Justin R. v. Morgan F.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
JUSTIN R., September 26, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-67 (Fam. Ct. Kanawha Cnty. No. 18-D-1000)

MORGAN F.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Justin R. 1 appeals the Family Court of Kanawha County’s January 26,
2023, order which found that his income was $80,000 per year, deviated from the child
support formula, and held that Justin R. must pay eight months of Respondent Morgan F.’s
attorney’s fees. 2 Morgan F. filed a response. Justin R. did not file a reply. Guardian ad
litem, Charles M. Love, IV, Esq. filed a summary response.

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 lower tribunal’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 reversal in a memorandum decision.
For the reasons set forth below, the family court’s decision is reversed, and this case is
remanded for further proceedings consistent with this decision.

Justin R. and Morgan F. were never married but share one child, K.R., age nine. A
custody allocation order was entered on November 15, 2018, wherein the family court
incorporated the parties’ agreement to share decision-making with a week-on/week-off
schedule.

On March 1, 2021, Morgan F. filed a petition for modification of the parenting plan,
alleging that Justin R. was not utilizing most of his parenting time and that Justin R.’s

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).
2
Justin R. is represented by Ronald N. Walters, Jr., Esq. Morgan F. is represented
by Joshua D. Miller, Esq.

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mother, Diane R., was providing most of the child’s care during Justin R.’s parenting time.
Further, the petition alleged that Diane R. refused to allow the child to call Morgan F.,
interrogated the child regularly, and espoused racial intolerance to the child. In her petition,
Morgan F. requested sole decision-making and that Justin R.’s visitation be reduced to
every Thursday evening and alternating weekends. Justin R. filed responsive pleadings on
or about March 15, 2021. Included with Justin R.’s financial statement were his tax returns,
which showed that he earned approximately $36,596 in 2019, and $53,814 in 2020.

On April 13, 2021, the family court entered an order appointing a guardian ad litem
and scheduled a modification hearing for June 30, 2021. At that hearing, the GAL reported
that the child expressed a desire to spend time with Justin R. Additionally, the GAL found
that both parties were fit parents and recommended that the parties continue operating
under a week-on/week-off parenting schedule.

The final order on Morgan F.’s petition for modification was entered on July 21,
2021. The family court found that Justin R. had acquiesced his parenting time to his mother,
Diane R.; this included the child’s medical appointments and educational needs. Further,
the family court found that Justin R. refused to help pay for the child’s extracurricular
activities, despite having recently purchased a new, second automobile. As such, the family
court found that a substantial change in circumstances had occurred and reduced Justin R.’s
parenting time to one mid-week overnight and every other weekend. Due to Justin R.’s
decreased parenting time, he was ordered to pay $533.43 per month in child support, using
the basic shared child support formula.

On May 12, 2022, Morgan F. filed a combined petition for contempt and petition
for modification. Her petitions alleged that Justin R. regularly missed parenting time for
various reasons, which included getting a tattoo, getting his beard trimmed, and racing his
vehicle. Morgan F. also alleged that Justin R. left the child with a friend of Diane R. during
spring break week and failed to attend any of the child’s medical appointments. Justin R.
filed a response as well as tax returns showing that he earned $31,411 in 2021. A hearing
was held on the combined petitions on August 22-23, 2022, during which Justin R.
contended that he missed parenting time due to work and testing positive for COVID-19.
The family court ordered Justin R. to produce his COVID-19 test results within five days,
produce proof that he had to work during certain visits, provide records showing whether
he attended the child’s medical appointments, and show proof of when he got the tattoo.
Out of all the documentation requested by the family court, Justin R. only provided one
COVID-19 test result.

In September 2022, the family court entered orders holding Justin R. in contempt
and further reducing his parenting time to one overnight per week on the condition that he
was off work and able to utilize the parenting time. The family court also ordered that
Diane R. was not permitted to be around the child during Justin R.’s visitation. Further,

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Justin R. was ordered to pay all of Morgan F.’s attorney’s fees as well as a $1,000 bond to
ensure his compliance with the family court’s order, and the GAL was reappointed.

A final modification hearing was held on December 7, 2022. At that hearing, the
GAL reported that both parents were fit, no substantial change of circumstances had
occurred, and recommended that the previous parenting plan (a mid-week overnight and
every other weekend) should be restored. The GAL also expressed concerns that Morgan
F. was speaking poorly to the child about Justin R.

The family court entered its final order on January 26, 2023, finding that Justin R.
had missed thirteen out of thirty days of parenting time since the previous hearing and
failed to attend any of the child’s extracurricular activities. The family court further
determined that due to Justin R.’s failure to exercise his parenting time, Morgan F. was
forced to reduce her full-time work hours to part-time, which reduced her salary from
$42,000 to $24,000. Additionally, Justin R. failed to ask for makeup time and declined
Morgan F.’s offers of makeup time. The family court also found that, based upon Justin
R.’s testimony, he made an income of $80,000 per year. This conclusion was based upon
Justin R. listing $80,000 as his yearly income on a recent vehicle loan application.

