Jonathon F. v. Rebekah L.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
2023 January Term February 14, 2023
_____________________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
No. 22-ICA-45 OF WEST VIRGINIA

__________________________

JONATHON F.,
Petitioner Below, Petitioner

v.

REBEKAH L.,
Respondent Below, Respondent
________________________________________________________________________
Appeal from the Family Court of Greenbrier County
Honorable David M. Sanders, Judge
Civil Action No. 19-D-244
REMANDED WITH DIRECTIONS
________________________________________________________________________

Submitted: January 11, 2023
Filed: February 14, 2023
John H. Bryan, Esq. Christine Stump, Esq.
Union, West Virginia Lewisburg, West Virginia
Counsel for Petitioner Counsel for Respondent

Amber Hinkle, Esq.
Taylor & Hinkle, Attorneys at Law
Beckley, West Virginia
Guardian Ad Litem

CHIEF JUDGE GREEAR delivered the Opinion of the Court
GREEAR, Chief Judge:
Petitioner Jonathon F. (“Father”) appeals the July 21, 2022, final order entered by

the Family Court of Greenbrier County, which granted the parties shared custodial rights

of the minor child, H.L. 1 On appeal, Father argues that the family court erred in failing to

provide the parties equal (50-50) custodial time and in failing to make specific findings of

fact and conclusions of law.

We find that the final order failed to properly apply the law governing the allocation

of custodial responsibilities between the parties and failed to provide sufficient findings of

fact and conclusions of law to support its ruling. West Virginia Code § 48-9-206(a) (2022)

was the applicable law at the time of the final hearing and the entry of the final order. This

statute presumes equal (50-50) parenting time for both parents unless the parties agree

otherwise. This presumption may be rebutted if the family court finds by a preponderance

of the evidence that the arrangement would be harmful to the child, or a provision of West

Virginia Code § 48-9-209(f) (2022) requires a different custodial allocation. West Virginia

Code § 48-9-206(d) requires that a determination of custodial allocation in a final

permanent parenting plan order be based on the presentation of evidence and include

specific findings of fact and conclusions of law supporting the determination.

1
Consistent with our practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in the case. See W. Va. R. App. P.
40(e)(1); Amanda C. v. Christopher P., No. 22-ICA-2, ____ W. Va. ____, ____ S.E.2d
____, 2022 WL 17098574 (Ct. App. 2022).
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Accordingly, we convert the July 21, 2022, final order to a temporary custodial

allocation order and remand this case back to the Family Court of Greenbrier County with

instructions to hold an evidentiary hearing and make specific findings of fact and

conclusions of law to support its decision.

I. FACTUAL AND PROCEDURAL BACKGROUND
The parties are the biological parents of H.L. 2 On December 18, 2019, Father filed

the underlying petition requesting a determination of custodial allocation and support. The

primary issue considered under this petition was the custodial parenting plan for H.L.

On January 2, 2020, Respondent Rebekah L. (“Mother”) filed an answer and

disputed paternity. On August 3, 2020, the family court entered an order directing paternity

testing, which confirmed Petitioner to be H.L.’s biological father. A temporary order was

entered by the court on September 17, 2020, which designated Mother as the custodial

parent and denied Father any contact with the child. From September 17, 2020, to July 13,

2022, multiple hearings regarding custody were held and Father’s visitation with H.L.

gradually increased. On July 13, 2022, the court held a final hearing on custodial allocation.

The court proceeded based on proffers from the parties, their counsel, and the guardian ad

litem. Without taking evidence, the court noted its agreement with the recommendations

2
The parties were never married.

2
in the third supplemental report of the guardian ad litem and announced its decision

regarding custodial allocation of parenting time contained in the final order.

This allocation provided Mother with primary custody of H.L. and provided Father

significant custodial parenting time. However, the order on its face is not equal (50-50)

parenting time. It is from this order the father appeals.

II. STANDARD OF REVIEW
The parameters of appellate review of family court orders are well-settled:

[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); see also Amanda C. v.

Christopher P., No. 22-ICA-2, ____ W. Va. ____, ____ S.E.2d ____, 2022 WL 17098574

(Ct. App. 2022).

“Questions relating to alimony and to the maintenance and custody of the children

are within the sound discretion of the court and its action with respect to such matters will

not be disturbed on appeal unless it clearly appears that such discretion has been abused.”

Syl. Pt., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). The appellate court

may reverse for abuse of discretion if “a material factor deserving significant weight is

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ignored, when an improper factor is relied upon, or when all proper and no improper factors

are assessed but the [lower court] makes a serious mistake in weighing them.” Gentry v.

Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). Thus, an appellate

court “will not simply rubber stamp the trial court’s decision when reviewing for an abuse

of discretion[.]” State v, Hedrick, 204 W. Va. 547, 533, 514 S.E.2d 397, 403 (1999). With

these standards in mind, we consider the issue raised on appeal.

