Jason C. v. Kaitlin H.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 14, 2024
JASON C.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-577 (Fam. Ct. Ritchie Cnty. No. FC-43-2016-D-27)

KAITLIN H.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Jason C.1 appeals the Family Court of Ritchie County’s November 20,
2023, interim order denying his petition for modification and allocation of custodial
responsibility regarding custody of the parties’ two minor children. Respondent Kaitlin H.
filed a response in support of the family court’s decision.2 The guardian ad litem (“GAL”)3
filed a summary response. Jason C. filed a reply. The issue on appeal is whether the family
court erred in granting Jason C. less than 50-50 custody of both children.

This is an expedited interlocutory appeal filed in the Intermediate Court of Appeals
pursuant to West Virginia Code § 48-9-203(f) (2022).4 We conclude that the family court’s
interim order lacks sufficient findings of fact and conclusions of law. For the reasons stated
below, this case is remanded to the family court with directions to enter a new order with
sufficient findings of fact and conclusions of law to facilitate a meaningful appellate
review.

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last names 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
Jason C. is represented by Jessica E. Myers, Esq. Kaitlin H. is represented by
Katharine L. Davitian, Esq.
3
The guardian ad litem is Leslie L. Maze, Esq.
4
West Virginia Code § 48-9-203(f) provides, in part, that “[a] parent who has sought
and been denied equal (50-50) physical custody . . . may file an interlocutory appeal with
the West Virginia Intermediate Court of Appeals as to the temporary custodial allocation
of the child or children, and the Intermediate Court of Appeals shall provide an expedited
review of the order[.]”

1
Jason C. (“Father”) and Kaitlin H. (“Mother”) were never married, but share two
children, born in 2013 and 2020. This case began in 2016 when Father filed a petition to
recognize paternity and to establish a parenting plan for the oldest child. The final hearing
on Father’s petition was held on June 16, 2016. At that hearing, the parties reached an
agreement on all issues. On August 16, 2016, the family court entered a final order
memorializing the terms of the parties’ agreement, which held the following:

• Mother was designated as the primary residential parent.
• The parties were granted shared decision-making.
• The child had parenting time with Father every third weekend from 6:00 p.m.
on Friday until Sunday at 8:00 p.m., one additional weekend of Father’s
choice each month at the same times; and every Tuesday from 3:30 p.m. until
7:45 p.m.
• The child spent nine uninterrupted days of vacation with each party during
the summer for vacation.

In addition to the above provisions, the 2016 order also stated, “in accordance with
the Skidmore decision of the West Virginia Supreme Court of Appeals, the mere passage of
time and the concomitant increase in the age of the child shall not be sufficient to form the
basis for a modification of this Parenting Plan.”5

On June 23, 2021, Father filed a petition for modification of the oldest child’s
parenting plan and a petition for allocation for the youngest child. In his petition, he stated
that the parties had resumed their relationship, cohabited, and had their second child since
the entry of the 2016 order. Father further alleged in his petition that Mother refused to
allow him to spend time with the youngest child for approximately one month prior to
filing his petition. Father requested 50-50 custody for both children.6

On November 4, 2021, a temporary hearing was held on Father’s petition for
modification and allocation. The parties reached a temporary agreement by which the
youngest child would have the same parenting time with Father as the oldest child, as was
reflected in the parties’ 2016 agreed parenting order.

5
The Skidmore case provides guidance regarding how courts should analyze
whether a change in circumstances occurred when parties seek a modification of custody.
Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011).
6
Relevant to this case, the youngest child suffered a traumatic brain injury when
she was eight months old, takes daily seizure medication, was diagnosed with cerebral
palsy, has severe nut and egg allergies, and has speech and vision delays.

2
On January 27, 2022, the children were appointed a GAL. The GAL submitted her
report to the family court on May 5, 2022, recommending that Father not be granted 50-50
parenting for the youngest child due to the severity of her health conditions and Father’s
inability to provide proper care. Instead, she recommended that the youngest child continue
to follow the same parenting schedule as the oldest, which was two weekends per month
and several hours each Tuesday evening.

