STACEY J., Petitioner v. HENRY A., Respondent
No. 18-0987
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
March 26, 2020
January 2020 Term
JUSTICE HUTCHISON dеlivered the Opinion of the Court. JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.
- “In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.” Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
- “Pursuant to
West Virginia Code § 48-9-403(d)(1) (LexisNexis 2015), if a parent who is exercising a significant majority of the custodial responsibility for a child proves that a proposed relocation is in good faith for a legitimate purpose, the location of the proposed move will be presumed to be reasonable. To overcome this presumption, the opposing parent must prove that the purpose of the move is substantially achievable without moving or by moving to a location that is substantially less disruptive of the opposing parent‘s relationship to the child.” Syl. Pt. 3, Nicole L. v. Steven W., 241 W.Va. 466, 825 S.E.2d 794 (2019). - “‘“In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.” Syl. pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).’ Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).” Syl. Pt. 2, In re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010).
- “To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.” Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).
- “For purposes of the parental relocation statute,
West Virginia Code § 48-9-1 et seq. , ‘custodial responsibility’ includes duties innate to parenthood such as those defined as caretaking functions inWest Virginia Code § 48-1-210 (LexisNexis 2015).” Syl. Pt. 2, Nicole L. v. Steven W., 241 W.Va. 466, 825 S.E.2d 794 (2019).
HUTCHISON, Justice:
The petitioner, Stacey J.1 (“Mother”), appeals the October 1, 2018, order of the Circuit Court of Mercer County affirming an order of the Family Court of Mercer County entered on August 9, 2018, that denied her
I. Facts and Procedural Background
The parties were married on December 24, 2008, and were divorced by a final order entered on January 31, 2017. During their marriage, they had two children, a son born in 2010 and a daughter born in 2012. At the time of their divorce, the parties agreed to joint legal custody and purportedly had an equal split of time with the children as both were living in Mercer County.
In August 2017, Mother filed a motion to modify the custodial arrangement alleging that as a result of Father’s work schedule, he had less time to spend with the children. The family court declined to modify the custodial arrangement at that time because Father reported that he was no longer working the night shift and had more time to care for the children. In May 2018, Mother filed another motion to modify the parenting plan because Father’s work schedule changed to the night shift again. She alleged that the children feared visiting their paternal grandparents’ home where they had to stay while they were in Father’s custody and he was working. Before a hearing could be held on that motion, Mothеr’s employment was terminated, and she filed a notice of relocation. Mother indicated that she was moving to Myrtle Beach, South Carolina, to begin new employment on July 9, 2018. She sought to modify the custodial arrangement to relocate the children to her new residence in Myrtle Beach.
The family court held hearings in July 2018 regarding the Mother’s motions for modification.2 At the first hearing, Mother, who had been employed as a certified CT technician, testified that her employment was terminated because she had injected the wrong patient with dye. At a subsequent hearing, she testified again and admitted that another reason she was fired from her job was because she “inappropriately accessed”
Savannah, Georgia. Mother testified that she accepted the position in Myrtle Beach, in part, because her parents reside just two hours away in Santee, South Carolina, and are available to help with the children when needed.
Following the hearings, the family court entered its order denying Mother’s motion to relocate the children to Myrtle Beach, designating Father as the primary residential parent, and adjusting child support obligations accordingly.4 In denying the motion to relocate, the family court first found that
requires a parent to have a percentage of custodial responsibility constituting a significant majority of time which is 70% or more. Both parents were exercising 50% of the time with the children and had been doing so for some time.
The family court then found that Mother’s reason for relocating to South Carolina was not legitimate. In that regard, the family court stated:
The Court has no doubt that the mother needs to seek alternative employment due to her intentional and negligent conduct which cost her the gainful employment she had enjoyed for over 10 years. The Court believes that her credibility has been called into serious question by her misrepresentation to the court about 1) the basis of her termination of employment; and, 2) her misrepresentation to the court about her being pregnant at the final divorce hearing in this action. The Court also believes that her intentional actions and ethiсal violations call into question the legitimacy
of this relocation. Although fault is not specifically set forth in the relocation analysis, the Court believes it goes to the heart of the legitimacy and good faith of the Petitioner’s claim.
. . . .
The Court does not believe that this relocation is legitimate and reasonable in that there were several other jobs available closer to the children’s home which would be substantially less disruptive of the father’s relationship to the children.
