Opinion
No. 21-0253
04-26-2022
JARED M., Petitioner Below, Petitioner v. MOLLY A., Respondent Below, Respondent
J. Marty Mazezka, Esq., Charleston, West Virginia, Counsel for Petitioner Michelle L. Bechtel, Esq., Gianola, Barnum, Bechtel & Jecklin, L.C., Morgantown, West Virginia Alyson A. Dotson, Esq., Ambler & Dotson, LC, Lewisburg, West Virginia, Counsel for Respondent
J. Marty Mazezka, Esq., Charleston, West Virginia, Counsel for Petitioner
Michelle L. Bechtel, Esq., Gianola, Barnum, Bechtel & Jecklin, L.C., Morgantown, West Virginia
Alyson A. Dotson, Esq., Ambler & Dotson, LC, Lewisburg, West Virginia, Counsel for Respondent
Armstead, Justice:
The petitioner father in this matter, Jared M., filed a petition in the Family Court of Monongalia County seeking to modify a parenting plan for his daughter, E.M., due to substantial changes in circumstances. The family court denied the petition and subsequently awarded attorney fees to the respondent mother, Molly A. The Circuit Court of Monongalia County affirmed these decisions, and Jared M. filed this appeal.
In cases involving sensitive facts, we use initials to identify the parties. See W. Va. R. App. P. 40(e) [eff. 2010]; see also State v. Edward Charles L. , 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
Based on the record before us, the arguments of the parties, and the applicable law, we find that the family court's finding of no substantial change in circumstances was clearly erroneous; therefore, we reverse and remand this matter to the family court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jared M. and Molly A. share a child, E.M., who was born in February 2012. In September 2013, E.M. was diagnosed with a brain tumor, which was surgically removed. Removal of the brain tumor also entailed removing E.M.’s pituitary gland, resulting in the requirement that she be administered hormone replacement medication. As a result, her caretakers must be attentive and prepared to administer medication immediately, particularly during times of illness, stress, or elevated temperatures. Otherwise her health can deteriorate rapidly in a life-threatening manner.
Jared M. and Molly A., who were never married, ceased cohabiting in or about December 2013, and Jared M. filed a family court petition to establish custody and a parenting plan. While the case was pending, E.M.’s brain tumor returned, and in August 2014, she underwent a radioactive implant procedure. Fortunately, the tumor has not returned.
In September 2014, when E.M. was approximately two years and eight months old, Jared M. and Molly A. signed an agreed parenting plan. The parenting plan designated Molly A. as E.M.’s custodian and primary residential parent, with Jared M. having parenting time with E.M. from Wednesday morning to Thursday evening each week and every other weekend from Friday evening to Sunday evening. This arrangement meant that Molly A. had E.M. approximately seventy percent of the time during a given two-week period. Each parent also received one week of summer vacation with the child.
At the time of the September 2014 parenting plan, Jared M. was working full-time. Molly A. was unemployed and provided full-time care. The parenting plan gave Molly A. primary responsibility for coordinating and scheduling E.M.’s weekly therapies and designated Molly A. as the "primary contact" for E.M.’s medical providers. Due to E.M.’s medical condition, the parenting plan expressly required each parent, while exercising physical custody, to "be present at all times[,]" provided that the child could be left with a grandmother. No other person was to care for E.M. without the other parent's consent, and each parent had a right to babysit whenever the other parent planned to leave the child in a non-grandparent's care for more than four hours. The family court approved the parenting plan in November 2014.
In December 2017, Jared M. filed a petition to modify the parenting plan. He alleged that circumstances had changed substantially due to a number of factors, including: his job change, Molly A.’s joining the workforce, E.M.’s age and enrollment in kindergarten, and Molly A.’s regular use of babysitters other than grandmothers. Jared M. further alleged that his income had declined, that Molly A. had failed to notify him of a medical malpractice suit regarding E.M., and that the parenting plan was "not working as contemplated" and was "manifestly harmful to the child." As a result of the changes in circumstance alleged by Jared M., he stated in his petition that "[t]he Petitioner desires the parenting plan be modified to provide the Petitioner with additional quality time given the parties’ proximity to one another, the parties’ employment changes, and due to the needs of the child due to her age and maturity." Accordingly, Jared M. sought, among other things, equal parenting time, a modification of child support, and a new babysitting rule that would require the parent with physical custody who was required to be absent to allow the other parent to babysit in lieu of the grandmothers.