Multiple hearings were scheduled and continued. Due to the delay, Father filed a
renewed motion for temporary relief on May 31, 2023. A hearing was held on July 26,
2023, on Father’s motion. In that hearing, Mother moved to dismiss Father’s petition for
modification regarding the oldest child, citing the Skidmore language that was included in
the parties’ 2016 agreed order. The family court entered an interim order on November 20,
2023, granting Mother’s motion to dismiss and denying Father 50-50 custody of the oldest
child because he failed to prove that a substantial change in circumstances had occurred.
The youngest child’s parenting schedule also remained unchanged from the parties’
November 2021 agreement due to a lack of time to complete the hearing. The hearing was
continued to September 29, 2023, and continued multiple times after that. 7 It is from the
November 20, 2023, interim order that Father now appeals, requesting that we assert
interlocutory jurisdiction pursuant to West Virginia Code § 48-9-203(f).

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

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., __ W. Va. __, 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).

Father raises two assignments of error on appeal, which will be addressed out of
order. First, he contends that the family court erred by granting Mother’s motion to dismiss
his petition to modify the parenting plan regarding the oldest child. He argues that he
proved there was a substantial change in circumstances to warrant a modification.

7
Another hearing was held on March 22, 2024, during which the parties reached a
temporary agreement for both children, wherein Father would have parenting time with
both children on certain days and with only the youngest child on other days. The
agreement extended through the first week of August 2024.

3
However, this assignment of error is outside the scope of our interlocutory review and
cannot be addressed on appeal. “[O]ur interlocutory jurisdiction, granted by West Virginia
Code § 48-9-203(f), is limited to orders creating temporary parenting plans and does not
include an interim order crafting modifications to a permanent parenting plan.” See e.g.
Christina F. v. Jason C., No. 23-ICA-507, 2024 WL 3252292, at *2 (W. Va. Ct. App. July
1, 2024) (memorandum decision). Thus, because the family court’s temporary order
regarding the oldest child stems from a modification of a permanent parenting plan, it is
not subject to expedited interlocutory appeal.8

As his second and final assignment of error, Father asserts that the family court erred
by refusing to allocate 50-50 custody of the youngest child for which no permanent
parenting plan order has ever been issued. In support of his argument, Father states that
Mother failed to rebut the presumption referenced in West Virginia Code § 48-9-102a
(2022)9 and that the family court failed to include sufficient findings of fact and conclusions
of law. We agree with Father that the family court’s November 20, 2023, order is
inadequate.

West Virginia Code § 48-9-204 (2022) states, “the court shall make a temporary
parenting plan [. . .] which shall be in writing and contain specific findings of fact upon
which the court bases its determinations.” West Virginia Code § 48-9-209 (2022) provides
further guidance with a non-exclusive list of factors to be considered when making custody
allocation findings. Here, an analysis of those factors was not provided in the family court’s
interim order. The family court’s temporary parenting plan order must include a thorough
analysis regarding whether Mother rebutted the presumption to justify the deviation from
50-50, and such analysis must include specific findings of fact surrounding any limiting
factors that may be present. See e.g., Jesse C. v. Veronica C., No. 23-ICA-169, 2024 WL
1590468, at *4 (W. Va. Ct. App. Feb. 8, 2024) (memorandum decision) (stating that “any
party seeking more than 50-50 custodial allocation has the burden of rebutting the
presumption and a proper analysis must be performed by the court”); see also Collisi v.

8
Additionally, the parties reached an agreement which extends through August of
2024, thereby arguably eliminating the dispute for appeal purposes.

9
West Virginia Code § 48-9-102a states,

[t]here shall be a presumption, rebuttable by a preponderance of the evidence,
that equal (50-50) custodial allocation is in the best interest of the child. If
the presumption is rebutted, the court shall, absent an agreement between the
parents as to all matters related to custodial allocation, construct a parenting
time schedule which maximizes the time each parent has with the child and
is consistent with ensuring the child’s welfare.

4
Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-55 (2013) (requiring family court
orders to set out specific findings of facts and conclusions of law to facilitate a meaningful
appellate review).

For the foregoing reasons, we remand to the family court with directions to issue an
order with specific findings of fact and conclusions of law to facilitate meaningful appellate
review.10 The Clerk of this Court is hereby directed to issue the mandate
contemporaneously herewith.

Accordingly, we remand this matter to the family court for entry of a new order
consistent with this decision.

Remanded.

ISSUED: August 14, 2024

CONCURRED IN BY:

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

10
Due to the multiple delays in this matter, we encourage the family court to issue
its final parenting plan order on remand in a timely and efficient manner.

5