Finally, the family court found that it was in the children’s best interests to primarily reside in West Virginia with Father because he would “not actively seek to disparage or diminish the children’s time with [Mother].” Uрon entry of the family court’s August 9, 2018, order, Mother filed an appeal with the circuit court. Thereafter, the circuit court held a hearing and allowed the parties to present oral arguments. By order dated October 1, 2018, the circuit court denied Mother’s appeal and affirmed the family court’s order. This appeal followed.
II. Standard of Review
Our standard of review is well established. The syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), provides:
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standаrd. We review questions of law de novo.
With this standard in mind, we consider the parties’ arguments.
In this appeal, Mother primarily contends that the family court failed to conduct a proper analysis of the children’s best interests for purposes of determining where they should reside following her relocation. Under
the court shall modify the parenting plan in accordance with the child’s best interests and in accordance with the following principles:
(1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose. The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more. A relocation is for a legitimate purposе if it is to be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child’s household from significant risk of harm, to pursue a significant employment or educational opportunity or to be with one’s spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location. The relocating parent has the burden of proving of the legitimacy of any other purpose. A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a locatiоn that is substantially less disruptive of the other parent’s relationship to the child.
(2) If a relocation of the parent is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose and if neither has been exercising a significant majority of custodial responsibility for the child, the court shall reallocate custodial responsibility based on the best interest of the child, taking into account all relevant factors including the effects of the relocation on the child.
(3) If a parent does not establish that the purpose for that parent’s relocation is in good faith for a legitimate purpose into a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child’s best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation shall not be ordered if the relocating parent demonstrates that the child’s best interests would be served by the relocation.
(4) The court shall attempt to minimize impairment to a parent-child relationship caused by a parent’s relocation through alternative arrangements for the exercise of custodial responsibility appropriate to the parents’ resources and circumstances and the developmental level of the child.
In Storrie v. Simmons, 225 W.Va. 317, 325, 693 S.E.2d 70, 78 (2010), our seminal case on parent relocation, we observed that “when the factors set forth in subsection (1) [of
[p]ursuant to
West Virginia Code § 48-9-403(d)(1) (LexisNexis 2015), if a parent who is exercising a significant majority of the custodial responsibility for а child proves that a proposed relocation is in good faith for a legitimate purpose, the location of the proposed move will be presumed to be
reasonable. To overcome this presumption, the opposing parent must prove that the purpose of the move is
substantially achievable without moving or by moving to a location that is substantially less disruptive of the opposing parent’s relationship to the child.
Syl. Pt. 3, Nicole L. v. Steven W., 241 W.Va. 468, 475, 825 S.E.2d 794, 796 (2019). Under subsections (2) and (3) of
“‘in a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.’ Syl. pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).” Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).
Syl. Pt. 2, In re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010). Therefore, “[t]o justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.” Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).
Mother contends that the family court’s analysis of the best interests of the children was insufficient because no consideration was given to the evidence provided by the guardian ad litem (“GAL”) regarding the children’s close emotional bond with her and their clearly expressed desire to live with her, their half-brother, and stepfather. Mother asserts that the family court erred by focusing upon her misconduct that caused her employment to be terminated and the abuse allegations she made against Father and paternal grandfather when she obtained the DVP, noting that she only sought a DVP because it was suggested by CPS. She maintains that the family court erred by concluding that it was in the children’s best interests to reside with Father solely because the court believed that between the two of them, Father would be more likely to facilitate the children’s relationship and visitation with the other parent.
Upon review, we find merit to Mother’s argument as the family court’s order contains only one brief paragraph regarding the children’s best interests. Specifically, the family court order states:
Ultimately, the Court should decide what is in the best interest of the children. The Court finds that it is in the best interest of the child [sic] to live with a parent who will not actively seek to disparage or diminish the children’s time with the other parent. In this case the Court finds the children’s best interest will be served by designating the father as primary residential parent and attempting to maximize non-school time with the mother.
While facilitating meaningful cоntact between a parent and child is a factor to be considered, it is not the only relevant consideration in an analysis of a child’s best interests for purposes of determining custodial allocation following a parent’s relocation.
In Storrie, this Court observed that
- (1) Stability of the child;
- (2) Parental planning and agreement about the child’s custodial arrangements and upbringing;
- (3) Continuity of existing parent-child attachments;
- (4) Meaningful contact between a child and each parent;
- (5) Caretaking relationships by adults who love the child, know how to provide for the child’s needs, and who place a high priority on doing so;
- (6) Security frоm exposure to physical or emotional harm; and
- (7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty
respecting arrangements for the child’s care and control.
