Final Divorce Order Halburn v. Halburn 11d-516 1/23/2013

IN THE FAMILY COURT OF PUTNAM COUNTY, WEST VillGINIA
In Re The Marriage Of: 103 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 ofHearing, all duly and timely filed and
served. Whereupon, the Court received the testimony ofthe parties and their respective
witnesses, and the exhibits and other evidence of each party,
Based on all ofthe evidence, the pleadings, motions, and disclosures, and all other
matters ofrecord, 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 ofthe filing ofthe Petition in this action, the Petitioner and
Respondent were, and for mote than one year next preceding the date ofthe institution ofthis
action had been, citizens and residents ofPutnam County, West Virginia.
2. The Petitioner and Respondent were duly and legally married in Putnam COUllty,
-1-

West Virginia, on August 29, 1998.
3. The Petition was filed in this action inNovember 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 ofthe armed forces ofthe United States ofAmerica or any ofits 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 ofher 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.
-2-

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 ofcalculating 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 ofhealth, 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 ofapproximately $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 ofthe minor child commencing Febl'uary 1, 2013 and continuing each month thereafter
until the fbrthel' order ofthe 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 oftwenty, The child support payments are
-3-

to be reduced or terminated only in accordance with the West Virginia Code sections, 48-11-101,
et seq..
1L 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 ofthe 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
ofthe same within 90 days ofincuning the expense. The other party shall pay his/her share
within 30 days. Ifa 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 ofcourt. 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 ofthe COUli.
-4-

15. Dolores Halburn is the designated custodian ofthe minor child ofthe 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 ofcustodial 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 ofDolores 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 ofMr. 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 ofcustodiall'esponsibility. When Ms.
Halburn objected to the cost ofthe health care provider selected by the COUlt, each party was
allowed to obtain an evaluation by a provider oftheir choice and at their own expense. Mr.
-5-

Halburn complied. Ms. Halbum did not. Due to heL' failure to adhere to the Order ofthe 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 ofmental problems growing up". Both parents had difficulty controlling their tempers. The
mother "attempted to kill herself6 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 ofwhich he attlibuted to "srnall~
town retaliation against reporters." The arrests include a guilty verdict on a charge oftrespassing
in 2009.
(c) Dr. Hudson found that Mr. Halburn "... tends to present himselfin a consistently
favorable light, and as being relatively free ofcOmmon 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 ofdenial ofproblems with
drinking or drug use as Mr. Halburn described certain personality characteristics that are often
associated with involvement with alcohol or drugs."
-6-

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
ofhis tenacity in standing up for his own tights and those ofhis 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 ofhis own contribution to these conflicts, instead
focusing on his perceptions ofthe inappropriate behavior ofothers 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 ofexposure to that conflict.
However, this examiner is aware ofno 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
isjust one ofmany 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 oflife stress would also constitute risk factors for violence.. . .There
is some evidence ofa 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 ofinitial evaluation)
-7-

(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 ofhis 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 ofheightened 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 ofcognitive
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 ofhis home. Mr. Halburn has been distressed, upset, and
angered by what he perceives as improper due process and believes that he is the
target ofthe authorities. All ofthis is the result of a severe personality disorder
which predates any ofthe alleged strcsSOrS.
It should be noted that Mr. Halburn's psychological profile and behavior would
-8-

suggest that he has propensity for aggressive behavior, No history of overt
violence is found; however, given his degree ofagitation 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 ofchaotic interpersonal relationships and affective
dysregulation, D1'. Thistlewaite opined the presence ofpersonality 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
briefmeasure 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 ofmany 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 ifa known history of significant
violence had been substantiated.
B. Testimony ofDolores 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 hewill 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
ofbodily harm caused by others or, ifMr. Halbtlm is arrested yet again. might result in the child
·9·

being placed in the temporary care ofunknown 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 ofunknown third parties for an extended
period oftime.
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 ofthe aitport by uniformed security. She testified
credibly that Ml'. Halburn was so out ofcontrol that she feared they would be arrested. She
worries that ifa 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 ofevents 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 ofprivate individuals and companies
as well as various public officials and entities, and her claim that their application to be foster
parents was denied because ofhis behavior. She 8l'gues that his volatile, uncontrollable and
unpl"edictable rages Ulmecessarily increases the risk ofharm to
25. :Mr. Halbum's arrests follow the pattern clearly seen by the mental health
-10-

