Charleston woman seeks intervention on family law judge's inaction

By Lawrence Smith | Dec 2, 2011

CHARLESTON – A Charleston woman is alleging a family law judge's foot-dragging in holding her ex-husband in contempt for not keeping current on his support payments could have serious life-or-death consequences.

Nancy J. Kemp on Nov. 21 filed a writ of mandamus in Kanawha Circuit Court. In her writ, Kemp is asking that Kanawha Family Law Judge Robert M. Montgomery immediately hold a hearing on contempt motions she filed against her ex-husband, Richard H. Kemp, for being three months in arrears of spousal support.

Because the support payment is her only source of income, Kemp says she's had to cut back on important expenses such as prescription medication.

According to the writ, Nancy and Richard Kemp were involved in two separate actions in family court, one in 2001 and the other in 2010. The one in 2001 was their original divorce petition which resulted in Dec. 2, 2005, order requiring Richard to pay Nancy spousal support.

The spousal support order, which was modified less than a year later, ordered Richard to pay Nancy a net $1,582 a month. Until August, Nancy says Richard made good on the monthly payments.

According to her writ, as of Nov. 17, Richard is three months or $4,746, in arrears. Since she has no other income, Nancy says the arrearage has either limited or prohibited her ability to purchase medication prescribed by her doctor for her diagnosed medical conditions.

Attached to her writ is a letter from her doctor stressing the importance of taking her prescribed medication which "could be fatal if not taken timely."

In an effort to make Richard cure the arrearage, Nancy filed four motions for contempt on Sept. 21, Oct. 3, Nov. 10 and Nov. 15. In her motions file Oct. 3 and Nov. 10, Nancy asked respectively for an expedited hearing on her motion, and an emergency order requesting Richard pay the spousal support.

However, in response to all the motions, Montgomery set the hearings for them on Dec. 12. Believing Montgomery was not taking the gravity of her situation seriously led Kemp to file her writ to circuit court.

In her writ, Kemp is seeking an order compelling Montgomery to hold an expedited hearing or telephone conference sometime well before Dec. 12. As of presstime, no action was taken on Kemp's writ.

Kemp is represented by Hurricane attorney Shawn D. Bayliss. The case is assigned to Judge James C. Stucky.

Montgomery is one of five family court judges in the 11th Family Law Circuit serving Kanawha County. He was first elected to the bench in May 2002 despite dropping out of the Democratic primary in hopes that voters would pick Trent Redman, a holdover from the old family lawmaster system, instead of him.

In 2000, voters passed a constitutional amendment doing away with family lawmasters, who were appointed, and replacing them with family law judges, who were elected, as part of a unified judicial system. The new family law judges would stand for their first election in 2002 for a six-year term, and again in 2008 for a full eight-year term.

Because he did not face either a primary challenger or a Republican opponent in the general election, Montgomery sailed to any easy re-election victory.

Like all family law judges, Montgomery was handed a $12,000 increase in pay last year by the state legislature, and Gov. Earl Ray Tomblin boosting his annual salary to $94,500.

Kanawha Circuit Court case number 11-MISC-542

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