Id. The family court’s order gives no indication that these factors were considered. Rather, in support of the decision, the family court order only references
finding today that [Mother] is guilty of parental alienation beyond a preponderance of the evidence.” Nonetheless, the family court proceeded to conсlude that it was in the children’s best interests to primarily reside with their Father because he would be “the parent who is more likely to support a consistent relationship with the other parent.” Upon review, we find that not only did the family court erroneously rely upon a single factor in its analysis of the children’s best interests, its conclusion as to that factor is not supported by the record.
The record shows that prior to the July 2018 hearings, the GAL submitted a written report to the family court recommending that the children be allowed to relocate to South Carolina with Mother. In addition, the GAL testified at the final hearing on the matter and explained why he had concluded that the rеlocation was in the children’s best interests. He testified:
I’ve seen them at their mother’s house, at their father’s house, so I – I just set back and observed . . . and then I’ve just talked to the kids later.
But you know, they have a really close bond with their mother. They have a really close bond with their baby brother. That’s why in my report, I recommend that you allow this relocation if you felt that it was in good faith and that would be cause I know nothing about that if she applied or didn’t apply for jobs, but it was in good faith. You know, she’s telling you that she’s – she will give the father the entire summer, every other weekend, all the [school] breaks. That to me didn’t feel like someone that was trying to alienate the children from their father. That was the reason for my recommendation.
While the GAL further testified that he was now a “little hesitant” because he did not know when he submitted his written recommendation that Mother had lost her job because she wrongfully accessed medical records, he nonetheless concluded his testimony by recommending that the children be allowed to relocate with Mother and Father be given as much visitation as possible.
Notably, the GAL also testified that the relationship between Mother and Father was “pretty good”; that they “did not say nasty things about each other” to him; and that they did a “good job” of communicating about the children via text messaging. When questioned by Mothеr’s counsel about the abuse allegations against Father, the GAL testified:
Ms. Flanigan: One of the initial allegations in the DVP issued was, as I recall, an allegation that [Father] was taking inappropriate pictures of [daughter]?
Mr. Miller: Yes.
Ms. Flanigan: And you asked my client [Mother] about that, correct?
Mr. Miller: I did, yes.
Mr. Miller: That she thought that was absurd, that she didn’t think that was going on and she was shocked when she received that call.
Ms. Flanigan: Okay, and so and she was consistent in telling you that from the get go? She was defending Henry, correct?
Mr. Miller: Yes, she did.
Ms. Flanigan: Okay. Have there been other times other than today and you started seeing – seeing the two of them interact where they seemed to interact okay?
Mr. Miller: Yeah. Yes, I hаve reviewed messages between them, between the two. I mean, even when you talk to them, they – it’s not the bashing thing you’re used to seeing between parents that are involved in this type of case.
Ms. Flanigan: You were here when my client testified that Henry’s a good dad?
Mr. Miller: Yes.
Ms. Flanigan: And, I don’t recall anything – I don’t recall [Henry] saying she is a bad mom?
Mr. Miller: No, he hasn’t. I think he’s a little frustrated, understandably.
Even though the GAL’s testimony appears to contradict the family court’s finding that Mother would not facilitate the children’s relationship with Father, the family court made no findings of fact in its order to explain why the testimony was discounted. In fact, the GAL’s testimony was completely ignored in the family court’s analysis of the children’s best interests.6 Moreover, the record also shows that the family court refused to allow the GAL to give testimony regarding the children’s custodial preferences. When Mother’s counsel questioned the GAL about whether the children had indicated where they wanted to live, the family court refused to allow him to answer the question or provide any testimony on the issue, declaring “they’re not of age to state a preference.” However,
[t]his Court has previously recognized that a child’s preferences with regard to custody matters should be considered when that child’s age and maturity level so warrants, even if the child has not yet reached the age оf fourteen. See State ex rel. Jeanne U. v. Canady, 210 W.Va. 88, 96–97, 554 S.E.2d 121, 129–30 (2001) ( “While [the child] is not yet fourteen years of age, his age and maturity level should be considered, and his desires concerning visitation with his biological father must be examined.”).