Specifically, Jared M. alleged, in part, as follows in his Petition and Motion to Modify Parenting Plan:
4. The parties have experienced a substantial change of circumstance as follows:
a. The Petitioner has changed job duties and is self-employed and his hours are more flexible to allow time for him with the minor child.
b. The Respondent was not employed at the time that the parties entered into the parenting plan and is now employed full time for her family.
c. The Respondent is residing in Morgantown and the Petitioner is residing in Morgantown.
d. The minor child is now school age and enrolled in kindergarten at St. Francis.
e. The child is enrolled in private school and the parties have been sharing the cost of tuition, fees, and uniforms equally.
f. Respondent has regularly allowed other people besides the grandmothers to watch the minor child including, the Respondent's boyfriend, her step-father, and a babysitter that the minor child has mentioned on several occasions.
g. The Petitioner and Respondent have been equally involved in the child's medical treatment since birth and the Petitioner is well able to care for the child and has while she was in his care.
h. The Petitioner's income has decreased due to the employment change which would warrant a change in the child support.
i. It is not clear due to the Respondent's securing of employment whether medical insurance is available to her at a reasonable cost through her employment. The Petitioner provides health insurance for the child despite being self-employed. He believes this issue needs to be addressed.
j. The Respondent has violated the shared decision making provisions of the parenting plan by filing a medical malpractice lawsuit related to the minor child's serious medical problems but did not tell or inform the Petition of the suit which he just happened to find. The Petitioner should have been notified and part of the litigation since the parties were jointly involved in the child's care since birth.
Following extensive discovery, the family court conducted an evidentiary hearing in October 2018. The hearing lasted more than seven-and-a-half hours. Jared M. presented testimony from twelve witnesses, including Jared M. and Molly A., and entered 32 exhibits into evidence. Molly A. offered only one witness, the child's pediatric endocrinologist. The family court denied Jared M.’s petition from the bench and later entered a written order.
The family court heard the endocrinologist out of order and, after hearing Jared M.’s witnesses, found that no additional witnesses were necessary.
The family court's January 2019 order finds no substantial change in circumstances due to E.M.’s additional three years of age, Molly A.’s new job, or Jared M.’s job change. Although Molly A. "was a stay-at-home mother until the child started school[,]" the court found that Molly A.’s eventual "work outside of the home" was "anticipated" due to her "need to support herself and the child." Regarding Jared M.’s job change, the court found that Jared M. remains a "full-time independent contractor who spends time in the corporate office" and that his tax returns show he "travelled 30,000 miles in 2016 and 2017[.]" Significantly, the family court also found that Jared M. had consumed "a voluminous amount of the [c]ourt's time" and dismissed a substantial number of additional arguments raised by Jared M. The family court did, however, modify the parenting plan's babysitting rule to provide that each parent must be offered the right to care for E.M. whenever the other parent is away for more than 24 hours and to include a memorandum of understanding between the parties that resulted from mediation. Subject to these modifications, the parenting plan was ratified and confirmed.
The family court arrived at three years by measuring "from the entry of the current parenting plan to the filing of the Petition for Modification...."
The family court order also memorialized the parties’ agreement to add Molly A.’s boyfriend, Jared M.’s girlfriend, and Molly A.’s stepfather to the list of approved babysitters.
In January 2019, Molly A. renewed a prior motion for attorney fees, arguing that Jared M. "acted in bad faith, wantonly[,] and for oppressive reasons." After a further hearing, the family court entered a February 2019 final modification order awarding Molly A. $5,000 in attorney fees. The family court explained that "it should have been clear to ... [Jared M.] that there was no substantial change in circumstances to warrant a modification of the parenting plan...."
See Syl. Pt. 3, Sally-Mike Properties v. Yokum , 179 W. Va. 48, 365 S.E.2d 246 (1986) ("There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.").
Jared M. separately appealed both orders to circuit court, and after consolidating the appeals, the circuit court affirmed the family court's orders ratifying and confirming the parenting plan and awarding Molly A. attorney fees in a February 26, 2021 order. According to the circuit court order, though the parenting plan made no provision for changes in employment, neither the parents’ new jobs nor "the various other changes that have taken place" are "significant enough" to warrant a modification. Regarding counsel fees, the circuit court merely recited the family court's findings and upheld the award of counsel fees without further analysis. Jared M. appeals from the circuit court's February 26, 2021 order.
The circuit court entered a cursory order affirming the family court in August 2019. On appeal, we reversed the circuit court and remanded the case for a proper order to be entered. See Jared M. v. Molly A. , No. 19-0764, 2020 WL 7233165, *1 (W. Va. Dec. 7, 2020) (memorandum decision) ("[I]n the order on appeal, the circuit court failed to set forth findings of fact and conclusions of law sufficient to allow meaningful appellate review. We, therefore, reverse the circuit court's August 1, 2019, order and remand the case to the circuit court with instructions to draft a new order setting forth findings of fact and conclusions of law sufficient for meaningful appellate review.").
