Marion judge rules family court litigants entitled to counsel in contempt hearings

FAIRMONT – A Monongalia County man has successfully challenged a Marion County family law judge's decision denying his request for court-appointed counsel in a civil contempt hearing.

Marion Circuit Judge David R. Janes on April 9 granted a writ of prohibition filed March 15 by John Shabazz of Morgantown. In his order, Janes said Marion Family Law Judge Amy Swisher erred by not giving Shabazz the benefit of counsel before finding him in contempt for failing to pay child support.

"Having review the petition, as well as the entire court file, this Court is of the opinion that the Marion County Family Court exceeded its legitimate powers by failing to provide Mr. Shabazz with counsel for the Feb. 7, 2012, contempt hearing," Janes said in his order.

"The order entered by the family court after the contempt hearing clearly imposes a restraint in Mr. Shabazz's liberty. Under the West Virginia Constitution, any court proceeding that constrains or potentially a defendant's liberty requires the court to appoint the defendant an attorney if he cannot afford one."

In his order, Janes cited several decisions issued by the state Supreme Court including State ex. rel. Graves v. Daugherty, Smoot v. Dingess and Moore v. Hall that held a defendant's right to counsel "applies to contempt hearings, either civil or criminal."

Records show, after ordering him released from the North Central Regional Jail on Feb. 7, Swisher 10 days later found Shabazz in contempt for failing to pay nearly $4,000 in court-ordered child support, and accumulated interest to Lisa Turner. In her order, Swisher said Shabazz was to make a payment of $150 to the state Bureau for Child Support Enforcement office by Feb. 10, and $50 the first of every month beginning in March or again face being incarcerated.

In speaking with The West Virginia Record, Shabazz admitted to the arrearage. However, the reason his has declined to pay it is not out of spite, but because "it was based on fraud from the beginning."

Since Turner initiated support proceedings against him, Shabazz says he's asked for appointment of counsel to help prove not only her claims are fraudulent, but she also falsely accused him of abusing her. In all hearings up to and including the one for contempt, Shabazz says Swisher has ignored all his motions.

Following Janes' ruling, Shabazz says he was instructed by the Marion Circuit Clerk's Office to file the necessary paperwork to receive a court-appointed attorney in his case. Though in her Feb. 7 release order Swisher scheduled a review hearing for June 5, it remains unclear if it will occur following Janes' ruling.