle in herlhis possession. For purposes of equitable
distribution, the Nissan is assigned a net value of $2,000 and
the Hyundai is assigned a net value
of $4,000.
88. Each party shall retain all personal propelty currently in
her/his possession. For
purposes of equitable distribution~ the property retained by Ms.
Halburn is assigned an excess
value of$l,500 above the value orMr. Halburn's property.
89. The parties did not accumulate any debt in both of their
names. Subsequently, Ms.
Halbutn shall be responsible for all marital debt in her name,
totaling approximately $8,800, and
Mr. Halburn shall be responsible for aU marital debt in his
name, which is approximately the same
amount. Each party is responsible for her/his OWn student loan
debt.
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-
90. The parties are directed to prepare, sign and file amended
state and federal 2011
tax retw'os. Mr. Halbum shall be responsible for the estimated
$900 owed as a result of the
anlended returns. Ms. Halbul1l shall be responsible for the tax
debt owed to the State of
California in the amount of $363.46.
91. Distribution of assets and debts as set forth above results
in a net marital estate of
$42,236.54, of which $23,100 is awarded to Mr. Halbul'll and
$19,136.54 is awarded to Ms.
Halburn. The cash payment owed by Mr. Halburn to Ms. Halbul'n to
equalize their one-half
interest in the marital estate is $1,981.73. That amount shall
be paid on or before Apdll, 2013.
VI. MISCELLANEOUS
92. Neither party has made a rational demand for alimony or
spousal support from the
other party, and, therefore, each pruty shall be forever
precluded froin making 8. claim for the same
against the other.
93. Petitioner is restored to her maiden name of Dolores Jean
Maltin.
94, Respondent is enjoined and restrailled from communicating in
any manner with
Petitioner except as reasonably necessary concerning parenting
of the child or in case of an
emergency involving the child. At all times Respondent shall
refrain from all communication
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designed to harass or annoy Petitioner.
VII. ATTORNEY FEES
95. Ms. Halburn has filed a petition seeking an award of
attorney fees and costs in the
amount of$10,435.85.
96. W.Va. Code 48-1-305(a) states that "Costs may be awarded to
either party as
justice requires ... ".
97. W.Va. Code 48-1-305(c) governs the award offees and costs
expended because
of another party's vexatious litigiousness:
When it appears to the COUlt that a party has incurred attorney
fees and costs unnecessarily because the opposing party has
asserted unfounded claims or defenses for vexatious, wanton or
oppressive purposes, thel'eby delaying or divelting attention from
valid claims or defenses asserted in good faith, the court may
order the offending party, or his or her attorney, or both, to pay
reasonable attorney fees and costs to the other party.
98. Here an award of costs and fees is authorized by W.Va. Code
48-1-305(a) and (c)
due to much of the fees incurred by Ms. Halburn being a result
of Mr. Halburn' s vexatious,
wanton and oppressive conduct during the cOUrse of this
litigation.
99. Once a statutory foundation for the award of fees in a
palticular matter has been
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-
identified, an award of fees and costs rests within sound
discretion of the coult. Banker v,
Banker, 196 W.Va, 535,474 S.E. 2d 465 (1996).
100. In Banker, the COUlt articulated the "wide array of
factors" that must be considered
in determining whether to award fees and costs: (1) the
petitioning party's ability to pay his or her
own fee; (2) the beneficial results obtained by the attomcy; (3)
the pruties' respective financial i
conditions; (4) the effect of the attorney's fee on each party's
standard of living; (5) the degree of
fault of either party making the action necessary; and (6) the
l'easonableness of the attorney and
fee request. Banker, 196 W.Va. 550-51.
If the "reasonableness" of a fees request is at issue, the
Banker Court directed that
reference be made to the traditional 12 factor test for
determining reasonableness first enunciated
in Aetna Casualty & Surety Co. v. Pitrolo, 176 W.Va. 190,32
S,E. 2d 156 (1986):
"The reasonableness of attorney's fees is generally based on
broad factors such as: (1) the time and labor involved; (2) the
novelty and difficulty of the questions; (3) the skilll'equisite to
peliorm the legal service properly; (4) the preclusion of other
employment by the attomey due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experi~nce,
reputation and. ability of the attorneys; (10) the undesirability
of the
. I
case; (11) the nature and length of the
pl'ofessionalrelationship with the client; and (12) awat'ds in
similar cases."