II. STANDARD OF REVIEW
In this appeal, Jared M. challenges a circuit court order that affirms a family court final modification order. We have held that
[i]n 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. Pt., Carr v. Hancock , 216 W. Va. 474, 607 S.E.2d 803 (2004). With this standard of review in mind, we will consider Jared M.’s appeal.
III. ANALYSIS
Jared M. raises three assignments of error. He contends (a) that the family court erred by failing to find a substantial change in circumstances, (b) that the family court erred by failing to make any findings regarding E.M.’s best interests, and (c) that the family court erred by awarding attorney fees to Molly A. Jared M. claims, in particular, that E.M.’s advancement in age and maturity, Molly A.’s entry into the workforce, and his own job change—whether these changes are considered alone or in combination—demonstrate that a substantial change in circumstances has occurred for purposes of the modification statute. Molly A. denies these claims, but after careful review, we agree with Jared M. that a substantial change in circumstances has occurred.
Jared M.’s assignments of error improperly focus on the circuit court. See Carr, 216 W. Va. at 475, 607 S.E.2d at 804, syl. pt. ("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. " (emphasis added)). Accordingly, we have considered his assignments of error to address alleged errors at the family court level.
Jared M. also contends that E.M.’s "drastic improvement in her medical condition" and her changed "needs" operate "in conjunction with her advancement in age and maturity" to compose a substantial change in circumstances. Jared M. did not specifically cite E.M.’s improved medical condition as a distinct basis for relief in his petition before the family court. Nevertheless, because E.M.’s medical condition provides inseparable context for the parenting plan, and Jared M. requested modification of the parenting plan "due to the needs of the child due to her age and maturity[,]" (emphasis added), we deem it appropriate to consider E.M.’s medical condition in connection with Jared M.’s other alleged changes in circumstances.
A. Modification Based on a Substantial Change in Circumstances.
The applicable provision of the West Virginia Code provides that:
[e]xcept as provided in section 9-402 [§ 48-9-402] or 9-403 [§ 48-9-403], a court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated therein , that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child.
W. Va. Code § 48-9-401(a) (eff. 2001) (emphasis added). Thus, the statute establishes three criteria for change-in-circumstances modifications. First , the facts relevant to the change in circumstances must not have been "known" or "anticipated" in the order that established the parenting plan. Ibid. Second , the change in circumstances, whether "of the child or of one or both parents[,]" must be "substantial[.]" Ibid. Third , the modification must be "necessary to serve the best interests of the child." Ibid.
B. Changes Not Anticipated in the Parenting Plan.
Jared M.’s petition to the family court identified his own job change, Molly A.’s entry to the workforce, and E.M.’s increased age and enrollment in kindergarten as changed circumstances, yet the family court order only addressed whether Molly A.’s new employment was anticipated. On this point, the family court found that "[i]t was anticipated that ... [Molly A.] would begin to work outside of the home in the future because she would need to support herself and the child." (Emphasis added.) According to the family court, Jared M. and Molly A.’s father "could not be expected" to "support [her] the rest of her life."
The family court appears to have determined that no analysis was necessary because Jared M.’s job change and E.M.’s increased age were not "significant[.]"
Regardless of whether these assumptions about Molly A.’s eventual need for employment ultimately proved to be correct, such assumptions were not addressed in the original parenting plan. "[U]nder the plain meaning of the statute, the relevant question is not whether a particular change in circumstance could have been anticipated, but whether the parenting plan actually did anticipate, and provide accommodation for, the particular change." Skidmore v. Rogers , 229 W. Va. 13, 21, 725 S.E.2d 182, 190 (2011). "The phrase ‘not anticipated therein’ does not mean that the change in circumstance could not have been anticipated generally, but rather that the parenting plan order does not make provisions for such a change." Ibid. Indeed, we have stated that "[w]hether ... a change in circumstance could have been anticipated when the original parenting plan order was entered is of no consequence." Ibid.
In this case, the parenting plan sought to be modified makes no provision for the changes in circumstances identified by Jared M. It does not say, for example, what happens if Jared M. acquires a new job that affords him more (or less) flexibility to care for E.M. Nor does it say what happens if Molly A. begins working outside the home. The parenting plan is silent on these matters despite allocating to Molly A. primary responsibility for the "coordination and scheduling of the child's weekly therapies." (Emphasis added.) Similarly, the parenting plan does suggest that adjustments will occur at any stage of E.M.’s life. Accordingly, we find that the parenting plan did not provide for Jared M.’s job change, Molly A.’s entry to the workforce, or E.M.’s increased age and maturity. Accordingly, such changes were not "anticipated" in the parenting plan as that term is used in W. Va. Code § 48-9-401(a).
