Supreme Court backs help for 'pro se' plaintiffs

CHARLESTON – Douglas Cottrill could have overturned a $9,504.25 child support order with no help from an attorney, if he had known about the statute of limitations.

Now the West Virginia Supreme Court of Appeals has cancelled Cottrill's debt, ruling that Harrison County Circuit Judge Thomas Bedell should have accommodated his lack of legal expertise.

Under the state Constitution, "the right of self representation in civil proceedings is a fundamental right ..."

Still, those who appear "pro se" -– for self -– run a risk of missing legal points on which they might have prevailed.

Twenty years ago the Supreme Court of Appeals held that a trial court must "strive to insure that no person's cause or defense is defeated solely by reason of their unfamiliarity with procedural or evidentiary rules."

Cottrill turned into a perfect example.

When Harrison County's child support enforcement bureau hit him with a back bill for child support in 2004, his children were 36, 31 and 27 years old.

He and Patricia Cottrill married in 1966. They divorced in 1980, and Harrison County family court ordered him to pay support at $60 a month per child.

In 1988 the child support enforcement bureau declared an arrearage of $11,100. A judge ordered withholding of a tenth of his income to apply to the arrearage plus $120 a month for his two youngest children.

Sixteen years later the bureau alleged that the arrearage had grown to $40,349.09.

At a family court hearing Douglas Cottrill said he paid his former wife and the children directly. His former wife said he did not pay her and she did not know if he paid the children.

Douglas Cottrill said all his records burned down four or five years ago.

"I have no way to prove anything and I could not afford to have a lawyer come up here with me," he said. "I wouldn't have anything to give him to back me up anyway."

A family judge reduced the arrearage to $7,190, plus interest of $2,314.25.

The judge noted that, "The defense of the Statute of Limitations has not been raised by Douglas D. Cottrill, and the court does not do so now."

Cottrill appealed to the circuit court, raising a defense under the statute of limitations.

Circuit Judge Bedell refused to consider the defense because Cottrill had not raised it at the family court hearing.

Cottrill at last sought counsel, retaining Michael Niggemyer of White Hall to argue before the Supreme Court of Appeals.

Kimberly Bentley of Charleston argued for the enforcement bureau that a pro se litigant must bear responsibility for consequences of his mistakes.

Bentley argued that a court must not act as Cottrill's surrogate attorney.

All five Justices agreed that the statute of limitations would long ago have barred payment of the arrearage.

They wrote that execution of a judgment may be issued within ten years. They wrote that the Court has specifically applied this limit to child support.

They wrote that a trial court can "allow reasonable accommodations to pro se litigants without resultant prejudice to adverse parties."

They wrote that Bedell would not have prejudiced the bureau's rights by accommodating Cottrill because the bureau had no rights to prejudice.

They wrote that they found no reason to countenance the bureau's delay.

They wrote that Cottrill alluded to the statute of limitations when he said he could not prove his payments due to the passage of time.

This "skeletal argument" should have preserved his claim on appeal to Bedell, the Justices wrote.

They directed Bedell to enter an order consistent with their opinion.