Skidmore v. Rodgers, 229 W.Va. 13, 22 n.5, 725 S.E.2d 182, 191 n.5 (2011); see also
express a voluntary preference for one parent, to give that preference such weight as circumstances warrant”) (emрhasis added). In this instance, the family court refused to even permit the GAL to testify about whether the children’s maturity levels warranted consideration of their preferences.
Given all the above, we find that the family court’s order contains insufficient findings of facts and conclusions of law to support its determination that it is in the children’s best interests to primarily reside with Father. The family court failed to perform an adequate analysis because it did not consider all the relevant factors for determining whether the reallocation of custody would serve the children’s best interests. Consequently, we must reverse the final order and remand this case for a proper and thorough analysis in that regard. In doing so, we wish to make clear that we do not condone any of the misconduct on the part of Mother. Indeed, the Mother’s failure to be completely forthright with the family court regarding the reason she was terminated from her employment is inexcusable. However, it is the best interests of the children that must guide the decision of the court. To that end, all relevant factors must be considered, and the family court must make adequate findings of fact
Mother also argues in this appeal that the family court erred by initially concluding that she could not relocate with the children because she did not have custodial responsibility of the children at least seventy percent of the time. Rejecting this argument, the circuit court found the family court’s statement regarding custodial time exercised by Mother to be “slightly misguided” but not “fatal” because the family court merely considered it to be a factor in determining which subsection of
Upon review, we agree with the circuit court’s assessment of the family court’s statement inasmuch as the Mother’s motion to relocate was clearly not denied solely because of the amount of custodial responsibility she had at the time she decided to relocate. Nonetheless, we find that the family court should have undertaken an assessment of the custodial responsibility each parent was exercising to determine which statutory principle to apply under
In Nicole L., we recognized that “clarified guidance [wa]s needed as to the determination of custodial responsibility for the purposes of
For purposes of the parental relocation statute,
West Virginia Code § 48-9-1 et seq. , “custodial responsibility” includes duties innate to parenthood such as those defined as caretaking functions inWest Virginia Code § 48-1-210 (LexisNexis 2015).7
Nicole L., 241 W.Va. at 467, 825 S.E.2d at 795, syl. pt. 2 (footnote added).
In Nicole L., it was evident that the mother was exercising a significant majority of the custodial responsibility for both of her children because the record included evidence that the mother was primarily responsible for thе children’s education, transportation, medical visits, extracurricular activities, and daily care. Id. at 473-74, 825 S.E.2d at 801-02. Because no examination of caretaking functions was undertaken in this case, upon remand, the family court should consider evidence of the caretaking functions performed by the parties, holding a hearing on the issue if necessary, to calculate the proportion of each parent’s custodial responsibility for purposes of determining which provision of
Finally, Mother argues that the family court erred by finding that her decision to relocate was not in good faith and for a legitimate purpose because her employment was terminated as result of her own misconduct. She argues that fault is not a factor to be considered under
conduct, the family court misapplied the statute. We find no merit to this argument as the family court ultimately concluded that Mother’s relocation was not legitimate and reasonable because “there were several other jobs available closer to the children’s home which would be substantially less disruptive of the father’s relationship to the children.” While the family court may have disregarded Mother’s testimony concerning her efforts to find other employment closer to Father’s home based on its assessment of her credibility, such decision was a рroper exercise of the court’s discretion. See Mulugeta v. Misailidis, 239 W.Va. 404, 408-09, 801 S.E.2d 282, 286-87 (2017) (“It is within the sole province of the family court, as fact-finder, to decide issues of credibility, and this Court will not disturb those determinations. Even where testimony is uncontroverted, a fact-finder is free to disregard such testimony if it finds the evidence self-serving, and
Accordingly, for the reasons set forth above, we reverse the final order and remand this case to the circuit court with instructions to remand to the family court. The family court should reconsider Mother’s motion to modify custody based upon her relocation and make adequate findings of facts and conclusions of law regarding the children’s best interests taking into considеration all relevant factors as outlined above. In doing so, the family court should first undertake an assessment of the caretaking functions being exercised by each parent before Mother filed her motion to relocate to calculate custodial responsibility for purposes of determining which provision of
IV. Conclusion
The final order entered on October 1, 2018, is reversed, and this case is remanded to the Circuit Court of Mercer County with directions to remand to the Family Court of Mercer County for further proceedings consistent with this opinion.
Reversed and remanded with directions.