We note that the parenting plan contains boilerplate language about such things as unexpected days home from school, communication regarding educational needs and performance, equal access to educational records, and cooperation regarding school and social commitments. However, the parenting plan also contains the following detailed language, crafted by the parties for their unique circumstances:
Due to the child's medical condition, the parent in whose physical custody the child is in shall be present at all times. The first baby sitter rule shall apply. However, the child may be left in the physical care and custody of the child's maternal grandmother, paternal grandmother, or step-grandmother ..., without notice to the other party. The other party must be contacted to care for the child if either parent will be absent from the child for a period of more than four (4) hours, unless the child is left in the physical care and custody of the child's maternal grandmother, paternal grandmother or step-grandmother. The parties expressly agree that no other person shall provide care for the child, other than her grandmothers, without the approval of the other parent.
(Emphasis added.)
C. Changes Alleged Were Substantial.
Because we find that these changes were not "anticipated" in the parenting plan, the question becomes whether these changes amount to "a substantial change ... in the circumstances of the child or of one or both parents...." Ibid. We find that a substantial change in circumstances has occurred.
Any analysis of the parties’ circumstances must begin with E.M.’s unique health conditions and history. When the parties signed the parenting plan in September 2014, only a year had passed since E.M. had experienced life-altering surgery for a brain tumor. In August 2014—the month before the parties signed the parenting plan—E.M.’s brain tumor had returned, and a radioactive implant had been utilized. In the years since then, however, E.M.’s brain tumor has not recurred. Though she remains "medically fragile" and requires attentive and informed caregivers, in the words of her doctor, she "does well and looks completely normal when she is healthy, which she usually is [.]" (Emphasis added.) As a result, E.M. is able to participate in ordinary childhood activities like boating and swimming and going to school, the beach, or a football game.
E.M.’s medical history lends particular significance to the fact that E.M. was less than three years old when the parties agreed to the parenting plan. As we have previously observed, "children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults...." Syl. Pt. 1, in part, In re R. J. M. , 164 W. Va. 496, 266 S.E.2d 114 (1980). Close interaction and full commitment were particularly vital for E.M. because her medical conditions required careful monitoring and because, as a two-year-old, she would not likely have had the verbal skills, or perhaps even the self-awareness, to communicate how she was feeling—at least not to the same degree as a school-aged child. Though only four years had passed between the 2014 signing of the parenting plan and the 2018 evidentiary hearing before the family court, those were consequential years for E.M. She began those four years as a toddler and emerged from them as a first-grader. Certainly, "the advance in a child's age will [not] necessarily constitute a basis for a modification of a parenting plan order in all cases." Skidmore , 229 W.Va. at 22 n.3, 725 S.E.2d at 191 n.3. This "is a case specific question...." Ibid. However, we find that on these facts, and for this child, four years of time and childhood development, combined with the improvement in her medical condition, represented "a substantial change ... in the circumstances of the child" for purposes of West Virginia Code § 48-9-401(a) and that the family court committed clear error when it determined otherwise.
For similar reasons, we believe that Molly A.’s transition from stay-at-home mother to an employee who travels out-of-town to work, and occasionally for work, also represents a substantial change in circumstances. In 2014, E.M.’s tender age and fragile health made it logical for the parties to allocate the vast majority of parenting time to the parent who could devote her full time and attention to the child and to severely limit the identity of persons who could care for the child in either parent's absence. Plainly, this arrangement was in E.M.’s best interest. According to E.M.’s doctor, Molly A. is
an extremely careful and conscientious mother, who is attuned to the needs of her child, and is able to detect even subtle changes in her behavior, which may herald an impending illness. Thanks to the constant interaction with [E.M.] for the last few years, and the close attention she has paid to [E.M.]’s behavior and reactions to sickness, Ms. [A.] has developed the expertise and the unique ability to recognize [E.M.]’s clinical deterioration at a very early stage of an illness, which has been and is an invaluable asset in the care of her daughter.
