St. Albans attorney Mary Jo Swartz, foreground, attempts to conceal her face from cameras following a hearing March 24 in Kanawha Circuit Court on a writ of prohibition her client Donald Ray Carter II filed challeging a ruling by Kanawha Family Law Judge Mike Kelly granting shared custody of Carter’s daughter, Alexys Paige Carter, to his ex-girlfriend, Brooke Ballard. Judge Paul Zakaib on an unspecified date, and for unspecified reasons has since sealed the case. With Swartz are, clockwize from left, Carter, her husband, Mark, and their partner, Allyson Griffith. (Photo by Lawrence Smith)
CHARLESTON – A case alleging improper conduct by a family law judge is now off-limits to the public.
Shortly after it was filed on March 17, Kanawha Circuit Judge Paul Zakaib ordered a hearing held on March 24 on the writ of prohibition Putnam County businessman Donald Ray Cater II filed against Kanawha Family Law Judge Mike Kelly. In his writ, Carter asked Zakaib to prohibit enforcement of Kelly’s March 8 order awarding shared custody of his daughter, Alexys Paige Carter, to his ex-girlfriend, Brooke Ballard.
Carter accused Kelly not only lacking the jurisdiction to hear the case, but also enabling Ballard to use the state’s guardianship laws as back-door attempt to gain custody of Alexys.
Upon learning of his presence at the hearing, Zakaib asked a West Virginia Record reporter to leave. When asked the reason why, Zakaib cited state law that bars the public from attending domestic relations cases.
The reporter, however, remained outside the courtroom in an attempt to obtain a comment from the parties as well as find out the outcome of the hearing. During a short recess 45 minutes into the hearing and its conclusion 15 minutes later, everyone remained tight-lipped.
The only utterance other than “No comment” came in the form of outburst made by Carter’s co-counsel, Mary Jo Swartz, a former administrative law judge for the state Public Employee’s Grievance Board, who asked the reporter, “Don’t you have anything else better to do?”
A week following the hearing, a check was made to see what ruling Zakaib might have made. Almost all references to the case on the public access terminal at the Kanawha Circuit Clerk’s Office were purged.
However, a search using its case number came back “Case sealed.”
The Record attempted to find out who asked for case to be sealed, and when it was done all to no avail. When contacted, Ballard’s attorney, Andrew Nason, said he couldn’t comment on it due to it being under seal, and Mark Swartz, Carter’s co-counsel, did not return repeated telephone calls.
Also, since he was on vacation until May 2, Zakaib was unavailable for comment.
Furthermore, when he was contacted, Kelly declined to comment on the allegations against him citing Zakaib’s order to seal the file. However, he acknowledged he was not present at the hearing, but submitted a letter to Zakaib in response to Carter’s writ, and, to the best of his knowledge, Zakaib had yet to make a ruling.
“If there is a decision, I haven’t heard about it,” Kelly said.
Kanawha Circuit Court case number 11-MISC-136