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 ofthe frrst day oftrial 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 itselfwhich
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 ofDr. 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 ofawareness as to his own contribution to the conflict.
Dr. Hudson testified that Mr.Halbum allows his emotions to dictate his behavior reg:udless of
-11-

,
: ,
the circumstances or the consequences.
28. When asked if, given his assessment and the very young age ofthe 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 ifone is having those types
ofconflicts one is at somewhat elevated l'isk ... one could run in to someone who
responds to that type ofrisk violently even ifMr. Halburn is not initiating
violence ... rhave to say there is some level ofadditional 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 ofthat but I can;t rule out that
possibility.
D. Mr. Halbum's Personality Disorder and This Litigation
29. During the course ofthis 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 ofDr.
Hudson.
30. Mr. Halburn's mental unraveling in this case began with the entry ofan
uncontested temporary order on January 27,2012, that included the sentence "Respondent shall
not remove said child from the State ofWest Virginia without the express written permission of
-12-

Petitioner or this COU11."
31. The restriction was made part ofthe order as a result ofDr. 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 ofsuch 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
thetemporary order was presented for ently, Mr. Halburn did not object to the "out ofstate"
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 HAVB 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 ofstate for the period ofApril 12-17, 2012 (NB: the motion was
filed one day before the anticipated trip). The motion was promptly scheduled for a
-13-

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 aruling 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 ofMr.
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 ofhis 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 ofcontrol";
(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
-14"

in West Virginia".
36. On Apl'il18, the Clerk ofthe Supreme Court ofAppeals 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 ChiefJustice 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 ChiefJustice.
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 ofwork 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 ofcrap",
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
-l5~

,
..
approval. The restriction on out ofstate 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] ofa
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 IMMEDLATELYbe vacated upon receipt
ofthis motion" (SiC);
(e) Suggests "... the court could order the State ofWest 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$10 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 ofthis 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
-16-

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 staffofbeing "rude";
(d) Demanded that the Court "resign and save the state some money";
-17~

(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 staffto 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 cOut. I refused to allow
Mark Halbu1'n to correct Glass's lies and improperly threatened to thl'OW Mark
Halburn out ofa 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
-18-

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 staffby 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 ofa 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 ofany pension Or social security benefits
paid to Dolores both during her lifetime and after her death";
-19-

(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 ofemotional distress".
48, Also on May 14 the Clerk ofthe Supreme Court warned Mr. Halburn for the
second time to refrain from contacting that COlllt.
49! On May 23 Mr. Halbum filed a"Rite ofProhibition" (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 ofprohibition was denied.
51. On June 4. Ml'. Halburn filed an "appeal" of the denial of the writ ofprohibition,
stating that the order:
(a) ".. . ignores reality . . ,";
-20-

(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 ofpracticing law", ", .. must be
imprisoned for gross incompetency with damages paid to Mark Halburn of $10 million EACH
immediately upon receipt oftrus appeal", and "All three must be banned fJ.'Om practicing law for
life in an 50 United States, Puelto Rico, Guam and Washington, D.C.". (Emphasis in original).
52. On May 29 Mr. Halbum filed an emergency motion stating that his mother had
been placed in intensive care in ahospital in Califomia. He requested that Ms. Halburn be
ordered to transport the child to California to see the gl'andmothel'. He further demanded that co••
.the COUlt order Dolores to pay for this trip and to submit to a full psychiatric exam upon her
retulTI,"
53. However, the dayprior to filing his emergency motion, Mr. Halburn emailed his
wife that "My mom is too far gone f01" to visit her now. She is incoherent and might
scare Unless something changes we have missed the wonderful 0ppOltunity for
to see his grandmother and for her to enjoy him."
54. Despite Mr. Halburn'$ 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
-21-

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 ofpaying for the same.
55. On July 5, when Mr. Halbul'll still had not submitted either ofthe required
documents, his motion was denied. While Mr. Halburn now claims that he did submit a budget
to the Circuit Clerk ofPutnam 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 ChiefJustice on June 13 in complete defiance ofthe
two warnings previously issued by the Clel'k ofthe Supreme COUlt Court. In this motion he asks
I
that the ChiefJustice:
(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';
-22-