Molly A.’s special competence as a caregiver, while extremely important to the well-being of E.M., became less relevant when E.M. began school and Molly A. accepted employment at her father's company. Now, instead of spending her day caring for E.M., Molly A. commutes to work from Morgantown to Bridgeport and attends to matters relevant to her job. On at least one occasion, she has even traveled overseas for her work. Thus, while the evidence reflects that Molly A. gives E.M. significant care and attention, E.M. no longer receives her mother's care on a full-time basis in the same manner that she did before E.M. started school and Molly A. began working full-time. Indeed, such close attention from her mother (or a grandmother) no longer seems necessary to the same degree due to the fact that E.M. now attends school and sometimes remains at school for an extra hour of the day in an after-school program. Conversely, the evidence reflected that Jared M.’s work schedule changed in a manner that allowed him more flexibility. When the parenting plan was signed, Jared M. worked three or four days per week in the office from approximately 8:00 a.m. until approximately 5:00 p.m. Now, though he continues to work full time and still goes into the office, he testified that his hours are more flexible. Indeed, his boss testified that Jared M. sets his own schedule. Additionally, the company Jared M. works for moved its headquarters to Morgantown in April 2018, which allows Jared M. to be in the vicinity of E.M.’s school, even when he is at the office. This change in circumstances related to Molly A.’s work schedule, combined with a change in the job duties and work schedule of Jared M., represent a significant change in circumstances.
Our discussion of this change in circumstances should not in any way be read as a negative reflection on Molly A.’s decision to work outside the home, nor are we suggesting that E.M.’s school attendance or participation in an after-school program is somehow unreasonable. See W. Va. Code § 48-9-401(c) ("Unless the parents have agreed otherwise, the following circumstances do not justify a significant modification of a parenting plan except where harm to the child is shown: ... [c]hoice of reasonable caretaking arrangements for the child by a legal parent, including the child's placement in day care." (emphasis added)).
Based upon on these facts and for this child, the positive and encouraging improvement to E.M.’s health and her resulting ability to attend school, combined with the modifications in work schedules of both Molly A. and Jared M., constitute a substantial change in circumstances. The family court committed clear error when it found to the contrary.
D. Best Interests of the Child and Counsel Fees.
The third question under W. Va. Code § 48-9-401(a) is whether "a modification is necessary to serve the best interests of the child." The family court never reached this stage of the analysis because it found no substantial change in circumstances. Indeed, the family court awarded counsel fees to Molly A. because it found that the absence of a substantial change in circumstances "should have been clear to" Jared M. Because we find that a substantial change in circumstances has occurred, we also find that the family court erred both by failing to decide whether further modification of the parenting plan was necessary for the child's best interests and by awarding counsel fees to Molly A. Accordingly, upon remand of this matter to the circuit court, we direct the circuit court to conduct an analysis of whether the substantial change of circumstances present in this case renders a modification of the parenting plan necessary to serve the best interests of E.M., and to make appropriate findings regarding such analysis.
As Molly A. points out, the family court made some minor modifications to the parenting plan and found that the parenting plan, "as modified above, is in the best interests of the child." Those modifications, however, were made pursuant to West Virginia Code § 48-9-402(b)(2) (eff. 2001) (authorizing "a minor modification" without showing changed circumstances). On appeal, Jared M. challenges the family court's refusal to award a change-in-circumstances modification under West Virginia Code § 48-9-401(a), which imposes its own best-interests analysis.
IV. CONCLUSION
Based on the foregoing, we reverse the circuit court's February 26, 2021 order affirming the family court, and we remand this case to the family court for further proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE ALAN D. MOATS, sitting by temporary assignment.
CHIEF JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file dissenting Opinions.
Hutchison, Chief Justice, dissenting:
Instead of affording deference to the family court's findings of fact and application of the law to the facts, the majority has re-weighed the evidence to find that there was a substantial change in circumstances. This is contrary to our Court's role on appeal. Moreover, the majority is rendering its findings without the respondent even having the opportunity to present all of her evidence, in clear violation of the respondent's due process right to be heard.
The blackletter law of our Court, cited in hundreds of opinions and memorandum decisions, is that an appellate "court may not overturn a finding simply because it would have decided the case differently[.]" Syl. Pt. 1, in part, In Re Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996). Rather, the reviewing court "must affirm a finding" if the lower court's "account of the evidence is plausible in light of the record viewed in its entirety." Id. This principle is encompassed in our standard of review for family law cases: "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." Syl., in part, Carr v. Hancock , 216 W. Va. 474, 607 S.E.2d 803 (2004). The family court judge was familiar with this child and parents, heard and observed the witness testimony, considered the documentary evidence, and was in the best position to serve as the factfinder and to weigh the evidence in this matter. There is nothing in the family court's ruling that is clearly erroneous or constitutes an abuse of discretion.
At the end of the petitioner's case-in-chief, the family court provided a lengthy explanation of why the petitioner had not met his burden of proving a substantial change in circumstances warranting a modification of the parenting plan. The judge spent several minutes explaining her findings and addressing each of the issues that the petitioner raised, and these findings were later incorporated into a written order. The family court decided that any changes were not significant enough to warrant modification of the parenting plan.
Necessary prerequisites for modification of a parenting plan pursuant to West Virginia Code § 48-9-401(a) (2001) include that there must be a "substantial change ... in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child."
