Lori B. v. Danny F.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
September 4, 2024
LORI B.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-499 (Fam. Ct. Raleigh Cnty. No. FC-41-2018-D-43)

DANNY F.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Lori B.1 (“Mother”) appeals the Family Court of Raleigh County’s
October 16, 2023, and December 19, 2023, orders that modified its July 7, 2022,
Modification Order by awarding Respondent Danny F. (“Father”) equal (50-50) custodial
allocation of the parties’ children. Father and the guardian ad litem (“GAL”) for the
children filed responses in support of the family court’s decision.2 Mother did not file a
reply. The issue is whether there had been a substantial change of circumstances that was
not known or anticipated since the July 2022 order that justified the custodial modification
pursuant to West Virginia Code § 48-9-401 (2022).

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for remand in a memorandum decision. For
the reasons set forth below, the family court’s October 16, 2023, and December 19, 2023,
orders are vacated and the case is hereby remanded for further proceedings consistent with
this decision.

The parties are the parents of twin boys who were born in October 2017. By way of
background, Mother has always been the children’s primary custodial parent. On February
18, 2020, when the children were two and a half years old, the family court entered the

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Mother is represented by Brandon L. Gray, Esq. Father is unrepresented. The GAL
for the children is Latachia Miller, Esq.

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initial final order following a September 13, 2019, custody hearing. The final order
included a permanent parenting plan agreement that designated Mother as the primary
custodian of the children and awarded Father parenting time on every second, third, and
fourth weekend of every month. The order stated that “[t]he exchange for this visitation
will occur at 10:00 a.m. on Saturday and [Father] will drop the minor children off at Day
Care/School on Monday morning.” Father also received parenting time from Wednesday
once he picked the children up from daycare until Thursday at 5:00 p.m. of the week that
he did not receive any weekend parenting time. Holidays were split between the parties in
terms of even and odd years, and each party received three non-consecutive weeks of
parenting time during the summer, as defined by the Raleigh County School District. The
order also stated that once the children turned five years of age (October 2022), the parties
were to alternate parenting time on a weekly basis during the summer pursuant to the
Raleigh County School District Calendar.

Although unclear from the record, at some point after the entry of the initial
parenting plan agreement, Father moved to South Carolina, where he resided for more than
a year and saw very little of his children. After moving back to Raleigh County, Father
filed his first petition to modify custody of the children.3 On June 22, 2022, when the
children were four years old, the family court held a final hearing on Father’s petition. On
July 7, 2022, the court entered its final modification order that ordered Mother to remain
as the children’s primary custodial parent, but Father’s parenting time was modified from
every second, third, and fourth weekend of every month to every other weekend. He also
received parenting time on Wednesday through Thursday of alternating weeks. The family
court also ordered that “[a]ll provisions of prior [o]rders in this matter not modified herein
remain in full force and effect.” Thus, it appeared that the remaining provisions of the
February 2020 initial parenting plan agreement, such as holidays and the summer school
schedule, were to remain in effect.

In 2023, Father filed another petition for modification of custody, alleging that he
was concerned about the children’s safety because they had access to Mother’s prescription
medication.4 On October 24, 2023, the family court held a final hearing on Father’s

3
The record seems to indicate that the family court entered a temporary order on
Father’s first petition for modification in March 2022 that gave him parenting time every
other weekend and Wednesday through Thursday on alternating weeks as a trial run since
he had been absent for over a year in South Carolina.
4
The record neither includes the date that Father filed his second petition for
modification nor the actual petition. However, the relevant parts of his petition were read
into the record during the final hearing.