The family court reasoned that, because Morgan F. suffered financial consequences
due to Justin R. not exercising his parenting time, an upward deviation from the child
support formula was appropriate. Thus, the family court ruled that Justin R.’s new child
support obligation would be increased to $1,000 per month and that he would be required
to pay 77% of any medical expenses for the child that were not covered by insurance.
Although the GAL recommended that Justin R. still receive parenting time, the family court
terminated all of Justin R.’s parenting time. It is from the January 26, 2023, order that Justin
R. now appeals.

For these matters, 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., __ W. Va. __, __, 887 S.E.2d 255, 258 (Ct. App. Nov. 18,
2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court
review of family court order).

On appeal, Justin R. raises three assignments of error, which we will address in turn.
For his first assignment of error, Justin R. contends that the family court’s finding that his
income was $80,000 per year was clearly erroneous because his tax returns show that he

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earned substantially less. We agree. Justin R. presented his tax returns and testified during
the hearing that he earned significantly less than expected when he listed $80,000 as his
income on the loan application. Therefore, we remand this matter to the family court with
instructions to receive evidence regarding the parties’ income. Upon receipt of accurate
income documentation, the family court shall then determine whether deviation from the
child support formula is warranted and enter a new, appropriate child support order. 3

For his second assignment of error, Justin R. contends that the family court abused
its discretion by failing to state the reason for the deviation on the record. We disagree. The
family court stated on page seven of the final order, “This Court finds as the evidence is
clear and not contradicted that a deviation from the child support formula is warranted as
[Justin R.] makes $80,000 per year which is more than he previously indicated his income
was . . . .” See Harvey v. Harvey, 171 W. Va. 237, 241, 298 S.E.2d 467, 471 (1982) (citation
omitted) (stating that a court of record speaks only through its records or orders). Here,
although we disagree with the family court’s decision to deviate upward without first
receiving accurate evidence of Justin R.’s income, the family court did not abuse its
discretion regarding this assignment of error, as the family court clearly stated its reasoning
in the final order. We disagree with this assignment of error subject to our ruling that the
family court shall receive and reconsider evidence concerning both parties’ income and
then determine whether deviation from the child support formula is warranted.

For his third assignment of error, Justin R. contends that the family court erred by
ordering Justin R. to pay eight months of Morgan F.’s attorney’s fees. We agree. The final
order cites Grose v. Grose, 222 W. Va. 722, 671 S.E.2d 727 (2008) (per curiam), and states,
“[a]n award of attorney’s fees rests initially within the sound discretion of the family court
and should not be disturbed on appeal absent abuse of discretion.” However, Grose goes
on to say, “the family … [court] should consider a wide array of factors including the
party’s ability to pay his or her own fee [. . .] [and] the parties’ respective financial
conditions.” Id. at 724, 671 S.E.2d at 729, syl. pt. 4. Here, the family court failed to receive
accurate evidence regarding Justin R.’s income. Therefore, the decision to award attorney’s
fees based on inaccurate information was an abuse of discretion. Accordingly, we remand
this issue to the family court for proper analysis of the parties’ finances in accordance with
Grose.

In addition to Justin R.’s assignments of error, we would be remiss if we failed to
address the family court’s order directing Justin R. to pay a $1,000 cash bond. See Jackson
E. v. Olga E., No. 22-ICA-283, 2023 WL 3172033, at *3 (W. Va. Ct. App. May 1, 2023)

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While the family court’s negative reaction to the apparent income
misrepresentation made by Justin R. during the purchase of a new vehicle is understood,
and arguably may reasonably be considered by the family court in evaluating Justin R.’s
credibility, it cannot be reasonably relied upon as an accurate reflection of his income.

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(memorandum decision) (holding that the family court does not have authority to direct a
monetary sanction in the form of a cash bond stemming from a custody matter). We are
aware that the family court issued its ruling on this matter prior to the issuance of Jackson
E. v. Olga E. However, “[t]he ‘plain error’ doctrine grants appellate courts, in the interest
of justice, the authority to notice error to which no objection has been made.” State v.
Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995). In order to satisfy the “plain error”
doctrine, the appellate court must find: “(1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of
the judicial proceedings.” Id. at 7, 459 S.E.2d at 118, Syl. Pt. 7, in part. We find that this
case meets these elements. Therefore, to the extent that the cash bond is still being held,
the family court is directed to release the money to Justin R. immediately.

Accordingly, we reverse the family court’s January 26, 2023, order and remand the
matter to the family court for further proceedings consistent with this decision. The Clerk
of this Court is hereby directed to issue the mandate contemporaneously herewith.

Affirmed, in part, Reversed, in part, and Remanded.

ISSUED: September 26, 2023

CONCURRED IN BY:

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

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