Despite the fact the petitioner never sought a modification of the parenting plan because of the improvement in his child's medical condition, the majority ignores this fact, finding that it is "appropriate to consider [the child's] medical condition in connection with [the petitioner's] other alleged changes in circumstances." Further, the majority takes on the role of a trier of fact when it makes the following factual finding:
we find on these facts, and for this child, four years of time and childhood development, combined with the improvement in her medical condition, represented "a substantial change .. in circumstances of the child" for the purposes of West Virginia Code § 48-9-401(a) and that the family court committed clear error when it determined otherwise.
Again, the petitioner never asked for (and the family court never made) such a determination in regard to the child's medical condition. Consequently, it is unclear why the majority feels compelled to engage in an analysis of the child's medical condition in its determination that there was a substantial change of circumstances as a matter of law. Moreover, it is unclear just what determination the family court made in this regard that the majority finds to be clear error.
Neither party had a transcript of the family court hearing prepared, but a video recording of the lengthy hearing is included in the appendix record on appeal.
The family court also noted that "[t]he Petitioner spent a voluminous amount of the Court's time presenting his case to prove that a substantial change in circumstances ha[d] occurred."
The family court began by observing that the parenting plan had only been in place for three years when the petitioner moved to modify it. The court found that the three-year increase in E.M.’s age was not a substantial change. The child was still very young, having just entered Kindergarten. The majority rejects this finding by boldly saying, "we find that on these facts, and for this child, four years of time and childhood development, combined with the improvement in her medical condition, represent[s]" a substantial change. Not only is the majority erroneously stepping into the role of factfinder, but the petitioner's written petition for modification never claimed that the child's improved medical condition was grounds for modification. The petitioner also did not present any medical evidence to support such an assertion. The child's doctor was a witness for the respondent, not for the petitioner, and the doctor testified about E.M.’s ongoing "fragile" medical condition and the need for careful attention to her health and medication dosing.
Jared M. v. Molly A. , ––– W. Va. ––––, ––– S.E.2d ––––, 2022 WL 1223621 (2022), slip op. at 12. The majority's statement about "four years" is a reference to the date of the evidentiary hearing, instead of the date the petition for modification was filed.
On the petitioner's first appeal of this case, we remanded with instructions to the circuit court that it entered a new order containing findings of fact and conclusions of law sufficient to allow a meaningful review. See Jared M. v. Molly A. , 2020 WL 7233165 (W. Va. filed Dec. 7, 2020) (memorandum decision). Upon remand, the circuit court entered a detailed eight-page order, which forms the basis for the instant appeal.
Next, the family court rejected the notion that either of the parents’ jobs constituted an unanticipated event or a substantial change in circumstances. The court noted that the respondent waited until E.M. started full-time Kindergarten before accepting a job at a company owned by her father. The court found that when the current parenting plan was entered, the parties had obviously anticipated that the respondent would become employed at some point in time because of the need to support herself. The parties were never married, thus the petitioner does not pay the respondent any spousal support, and the respondent must have a source of income to support herself and provide for the child. Although the petitioner argued that the respondent worked overtime to the detriment of the child, the family court rejected this assertion by finding that the overtime was minimal and might have been worked early in the morning (presumably when the child was already at school). Moreover, the evidence showed that E.M. missed many days of Kindergarten because of her medical condition, with the respondent providing and arranging for care on those days just like she did when she was a stay-at-home parent before the child started school. After considering the facts and argument presented by the petitioner, the family court determined that the respondent's acceptance of employment when E.M. started school did not constitute a substantial change in circumstances for this child. There is simply no error or abuse of discretion in that determination.
As to the petitioner's change in employment, the family court expressly rejected the argument that he now has more flexibility and more time to spend with the child. The family court pointed to evidence that the petitioner is still working full-time and still spending time in the corporate office, just like he was doing when the current parenting plan was adopted, and that he travels extensively for work. According to his tax returns, the petitioner traveled 30,000 miles for work in 2016 and 2017. As with the family court's other findings, there is no clear error or abuse of discretion.
Although not the focus of the majority's opinion, the family court also soundly rejected other issues raised by the petitioner. For example, the petitioner argued that the respondent provided the school with information about the child without including him. However, the family court noted that the petitioner could have taken responsibility for educating school personnel about E.M.’s medical needs, but he did not. The petitioner also claimed to not know about a medical malpractice lawsuit pursued on behalf of the child, but he had co-signed the representation agreement to hire the lawyer. The family court found that the petitioner's decision to attend the child's doctor's appointments was not a substantial change in circumstances, rather, he always had the right to attend appointments per the parenting plan. The court dismissed other issues raised by the petitioner in a failed effort to make the respondent out to be a bad mother, including a single mix-up in communicating a change in medication dosage and that the child received a bad grade on a butterfly picture assignment in Kindergarten.