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petition. The official transcript indicates that the family court appointed a GAL for the
children upon the filing of Father’s 2023 petition.5

At the beginning of the hearing, the GAL testified to her investigation and
recommendations. The GAL stated that the children were five years old when she
interviewed them and that they wanted “to see their dad more,” but they liked being with
their mom more because she allowed them to rip pages out of their coloring books. The
GAL testified that she “didn’t interview them for a very long time just because of their
age.” She additionally testified that Father lived in an apartment with his father, and that
he wanted more time with his children. She was made aware that there was a history of the
grandparents not being able to be around the children but did not know any other details.
She further stated that although there were allegations of substance abuse, in her opinion,
neither parent was abusing a substance. Father had a prescription for suboxone, there were
no medications out in view at Mother’s home, and both parents were fit and acceptable
parents.6 Upon being questioned, she acknowledged that Father’s desire to spend more time
with his children was not a substantial change in circumstances pursuant to the code and
that the allegations in Father’s petition to modify were unfounded. Nonetheless, the GAL
recommended that the family court award each parent equal (50-50) custody of the
children, stating that the children were ready to spend more time with Father since they
would be turning six soon.

Father then testified in support of his petition. He stated that his children deserved
to spend equal time with both parents; if they were girls, he would feel differently but since
the children were boys, they deserved more time with him. He asserted that since Mother
ignored the alternating weekly summer arrangements from the 2020 order when the
children turned five, that it was just more time he missed with them. He further testified
that his father lived with him and was also prescribed suboxone. He acknowledged that the
previous family court judge required his father to submit to four random drug screens
before he could have any contact with the children and there was a history of his parents
not being permitted contact with the children. Although Father admitted that the children’s
schooling was contemplated and discussed at the previous modification hearing held in
June 2022, he stated that because the children had not yet started pre-k when the June 2022
order was entered, the circumstances had substantially changed to support his current
petition for modification.

5
This case was formerly heard by Judge Goldston, who retired. The presiding
family court judge was appointed in April 2023.
6
She was also questioned about the history of Father’s parents’ drug use and how
the previous judge had not allowed them any contact with the children, but she was unaware
of the alleged history.

3
Upon the conclusion of Father’s case-in-chief, Mother’s counsel moved to dismiss
the petition for modification based on there being no substantial change of circumstances
since the July 2022 modification order. Her counsel argued that the children’s schooling
was considered and discussed at the previous June 2022 modification hearing and there
was nothing new for the family court to consider. Mother’s counsel specifically argued that
the crux of Father’s current petition was that Mother left her medication within the
children’s reach, but the GAL testified that such allegation was unfounded. Mother’s
counsel further argued that Father only wanted to spend more time with his children, which
was not an applicable substantial change of circumstances pursuant to the code. Father’s
counsel made no argument except to remind the court of the GAL’s recommendation. The
court subsequently permitted Mother to respond and present counter evidence to Father’s
case-in-chief.

Mother testified that the children were smart for their age but were not mature
enough to state their desired preference. She stated that she and Father had never been able
to get along and informed the family court of Father’s history of domestic violence, arrests,
and that he was on probation at some point. She testified that she had given his mother
permission to pick the children up once because between Father’s mother and father, his
mother was the “lesser of two evils.” She asserted that she does not believe it would be in
the children’s best interest for the parties to share equal (50-50) custody and that Father
should continue to receive his parenting time pursuant to the July 2022 order. The
following colloquy then took place between the court and Mother:

THE COURT: Well -- go ahead. Let me -- let me ask
your client some questions then.
Since the final order in 2019, has he only had weekend
time with his children?
THE WITNESS: Every other weekend.
THE COURT: Has there ever been a holiday time or a
summertime --
THE WITNESS: Yeah. He gets holidays. We split the
holidays.
THE COURT: Okay. Has he had more than two days a row
-- in a row during those time periods?
THE WITNESS: For the holidays?
THE COURT: Yes.
THE WITNESS: We do like every other year, we
alternate the years, he gets like -- I can’t even think
right now. God.
THE COURT: Can you remember what last year’s schedule
was?

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THE WITNESS: I know it’s like -- her -- December 25th until
New Year’s Eve. We -- we alternate that. Back and forth with
that.
THE COURT: Okay.
THE WITNESS: As far as I can remember. I’m sorry.
THE COURT: Okay. So, there have been periods of time
since 2019 that he’s exercised more than two days in a row?
THE WITNESS: Yes.