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 ofhis 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 ofa "majority ofnon-
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 ofWest 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 ofonly 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 ofProhibition against
Judge Kelly shall be reversed tlpOn receipt oftrus motion with Cummings' permanently disbatred
for blatantly covering the ass ofincompetent Judge Michael Kelly. AU fees paid to Cummings
for his travesty order shall be returned to the State ofWest Virginia and issued to above-
-23-

referenced Father's Rights Commission."
57. On June 15, Mr. Halburn sent the Supreme Court clerk and the ChiefJustice the
following email:
ChiefJustice 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 ChiefJustice 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 ChiefJustice 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 ofPutnam County (Putnam County Civil Action No. 11-D-516); and
-24-

Mark V. Halburn has recently contacted the ChiefJustice 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 ofthis State - including Mr. Halburn - must
co~ply with the appropriate COUlt rules, none ofwhich 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 ofthe COUrt system that are vexatious,
frivolous, or do not comply with the terms ofthis order will be referred to the
appropriate authorities for possible criminal prosecution.
60. In a "Motion for Recusa!, Reversal ofTemp0rlHY 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 ofhis father in his life
on a daily basis, thereby causing probably permanent psychologlcal harm";
(b) The Court has exceeded "the bounds ofcommon decency and common sense";
(c) The COUlt "has permanently scatted the reputation offairness 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
Ce) Mr. Halburn demands to be allowed "to return to the marital home immediatelY"
or "be provided the settlement funds of $60,000 upon receipt ofthis 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 ofthe Supreme Court's Administrative Order,
Mr. Halburn sent the following email to the Administrative Director ofthe 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, "Ifyou need someone to take care
of Watkins or Kelly for you, just let us know..." I don't know ifthat means
cooking them homemade cheesecake or a threat ofviolence. When I turned
around, all I saw was numerous people ofboth 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 ofpast infection) and have a tough time distinguishing
-26-

which side ofme 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 ofelected 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 ALWAYS try to do
the right thing. However, there really isn't anything more to say. Ijust wanted you
to be aware ofthe 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 ofall divorcing parents, Mr. Halbul'Jl became irrate at the content of the video that is palt
ofthe curri~ulum. He demanded the right to address the class and told the class instructor that
she was "o~t ofline" 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 oflaw. 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
-27-

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 ofthe
50 United States without permission or consultation ofDolol'es";
(c) i He should be awarded "full and complete custody. Petitioner Dolores is limited to
one weekend pei' month ofsupelv!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.
-28-

69. Finally, on November 26 Mr. Halburn filed apro se motion for attorney fees and
expenses. In this motion he argues:
(a) (The failure ofthis 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 ofPetitioner 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 ofboth 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'ofhis life, to the mental ward ofa West Virginia
State Prison ofthe choosing ofthe court. Glass must pay the state for the cost ofhis 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,
-29-

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 ofthe above, the Comt finds as fact and, pursuant to W.Va. Code §48-
9-206(a), concludes as a matter oflaw 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 ofharm 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 often 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 ofpsychotherapy, as recommended by Dr. Hudson, designed to augment his
ability to c<;mtrol himselfand avoid the conflicts which he ourrently creates and revels in.
71. : In addition to his regular parenting time as delimited in this Order, Mr. Halburn
may have ~e child in his care from noon to six p.m. on the following days: the child's birthday;
the father's birthday; Easter; Father's Day, Thanksgiving Day; and Christmas Day. He may also
telephone the child every Thursday at 6 p.m. for ten minutes on a phone which he is to ptovide
and pay fOJ:.
72. All exchanges ofthe child shall occur at the Hurricane Police Department or in
-30-

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 ofhow Mr. Halbum's personality disorder inte~{eres with the
provision ofservices 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 ofthe 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
-31-

disrupt the services ofany provider who does not tolerate his conduct and. for that reason, joint
allocation ofdecision 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 ofthe marriage marital funds were used to
pay down the principal amount ofthe mortgage on the horne by $16,000.
~32-

82, Mr. Halburn seeks one-half ofthe difference between the amount left on the
mortgage at the time ofseparation and the «asking price" ofthe home, which is now on the market
for sale. There is no SUppOlt in law for this method ofassigning 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 ofany legitimate "improvement" and the Court
declines to speculate.
84. Mr. Halbum likewise demands that he be reimbursed for half ofthe taxes paid on
the home during the course ofthe 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 ofcustodiall'esponsibility
set fOlih above, Ms. RalbUln is awarded sole and exclusive possession ofthe marital home and
any interest Mr. Halburn may claim in the home is terminated. For purposes ofequitable
distribution~ the home is assigned a value of$16,OOO, which is the reduction in the principal
amount ofthe mOltgage over the course ofthe malTiage.