I further question the majority "find[ing] that the family court erred ... by failing to decide whether further modification of the parenting plan was necessary for the child's best interests...." See W. Va. Code § 48-9-401(a). Given that the family court did not find any substantial change in circumstances warranting a modification of the parenting plan, a "best interests" analysis was unnecessary. The majority correctly acknowledges this fact, but goes on to find error in the family court's failure to decide the best interests component. The need to find error in this regard was avoidable. In light of the majority's determination that a substantial change in circumstances was supported by the evidence, all it had to do was remand the case for a "best interests" determination in accordance with West Virginia Code § 48-9-401(a).
"[I]n general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the circuit court makes a serious mistake in weighing them." Shafer v. Kings Tire Service, Inc. , 215 W. Va. 169, 177, 597 S.E.2d 302, 310 (2004) (quoting Gentry v. Mangum , 195 W. Va. 512, 520 n. 6, 466 S.E.2d 171, 179 n. 6 (1995) ) (other citation omitted). The family court did not ignore any proper factor, did not rely on any improper factor, and did not make a serious mistake in weighing the evidence. Rather, the majority of this Court has re-weighed the evidence and substituted its own judgment on the facts and the application of the law to the facts.
The majority's error in this case is magnified by the fact that the respondent was not given the opportunity to present all of her evidence at the family court's evidentiary hearing. At the conclusion of the petitioner's case-in-chief, the family court determined that the petitioner had not met his burden of proof and proceeded to rule. The respondent had been permitted to present the testimony of one of her witnesses, the child's doctor, early due to the doctor's scheduling conflict—but the respondent did not present the rest of her case-in-chief. Despite the lack of evidence from the respondent, the majority has definitively decided that there was a substantial change in circumstances.
The remand ordered by the majority is for the purpose of addressing the next step in the statutory analysis, i.e., whether modification is necessary to serve the best interests of the child. See Jared M. , ––– W. Va. at ––––, ––– S.E.2d at ––––, slip op. at 15. It is not for further consideration of the question of whether there was a substantial change in circumstances. Id.
The right to present evidence on one's own behalf is guaranteed by the Fourteenth Amendment to the United States Constitution and Article III, § 10 of the West Virginia Constitution. "The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard. " Syl. Pt. 2, Simpson v. Stanton , 119 W. Va. 235, 193 S.E. 64 (1937) (emphasis added). See, e.g. , State ex rel. Bd. of Educ. of Cty. of Putnam v. Beane , 224 W. Va. 31, 35, 680 S.E.2d 46, 50 (2009) ("The most fundamental due process protections are notice and an opportunity to be heard."); Litten v. Peer , 156 W. Va. 791, 799, 197 S.E.2d 322, 328 (1973) ("It has always been the policy of this Court to protect each litigant's day in court."). Accordingly, even if the majority is correct that a reversal and remand are required in this case, then the case should be reversed and remanded on all issues, including the question of whether there was a substantial change in circumstances.
For these reasons, I respectfully dissent.
WOOTON, Justice, dissenting:
In this case, the majority reverses and remands the case to the family court, "find[ing] that the family court's finding of no substantial change in circumstances was clearly erroneous[.]" I disagree with the majority's decision; under our established standard of review this case should be affirmed. Therefore, I respectfully dissent.
At its core, this case is easily resolved by applying the sole syllabus point relied upon by the majority – the standard of review:
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).
The issue is whether the facts constitute a substantial change in circumstances that would warrant a modification of the parenting plan entered into between two unmarried parents. Therefore, resolution of this issue concerns the application of the law to the facts presented, which means the family court's decision is reviewed under an abuse of discretion standard. See id. In this regard, the Court has previously stated that
"we will not disturb a ... court's decision unless the ... court makes a clear error of judgment or exceeds the bound of permissible choices in the circumstances." Wells v. Key Commc'ns, L.L.C. , 226 W.Va. 547, 551, 703 S.E.2d 518, 522 (2010) (citation omitted). This Court has also observed that "[i]n general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the ... court makes a serious mistake in weighing them." Shafer v. Kings Tire Serv., Inc. , 215 W.Va. 169, 177, 597 S.E.2d 302, 310 (2004) (citation omitted). This Court has also invariably stated that "[u]nder abuse of discretion review, we do not substitute our judgment for the circuit court's." State v. Taylor , 215 W.Va. 74, 83, 593 S.E.2d 645, 654 (2004) (Davis, J., dissenting) (citing Burdette v. Maust Coal & Coke Corp. , 159 W.Va. 335, 342, 222 S.E.2d 293, 297 (1976) ). Thus, a family court's decision is entitled to significant deference. Absent an abuse of discretion, this Court must refrain from substituting its judgment for that of the family court, even if this Court might have decided a case differently.
