725 S.E.2d 182
W. Va.2011Background
- Skidmore petitions to modify the parenting plan after birth of Joshua's half-siblings; Rogers remains custodial under 2002 plan.
- Guardian ad litem found Joshua bonded with both parents and desired more time with father and half-siblings.
- Family court denied modification, finding no substantial change in circumstance and no manifest harm to Joshua.
- Circuit court affirmed denial; this Court reverses on parenting plan but affirms modification of child support.
- Court holds two unanticipated changes post-plan—Joshua's age/maturity and half-sibling bonds—justify modification under §48-9-401(a).
- Remand for modification of parenting plan to increase Skidmore’s parenting time while maintaining health-insurance arrangement and addressing costs under §48-12-102; retroactive child support modification denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §48-9-401(a) allows modification for unanticipated changes | Skidmore: changes post-plan (age, half-siblings) undisputed are substantial | Rogers: changes anticipated and not substantial | Yes; modification warranted under §48-9-401(a) |
| Whether §48-9-401(b) “manifestly harmful” supports modification absent substantial change | Modification justified given guardian ad litem and Joshua’s preference | No manifest harm shown | Manifest Harm not required as substantial change exists; modification still proper |
| Whether the birth of half-siblings and Joshua’s age are substantial changes not anticipated | Yes, not provided for in plan; best interests require more time with father/half-siblings | No, changes anticipated and not a proper basis | Yes, both are substantial changes supporting modification |
| Whether Skidmore may carry Joshua on his health insurance | Insuring Joshua could reduce Rogers’ costs; cost-sharing reasonable | Insurance cost remains with Rogers; documentation lacking | Court denied change at hearing due to lack of documentation; remand for reconsideration with proper proof |
| Whether retroactive modification of child support is proper | Not directly at issue here; Skidmore sought expedited modification | Retroactivity generally prohibited absent specific circumstances | No retroactive increase; expedited modification timeline controls; retroactivity denied |
Key Cases Cited
- Honaker v. Burnside, 182 W.Va. 448 (1989) (visitation serves the child’s emotional well-being; not just the parent's benefit)
- State ex rel. Treadway v. McCoy, 189 W.Va. 210 (1993) (preserves important relationships in a child's life)
- White v. Williamson, 192 W.Va. 688 (1994) (visitation rights; consider non-custodial parent’s continued close relationship)
- In re Carol B., 209 W.Va. 658 (2001) (sibling bonds recognized; supports prioritizing sibling contact)
- Canady, State ex rel. Jeanne U. v., 210 W.Va. 88 (2001) (child’s age/maturity may influence custody decisions; preferences considered)