86. Mr. Halburn started and built PutnarnLive.com during the coUrse ofthe marriage.
This internet based business was the parties' prime soUt'ce ofincome and is clearly a marital asset.
The only value put upon the business at trial was $25,000, which was an offer ofpurchase that
:Mr. Halburn refused a few years ago. The business is awarded to Mr. Halburn as his sole property
and for purposes ofequitable distribution it is assigned a value 0[$20,000 to account fot any
diminishment in value since the offer ofpurchase was made. It should be noted that at one point
Mr. Halburn responded to an inquity ofpurchase with an "asking" price of$250,000.
87. Petitioner shall have exclusive use, possession and ownership ofthe 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 $4,000.
88. Each party shall retain all personal propelty currently in her/his possession. For
purposes ofequitable distribution~ the property retained by Ms. Halburn is assigned an excess
value of$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 approximatelythe same
amount. Each party is responsible for her/his OWn student loan debt.
-34-

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 ofthe
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 ofassets and debts as set forth above results in a net marital estate of
$42,236.54, ofwhich $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 ofDolores Jean Maltin.
94, Respondent is enjoined and restrailled from communicating in any manner with
Petitioner except as reasonably necessary concerning parenting ofthe child or in case ofan
emergency involving the child. At all times Respondent shall refrain from all communication
-35-

designed to harass or annoy Petitioner.
VII. ATTORNEY FEES
95. Ms. Halburn has filed apetition 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
ofanother 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 ofcosts and fees is authorized by W.Va. Code §48-1-305(a) and (c)
due to much ofthe 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
-36-

identified, an award offees and costs rests within sound discretion ofthe coult. Banker v,
Banker, 196 W.Va, 535,474 S.E. 2d 465 (1996).
100. In Banker, the COUlt articulated the "wide array offactors" 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 ofthe attorney's fee on each party's standard ofliving; (5) the degree of
fault ofeither party making the action necessary; and (6) the l'easonableness ofthe attorney and
fee request. Banker, 196 W.Va. 550-51.
Ifthe "reasonableness" ofa 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 ofattorney'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 ofthe attorneys; (10) the undesirability ofthe. I
case; (11) the nature and length ofthe pl'ofessionalrelationship with the client; and
(12) awat'ds in similar cases."
Each ofthese factors will be addressed below.
'101. The party's ability to pay her OWn fee: Ms. Halhurn has the ability to pay a portion
ofher fees.
-37-

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 ofthe attorney's fees on each party's standard ofliving; Petitioner's
standard ofliving will be decreased tremendously ifshe must be responsible for payment ofall of
her attomey fees and costs which were incurred due to the vexatious conduct ofMr. Halburn.
105', The time and labor required: Numerous pl'oceedings were held in this matter, many
as aresult ofMr. Halburn's filings.
106. The novelty and difficulty ofthe 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 ofother employment by the attorney due to acceptance ofthe 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 ofthe attome~: Both Petitioner and
Respondent were repl'esented by competent, experienced counsel, who regularly appear in Family
Court for complex cases.
112. The undesirability ofthe case: This case must considered highly undesirable given
Mr. Halburn's conduct.
113. rhe nature and length ofthe 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 offees should be and

usually is entered.
115. A reduction in the amount offees requested is warranted since Ms. Halburn would
have incurred fees and costs ofat 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 ofFact and Conclusions ofLaw 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 ofmatrimony under the terms, conditions, rights
and obligations set forth above.
Th~ Clel'k ofthis COUlt shall send a cel1ifiedcopy ofthis Order to each party upon its
ently as follows and to the BU1'eau ofChild 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 ofthis 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 thiSUtd day of January, 2013.
Mike Kelly, Family Couh Judge
,
I
ENTERED
JAN 23 2Dil
di' PAGE
- -
Id313
(C:bL~
H GQ(2Q
mB~

Final Divorce Order Halburn v. Halburn 11d-516 1/23/2013

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (9)

Similaire à Final Divorce Order Halburn v. Halburn 11d-516 1/23/2013

Similaire à Final Divorce Order Halburn v. Halburn 11d-516 1/23/2013 (20)

Plus de Putnam Reporter

Plus de Putnam Reporter (7)

Dernier

Dernier (20)

Final Divorce Order Halburn v. Halburn 11d-516 1/23/2013