Amanda A. v. Kevin T. , 232 W. Va. 237, 244-45, 751 S.E.2d 757, 764-65 (2013) (emphasis added).
In order for a parenting plan to be modified, the law requires that the following burden of proof be met:
West Virginia Code § 48-9-401(a) (2009) permits a court to modify a parenting plan order on the basis of a substantial change in circumstance that arises after the parenting plan order is entered if such change was not provided for in the parenting plan and modification is necessary to serve the best interests of the child.
Syl. Pt. 3, Skidmore v. Rogers , 229 W. Va. 13, 725 S.E.2d 182 (2011). Thus, under the above-referenced statute, a parent seeking modification of a parenting plan must produce evidence of the following in order to be successful: (1) a substantial change in circumstance, and (2) modification must be in the best interests of the child. See id.
The grounds for the petitioner, Jared M.’s, petition and motion seeking to modify the parenting plan were solely focused on employment – both the petitioner's and the respondent Molly A.’s. Significantly, the petitioner's reliance on his change in employment appeared to be targeted at reducing his child support obligation. The petitioner did not list the "child's improved health" as one of the alleged substantial changes justifying modification, which explains why the family court's order did not go into the child's health in any great detail. At the family court hearing, which lasted some seven and one-half hours, the petitioner testified, produced eleven witnesses, and thirty-two exhibits. The respondent called a single witness to testify, the child's pediatric endocrinologist.1
In a very detailed order the family court made specific findings which included the fact that the respondent had begun to work outside the home. Specifically, the family court found that
[t]he parties were never married. It was anticipated that the Respondent would begin to work outside of the home in the future because she would need to support herself and the child. It could not be expected that Petitioner and Respondent's father would support Respondent the rest of her life. The Court does not believe that, and the Court does not believe Respondent's starting work when the child started school is a significant change of circumstances.
Further, the family court found that the petitioner's change in employment was not a significant change in circumstances. In this regard, the family court found that the petitioner "is a full-time independent contractor who spends time in the corporate office. The Petitioner travelled 30,000 miles in 2016 and 2017 ... which is significant travel time." Thus, the family court determined that the petitioner's new job was not a significant change from his prior job where he worked in the office three to four days a week, in terms of time spent away from the home. Further, the family court found that the petitioner's evidence that he was a "good father" failed to constitute a change in circumstances, and that there was "insufficient evidence that Respondent worked significant overtime that would impact her ability to care for the child." The family court also considered evidence from the child's medical doctor, who testified that he could not opine "as to the Petitioner's caretaking skills for a medically fragile child[,]" because he had had limited interaction with the petitioner. In this same vein, the doctor also testified that the six-year-old child is medically fragile, requires medicines throughout the day, has restrictions on activities, and could take a quick turn for the worse. Finally, the family court also rejected the petitioner's attempt to show that the respondent was a bad parent. In this regard, the family court found the petitioner's assertion that "a substantial change in circumstances occurred because the child receiv[ed] a failing grade on a butterfly picture test in Kindergarten," to be without merit.2
Having heard and considered all the evidence offered in support of the petitioner's position first hand, the family court concluded that the petitioner had failed to prove that a substantial change of circumstance warranting a modification of the parenting plan had occurred, although it did make a minor change to the parenting plan in regard to the "first babysitter" provision. The court also found that the respondent was entitled to attorney fees and ordered the petitioner to pay $5,000 for attorney fees.
On appeal, the circuit court affirmed the family court's decision.3 In so doing, the circuit court found that its
review of the October 26, 2018, hearing supports the Family Court's ruling that [the petitioner's] evidence and witnesses emphasized that he is good parent, but did not support and further his burden to prove that a substantial change in circumstances has occurred during the intervening three-year time period [since the original parenting plan was put in place.]
Under this Court's precedent, the family court's decision is entitled to significant deference. Accordingly, absent an abuse of discretion, the majority should have refrained from substituting its judgment for that of the family court, even if the majority would have decided the case differently. Amanda A. v. Kevin T. , 232 W. Va. 237, 244-45, 751 S.E.2d 757, 764-65 (2013). However, it appears that the majority has deviated from our established standard of review. More precisely, the majority assumed the role of factfinder and, upon re-examination and reweighing the evidence, substituted its judgment for that of the family court and concluded that a substantial change in circumstances existed.4 In light of the fact that there is no abuse of discretion apparent from the appendix record, the family court's and circuit court's decisions should have been affirmed.
For the foregoing reasons, I respectfully dissent.