248 W.Va. 130
W. Va. Ct. App.2022Background
- Amanda C. (mother) and Christopher P. (father) lived together until 2018; father filed for custodial allocation and support on Feb. 1, 2021.
- Temporary order (May 29, 2021) granted 50/50 custody and joint decision-making; final hearing originally set for Jan. 2022 and rescheduled to May 11, 2022.
- Petitioner’s counsel filed a written scheduling-conflict notice (May 2, 2022); the Family Court found the notice untimely but nevertheless proceeded with the May 11 final hearing after petitioner and her counsel did not appear.
- Family Court issued a final order (signed July 5, entered July 8, 2022) awarding primary custody and sole decision-making to the father, relying on West Virginia Code § 48-9-206 (2020).
- The relevant statute (§ 48-9-206) had been substantively amended in 2021 and again in 2022 (the 2022 amendments effective June 10, 2022), which add factors and create a rebuttable presumption favoring 50/50 allocation.
- The West Virginia Supreme Court held the Family Court committed plain error by applying the 2020 statute instead of the operative 2022 version, treated the July 8 order as temporary, and remanded for a new evidentiary hearing under § 48-9-206 (2022).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Family Court abused discretion by holding final hearing without petitioner present after notice of scheduling conflict | Amanda argued the court should have continued the hearing under Trial Court Rules to resolve conflicts and not proceed without her or counsel | Christopher argued the hearing could proceed as scheduled and the court properly resolved inter-court conflicts | Court declined to decide this assignment of error because it found a dispositive plain error in applying the wrong statute |
| Which version of WV Code § 48-9-206 applied to the final order | Amanda argued the later statutory amendments (2021/2022) applied to pending cases and should govern the allocation analysis | Christopher relied (implicitly) on the earlier 2020 statute used by the Family Court | Court held the 2022 amendments were operative for orders entered after June 10, 2022, and thus the Family Court erred in applying the 2020 version |
| Whether the Family Court’s error amounts to "plain error" warranting appellate intervention | Amanda asserted the error affected substantial rights and fairness of proceedings | Christopher likely contended any error was not plain or did not materially affect outcome | Court applied plain error doctrine and found an obvious, substantive error that affected parties’ rights and the fairness/integrity of proceedings |
| Remedy for applying the inoperative statute | Amanda sought reversal or remand for application of the correct statute and a new hearing | Christopher argued the order should stand (or otherwise did not contest remand) | Court vacated the final allocation as not final (deemed it temporary), remanded for an evidentiary hearing under § 48-9-206 (2022), and directed issuance of mandate |
Key Cases Cited
- Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004) (standard of review: facts clearly erroneous; legal questions de novo; law-application abuse of discretion)
- Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995) (explains when appellate court may find abuse of discretion)
- Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996) (plain error doctrine elements)
- Martinez v. Asplundh Tree Expert Co., 239 W. Va. 612, 803 S.E.2d 582 (2017) (statutory amendments applied as Legislature directs)
- Miller v. Smith, 229 W. Va. 478, 729 S.E.2d 800 (2012) (recognizes substantive statutory changes affect parties' rights)