III. DISCUSSION
On appeal, Father asserts two assignments of error. First, Father argues that the

family court abused its discretion when it failed to apply the presumption of equal (50-50)

parenting time, as required by West Virginia Code § 48-9-206(a). Second, Father contends

that the family court failed to make specific findings of fact and conclusions of law

justifying its departure from the equal (50-50) presumption as required by West Virginia

Code § 48-9-206(d). After a review of the record and applicable law, we find that the family

court’s final order fails to comply with the requirements of West Virginia Code § 48-9-

206(d). 3

West Virginia Code § 48-9-206(a) presumes equal (50-50) custodial allocation of

parenting time unless otherwise resolved by agreement of the parties. However, the family

3
During oral argument, counsel for Mother conceded the final order’s lack of
specific findings of fact and conclusions of law as required by West Virginia Code § 48-9-
206(d).

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court may deviate from equal custodial time if the court expressly finds that the

arrangement would be harmful to the child or that a provision of West Virginia Code § 48-

9-209(f) necessitates another arrangement. 4 Regardless of the presumption, absent an

agreement of the parties, the family court must set out specific findings of fact and

conclusions of law in its final order pursuant to West Virginia Code § 48-9-206(d).

Here, the family court failed to make specific findings of fact and conclusions of

law to allow meaningful appellate review. In its July 21, 2022, order, the family court

simply stated, “the third and last [guardian ad litem] report contained recommendations

that the court believes to be in the best interest of the child.” The court provided no other

explanation for its ruling.

The Supreme Court of Appeals of West Virginia has remanded such wholly

insufficient orders finding that:

to properly review an order of a family court, the order must
be sufficient to indicate the factual and legal basis for the
family court’s ultimate conclusion so as to facilitate a
meaningful review of the issues presented. Where the lower
tribunals fail to meet this standard—i.e. making only general,
conclusory or inexact findings—we must vacate the judgment
and remand the case for further findings and development.

Collisi v. Collisi, 231 W. Va. 359, 363–64, 745 S.E.2d 250, 254–55 (2013).

4
West Virginia Code § 48-9-102a (2022) provides a rebuttable presumption that
equal (50-50) custodial allocation is in the best interest of the child.
5
The final order does not appear on its face to allocate equal (50-50) parenting time.

In the briefs presented, Mother asserts that Father will receive 170 overnights of custody,

while the guardian ad litem calculates this number at 175 overnights. Mother and the

guardian ad litem both contend that equal (50-50) parenting time does not mean that each

party receive exactly 182.5 overnights. They argue that roughly 175 overnights of

parenting time falls within the meaning of equal (50-50) parenting time. To support this

contention, they argue that Father will have custody of the child during the day for more

than 182.5 days, thus making up for the lack of equal overnights. However, findings of fact

and conclusions of law are required to explain whether or how this arrangement, which

seems unequal on its face, constitutes an equal (50-50) custodial allocation.

Mother urges this Court to find that 175 overnights is “close enough,” when

combined with custodial time during the day, to be an equal (50-50) allocation of parenting

time. This arrangement would result in a fifteen-night difference of overnights per year, or

225-overnights difference throughout H.L.’s childhood. Similarly, the disparity in

parenting time during the daylight hours awarded to each parent under the court’s

allocation will correspondently increase. This Court cannot adopt the position of Mother

and the guardian ad litem—that such an allocation is equal (50-50) parenting time—

without some explanation as to why such allocation is equal.

West Virginia Code § 48-9-206(d) mandates specific findings of fact and

conclusions of law when there is a deviation from equal (50-50) custodial allocation.

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Specific findings of fact and conclusions of law would allow this court to determine

whether a custodial parenting plan is equal (50-50) parenting time or whether deviation is

justified. In this matter, the custodial allocation could potentially be upheld as equal (50-

50) parenting time or as a justified deviation if the family court had given reason for its

determination in specific findings of fact and conclusions of law. However, without this

information, this Court is prevented from engaging in meaningful appellate review and,

thus, remand is necessary.

As a final note, the record reveals that the hearing before the family court was taken

by proffer. While neither party objected to this below, nor was this issue raised on appeal,

this Court notes that West Virginia Code § 48-9-206(d) requires an evidentiary hearing on

the record. Accordingly, regardless of the objection, or lack thereof, by any party, entry of

a final order regarding custodial allocation based solely on evidence offered by proffer is

improper.

IV. Conclusion

For the foregoing reasons, the July 21, 2022, final order of Family Court of

Greenbrier County is hereby converted to a temporary custodial allocation order, which

shall remain in place until an evidentiary hearing is conducted pursuant to West Virginia

Code § 48-9-206 and an order is issued containing sufficient findings of fact and

conclusions of law to permit meaningful appellate review. This case is remanded to the

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Family Court of Greenbrier County for further proceedings consistent with this opinion.

The Clerk is directed to issue the mandate contemporaneously with this opinion.

Remanded with Directions.

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