Tiffany A. v. Brent D.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
TIFFANY A., February 2, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-106 (Fam. Ct. Kanawha Cnty. No. 11-D-243) OF WEST VIRGINIA

BRENT D.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Tiffany A. 1 appeals the Final Order on Modification entered by the
Family Court of Kanawha County on August 17, 2022. Tiffany A. asserts, inter alia, that
the family court erroneously denied her petition for modification and sua sponte
significantly reduced her parenting time after failing to give her the opportunity to present
evidence or testimony. Respondent Brent D. filed a response in support of the family
court’s ruling. Tiffany A. did not file a reply. 2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). The Court has considered the parties’ briefs and the record on appeal. This
case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.
For the reasons expressed below, this case is remanded to the family court to hold an
evidentiary hearing and enter a new order.

The parties share two children, now ages fifteen and thirteen, and were operating
under a parenting plan whereby Brent D. was the primary residential parent with the
children living with him in West Virginia. Tiffany A. had parenting time during holiday
breaks and significant time during summer break at her home in Alabama. Tiffany A. filed
a pro se petition for modification of the parenting plan on July 19, 2022. As grounds for
her modification request, she stated that the children reached the age of maturity and asked

1
To protect the confidentiality of the juveniles 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).

Tiffany A. is represented by Paul S. Saluja, Esq. Brent D. is represented by
2

Timothy A. Bradford, Esq.

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to live primarily with her in Alabama. Additionally, Tiffany A. averred that Brent D. failed
to provide her with the children’s schedules, information about activities, and medical care
information, as required in an earlier parenting plan.

The modification hearing was held on August 16, 2022. During the hearing, Brent
D. presented a video that showed clips from Tiffany A.’s boyfriend’s birthday party. At
the party, gag gifts 3 of an adult nature were presented to Tiffany A.’s boyfriend and party
guests simulated sexual behavior with the minor children present. After viewing the video,
the court determined that the behavior shown in the video was inappropriate for children
of their age to have witnessed. Tiffany A. attempted to explain that she was outside playing
games in the yard and was not aware that party guests presented her boyfriend those items.
However, the court refused to allow Tiffany A. to explain or to present any evidence or
testimony to defend herself. 4 The final order was subsequently entered on August 17, 2022,
wherein the judge found that Tiffany A’s home was not appropriate for the children and
sua sponte reduced Tiffany A.’s parenting time to supervised visits at Liam’s Place in West
Virginia and ordered that telephone calls with the children were now to be supervised by
Brent D. It is from this order Tiffany A. now appeals. Our standard of review is as follows:

“In reviewing . . . 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., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va. __, __, __ S.E.2d __, __, 2022 WL
17098574, at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005)
(specifying standards for appellate court review of family court order).

To decide the appropriate custodial arrangement in this case, it was necessary for
the family court to hear and consider evidence from both parties. Rule 2.6(A) of the West
Virginia Rules of Judicial Conduct states that, “[a] judge shall accord to every person who
has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according

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Tiffany A. testified that they were “gag gifts.”
4
A video recording of the hearing is included in the appendix record. At minute
24:15 Tiffany A. attempted to explain the birthday party video but the judge said, “I need
you to stop talking! I need you to stop talking! I’m gonna put you out and dismiss your
case!” Tiffany A. later tried to explain the video again and the judge stated, “I don’t need
you to say another word! I might just take away all your parenting rights!” At minute 26:07,
Tiffany A. asked if she’s allowed to speak and the judge stated, “No, you are not allowed
to speak.”

2
to the law.” In Heather M. v. Richard R. 242 W. Va. 464 836 S.E.2d 431 (2019), a case
involving the same family court judge, the Supreme Court of Appeals of West Virginia
found an abuse of discretion and reversed a family court’s order when the family court had
refused to allow a parent to present evidence in a custody matter.

After the video was presented to the court, Tiffany A. was not afforded the
opportunity to defend herself and the children were not permitted to testify about their
preferences, which was an abuse of discretion. The family court judge became extremely
impatient, expressed irritation and anger, raised her voice and screamed at Tiffany A., and
generally engaged in a non-judicial, disrespectful and discourteous manner. Accordingly,
we remand this case back to family court with directions to hold a full evidentiary hearing
on Tiffany A.’s petition for modification within ninety days of the entry of this
memorandum decision. The Final Order on Modification entered on August 17, 2022, is
considered a temporary custodial allocation order and shall remain in full force and effect
until the hearing on remand is expeditiously concluded and the family court enters a new
order. 5

Accordingly, we remand this case to the family court for further proceedings
consistent with this memorandum decision. The clerk is directed to issue the mandate
contemporaneously with this memorandum decision.

Remanded with directions.

ISSUED: February 2, 2023

CONCURRED IN BY:

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

5
In her appellate brief, Tiffany A. requested that the family court judge be recused.
However, this Court does not have jurisdiction to address the request for recusal. The
process to seek to disqualify a judge is set forth in Rule 17 of the West Virginia Trial Court
Rules.

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