On October 16, 2023, the family court entered an order granting Father’s petition
for modification after finding a substantial change in circumstances had occurred and
awarded each parent equal (50-50) custody. The order stated the following:

In addressing the issue of modification, the [c]ourt finds that evidence has
been presented that a substantial change of circumstances has occurred since
the entry of the last [o]rder on June 22, 2022 [sic] based on a number of
pieces of testimony presented.7 The childrens’ [sic] age and discretion may
not be one of a statutorily authorized firm preference, but their expressions
of their feelings to the [GAL] must be considered by the [c]ourt, and
accordingly, the children have expressed a clear desire to spend equal time
with both parents. The [f]inal [o]rder entered on September 13, 2019 [sic]
did contemplate that at some time, either by agreement or a specific finding
by this [c]ourt when the children reached six [sic] years of age, that week
on/week off would be appropriate for a summer schedule.8 Testimony was
elicited that confirmed [Father] has had periods of time where he has
exercised more than just two consecutive visitation days. Additional
testimony was elicited that confirmed certain actions by the parties have
waived and/or modified, without a substantial change of circumstances and
by their own actions, their de facto arrangement thereby terminating concerns
surrounding the grandparents’ exposure to the children.

The family court entered an amended order that addressed child support on December 19,
2023. It is from these orders that Mother appeals.

When reviewing the order of a family court, we apply the following standard of
review:

7
The date of the entry of the previous order was July 7, 2022.
8
The date of the final order’s entry was February 13, 2020. It ordered the parties to
share week on/week off parenting during the summer when the children reached five years
of age.

5
When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., No. 22-918, 2024 WL 2966177, 250 W. Va. 53,
902 S.E.2d 185 (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards
for appellate court review of family court orders).

On appeal, Mother asserts two assignments of error. She first argues that the family
court abused its discretion by finding that the children’s expressions to the GAL were
required to be upheld by the court, contrary to West Virginia Code § 48-9-402(b)(4) (2022).
In support of her argument, she contends that the court’s finding that the children desired
to spend equal time with both parents was clearly erroneous because the record is devoid
of such fact. Additionally, she argues that even if the evidence existed, the children were
not sufficiently mature to intelligently express a voluntary custodial preference as
acknowledged by the GAL’s testimony. West Virginia Code § 48-9-402 provides for
modification without a showing of changed circumstances. It states that if the modification
is in the child’s best interest and the modification “[i]s necessary to accommodate the
reasonable and firm preferences of a child who is under the age of 14 and, in the discretion
of the court, is sufficiently matured that he or she can intelligently express a voluntary
preference[,]” then a court may modify any provisions of the parenting plan without a
showing of changed circumstances. W. Va. Code § 48-9-402(b)(4).

In the instant case, the children were five years of age at the time of the final hearing.
Upon review, the GAL testified that her discussions with the children indicated that they
were not mature. She testified that the children preferred spending time with Mother, and
when she asked the children what they did not like about Father, they stated that he did not
let them rip out pages of coloring books. She then testified that she “didn’t interview them
for a very long time just because of their age.”

The family court’s order stated that the children’s “expressions of their feelings to
the [GAL] must be considered . . . the children have expressed a clear desire to spend equal
time with both parents.” While we commend the court for considering the children’s
feelings, West Virginia Code § 48-9-402(b)(4) requires a family court to analyze whether
children under the age of fourteen are “sufficiently matured” that they can “intelligently
express a voluntary preference” before the court can modify a parenting plan to
accommodate their preference without a showing of a change in circumstances. The
Supreme Court of Appeals 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 of fourteen. See State ex rel. Jeanne
U. v. Canady, 210 W. Va. 88, 96–97, 554 S.E.2d 121, 129–30 (2001) (“While Jordan is

6
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.”)

The Supreme Court of Appeals of West Virginia has said that to properly review
an order of a family court:

[t]he 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. Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d
894, 904 (1996); see also Nestor v. Bruce Hardwood Flooring L.P., 206 W.
Va. 453, 456, 525 S.E.2d 334, 337 (1999) (“[O]ur task as an appellate court
is to determine whether the circuit court's reasons for its order are supported
by the record.”) “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.” Province, 196 W. Va. at 483, 473 S.E.2d at 904.