Each of these factors will be addressed below.
'101 . The party's ability to pay her OWn fee: Ms. Halhurn has
the ability to pay a portion
of her fees.
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102. The beneficial results obtained by the attorney: Petitioner
prevailed on each majol'
issue,
103. The parties' respective financial conditions: The parties
are roughly equal in their
respective financial condition.
104. The effect of the attorney's fees on each party's standard
ofliving; Petitioner's
standard of living will be decreased tremendously if she must be
responsible for payment of all of
her attomey fees and costs which were incurred due to the
vexatious conduct of Mr. Halburn.
105', The time and labor required: Numerous pl'oceedings were
held in this matter, many
as a result of Mr. Halburn's filings.
106. The novelty and difficulty of the questions, and the skill
requisite to pelfOlm the
legal service properly: Due to the extent and nature ofMr.
Halburn's conduct, any case in which
he is a party requires skilled and tenacious counsel.
107. The preclusion of other employment by the attorney due to
acceptance of the case:
This case required more than average availability and litigation
skills since Mr, Halburn can
always be counted on to turn the simple into the complex and
launch a full scale verbal assault on
any and all persons who disagl'ee with him.
-
108. The custornslY fee: In this case, the hourly rate requested
of $175 pel' hour is
extremely reasonable.
109. Time limitations imposed by the client or the
circumstances: Other than the
standard deadlines involved in a divOl'ce case, there were no
other relevant time limitations in this
case.
110. The amount involved and the results obtained: Petitioner' s
attorney achieved
success on each issue.
111. The experience, reputation. and ability of the attome~:
Both Petitioner and
Respondent were repl'esented by competent, experienced counsel,
who regularly appear in Family
Court for complex cases.
112. The undesirability of the case: This case must considered
highly undesirable given
Mr. Halburn's conduct.
113 . rhe nature and length of the professional relationship
with the client: This factol' is
not applicable in this case.
114. Awards in similar cases: While it is rare for this Court to
award fees, when the
. standards set forth in W.Va. Code 48-1-305 have been met an
award of fees should be and
-
usually is entered.
115. A reduction in the amount of fees requested is warranted
since Ms. Halburn would
have incurred fees and costs of at least $2,500 even absent Mr.
Halburn's conduct.
116. Ms. Halburn is hereby AWARDED fees and costs in the amount
of$7,935.85 and
Mr. Halburn shall be the same by Aprill, 2013.
Based upon the Fjndings of Fact and Conclusions of Law set forth
above, it is, therefore,
ADJUDGED and ORDERED that the mal'l'iage heretofore celebrated
and eXisting between the
parties be, and the same is hereby dissolved, and that the
parties be and they are hereby and
forever divorced from each other and the bonds of matrimony
under the terms, conditions, rights
and obligations set forth above.
Th~ Clel'k ofthis COUlt shall send a cel1ifiedcopy of this Order
to each party upon its ently as follows and to the BU1'eau of Child
Support Enforcement:
Hemy R. Glass, Esq. (Counsel for Petitioner) 5215 MacCorkle
Avenue, SW South Charleston, 'WV 25309
Michael S. Bailey, Esq. (Counsel for Respondent) P. O. Box 347
Barboursville, WV 25504
And it appearing to the COtl1t that there is nothing further to
be done in this cause at this
time, it is ORDERED that the same be omitted from the docket of
this Court.
Pursuant to W.Va. Falnily Court Rule 22(c), you are hereby
notified that this is a
Final Order. Any party may file ft motion for reconsideration of
this Final Order as
~40-
-
provided in W.Va. Code Sl-2A-IO. Any party aggrieved by this
Final Order may take an
appeal either to the Circuit Court or directly to the West
Virginia Supreme Court of
Appeals. A petition for appeal to the Circuit Court may be fIled
by cithe!' party within
thirty (30) d~ys after entry of this Final Order. In order to
appeal directly to the Supreme
Court of Appeals, both parties must file, 'Within fourteen (14)
days after entry of this Final
Order, a jo'int notice of intent to appeal and waiver of right
to appeftl to circuit court.
ENTER thiSUt\d day of January, 2013.
Mike Kelly, Family Couh Judge
,
I
ENTERED JAN 23 2Dil
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