Collisi v. Collisi, 231 W. Va. 359, 364, 745 S.E.2d 250, 255 (2013). Upon review,
the family court’s order does not contain sufficient findings as to how the children have
sufficiently matured so that they can intelligently express a voluntarily preference. Thus,
we conclude that the family court’s order contains insufficient finding and analysis to
provide for a meaningful appellate review. Therefore, this issue must be remanded for
further development through an amended order.

Next, Mother argues that the family court erroneously found a substantial change of
circumstances had occurred when none had been pled. She contends that the basis of
Father’s petition was that the children could reach her medication, which was unfounded.
However, Father and the GAL argue that the substantial change of circumstances was that
the children had started attending kindergarten. Nonetheless, the court’s order is devoid of
any analysis pertaining to the children’s schooling, or any other language articulating the
substantial change.

The statute governing a modification of a parenting plan applicable to this
assignment of error provides that:

Except as provided in § 48-9-402 or § 48-9-403 of this code, 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 in the prior order, 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.

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W. Va. Code § 48-9-401 (2022). The burden is on the party seeking the modification to
establish the required substantial change of circumstances. See Corinne Z. v. Tyler M., No.
23-ICA-329, 2024 WL 1591071, at *2 (W. Va. Ct. App. Feb. 27, 2024) (memorandum
decision) (It was mother’s burden, as the party seeking the modification of custody, to
establish that a substantial change of circumstances had occurred); see also Goff v. Goff,
177 W. Va. 742, 356 S.E.2d 496 (1987) (the burden of proof is on the parent seeking to
modify the parenting plan).

To justify modifying a parenting plan upon a showing of changed circumstances
pursuant to West Virginia Code § 48-9-401, the Supreme Court has held that the three
following criteria must be established:

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.”

Jared M. v. Molly A., 246 W. Va. 556, 561, 874 S.E.2d 358, 363 (2022). The Court went
on to explain:

“[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.”

Id. at 562, 874 S.E.2d at 364 (2022).

Here, the family court’s order fails to set forth any analysis regarding those
considerations. Although the family court’s order states that a substantial change of
circumstances had occurred since the entry of the last modification order, the order fails to
specify what change had arisen since the entry of the prior order that had not previously
been anticipated. Moreover, the order fails to analyze or even address whether the
modification was in the children’s best interest.

Based on the record, the children were four years of age when the July 7, 2022,
order was entered. In her brief to this Court, the GAL acknowledged that all prior parenting
plans considered the school calendar when scheduling parenting time, and the record
indicates that the children had attended daycare prior to attending school. Pursuant to West
Virginia Code § 48-9-401, the family court’s order contains insufficient information to

8
explain its ruling. “This Court cannot emphasize how essential it is for family courts to not
only articulate their findings, but also explain their reasons for making such findings.”
Dusti A. v. Jonathan A., No. 23-ICA-125, 2024 WL 794624, at *5 (W. Va. Ct. App. Feb.
27, 2024) (memorandum decision). Thus, we conclude that because the family court’s
order contains insufficient findings of fact and conclusions of law to justify its custodial
determination, we are unable to provide a meaningful appellate review. See, e.g., Miranda
B. v. Timothy O., No. 22-ICA-130, 2023 WL 1463825, at *2 (W. Va. Ct. App. Feb. 2, 2023)
(memorandum decision).

Accordingly, we vacate and remand the October 16, 2023, and December 19, 2023,
orders to the family court. On remand, the family court shall enter an order containing
sufficient findings of fact and conclusions of law analyzing the children’s preference and
maturity level, and whether Father has met his burden of producing evidence showing a
substantial change of circumstances, consistent with this decision. The family court’s
October 16, 2023, and December 19, 2023, orders are hereby converted to temporary orders
until the entry of a new final order consistent with this decision is issued by the family
court.

Vacated and Remanded with Directions.

ISSUED: September 4, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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