Elizabeth M. v. Derek C.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 3, 2026
ELIZABETH M.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-269 (Fam. Ct. Jefferson Cnty. Case No. FC-19-2024-D-157)

DEREK C.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Elizabeth M.1 (“Mother”) appeals the Family Court of Jefferson County’s
June 6, 2025, final custodial allocation order which incorporated the parties’ parenting
agreement but failed to calculate child support. Respondent Derek C. (“Father”) filed a
response in support of the family court’s decision.2 Mother did not file a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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. For these reasons, a memorandum decision affirming, in part,
and remanding, in part, the family court’s order is appropriate under Rule 21 of the Rules
of Appellate Procedure.

Father and Mother were never married but share one child, born in 2019. At the time
of the proceedings below, Mother lived in Jefferson County, West Virginia, and Father
lived in Raleigh County, West Virginia. Mother’s husband was originally listed as the
child’s father on her birth certificate.3 However, Father filed a petition for custodial
allocation on June 4, 2024.

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 self-represented. Father is represented by Paul G. Taylor, Esq.
3
While it appears that the child’s paternity was already legally established when
Father filed his petition for custodial allocation, there is nothing in the appendix record to
indicate that the family court appointed a guardian ad litem for the child pursuant to
Michael K.T. v. Tina L.T.,182 W. Va. 399, 387 S.E.2d 866 (1989). However, it does not
1
The family court conducted a hearing on Father’s petition on September 11, 2024.
During that hearing, Mother acknowledged that Father was the child’s biological father;
however, she requested paternity testing. By order entered October 8, 2024, the family
court ordered the parties to submit to paternity testing. Strangely, despite this, the court
found in its order entered April 10, 2025, that Father completed a paternity affidavit during
the April 10, 2025, hearing.

Thereafter, Mother refused to comply with the court’s order and failed to bring the
child to five scheduled paternity testing appointments on November 7, 2024, December 5,
2024, January 2, 2025, February 6, 2025, and March 6, 2025. On March 11, 2025, Father
filed a petition for contempt against Mother for her failure to comply with the family
court’s paternity testing order. In his contempt petition, Father also alleged that Mother had
minimized contact between the child and him, and he requested attorney fees.

The family court scheduled a hearing on April 10, 2025, at 1:00 p.m., but Mother
did not appear until 2:00 p.m., after the family court issued a capias for her arrest. By order
entered April 10, 2025, the family court held Mother in contempt for her noncompliance
and ordered her to pay $291.85 for court costs and $3,000 in attorney fees. The family court
granted Father sole custody of the child and sole decision-making authority. The court
granted Mother parenting time with the child at Father’s discretion. The court further
ordered the parties to communicate only through AppClose. The court ordered Father to
take the child for paternity testing. The court ordered Mother incarcerated for civil
contempt but released her from custody by order entered four days later after Mother posted
a $5,000 cash bond with circuit clerk’s office.

Father took the child for paternity testing on April 11, 2025. The parties do not
dispute that the paternity test results released on April 23, 2025, demonstrated a statistical
probably of paternity sufficient for the court to legally establish Father as the child’s
biological father pursuant to West Virginia Code 48-24-103(a)(3).4 However, the court did
not make any findings regarding the paternity testing results in the order on appeal.

appear that any party requested the appointment of a guardian ad litem for the child or
objected to the court’s failure to appoint one.
4
The paternity testing results do not appear to be included in the appendix record;
therefore, the statistical probability of paternity revealed by the testing is unknown. Further,
the orders included in the appendix record do not contain any findings as to the statistical
probability of paternity. Also, while the family court did not specifically “establish” Father
as the child’s father in the order on appeal, the court ordered that the child’s birth certificate
be amended to reflect that Father is the child’s biological father. Further, it does not appear
from the record on appeal that the family court entered an order requiring the West Virginia
2
The family court conducted another hearing on April 29, 2025. On May 8, 2025,
Mother filed a motion to expedite the proceedings, alleging that the child was suffering
mentally due to the custody change. Mother also apologized to the court for her
noncompliance with the court’s order regarding paternity testing and her failure to appear
for the hearing on time. On May 29, 2025, the family court entered its order stemming from
the April 29, 2025 hearing. The family court found that Mother had alienated the child
from Father and ordered a family assessment and reunification therapy through a private
mental health provider.

The final hearing was held on May 28, 2025. During that hearing, the parties reached
the following agreement: (1) during the school year, Father would have parenting time the
first two weekends of each month from Friday at 4:00 p.m. until Sunday at 3:00 p.m.; (2)
on the third weekend during the school year, Father was allowed to visit the child near her
home on Saturday from 12:00 p.m. until 6:00 p.m. with the option of staying overnight
locally with the child on Saturday evening; and (3) during summer, Father would have
parenting time during the first full week of every month from Sunday at 3:00 p.m. through
the following Sunday at 3:00 p.m. and on the third weekend of every month from Friday
at 4:00 p.m. until Sunday at 3:00 p.m. The parties also agreed on visitation for spring break,
Mother’s Day, Father’s Day, Fourth of July, Thanksgiving, and Christmas. Father received
designated time for phone calls four evenings per week. The final order reflecting the
parties’ agreement was entered on June 6, 2025. Mother now appeals that order.

For these matters, we use 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., 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 raises nine assignments of error. Because most of Mother’s
arguments can be addressed together, they will be consolidated. See generally Tudor’s
Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237

Division of Vital Statistics to remove the name of the man listed as father on the child’s
birth certificate.
3
(2012) (stating that “the assignments of error will be consolidated and discussed
accordingly”).

First, Mother asserts that the family court failed to consider the child’s best interest,
established preferences and routines with her siblings, psychological development, and
stability. She further argues that the court prioritized Father’s interests and granted him
overly generous visitation, failed to consider the doctrine of paternity by estoppel, failed to
consider the non-biological father’s role as a de facto parent, and did not consider Father’s
violation of a magistrate-issued safety order. We find that since Mother and Father reached
an agreement on custody, these arguments lack merit.

The Supreme Court of Appeals of West Virginia (“SCAWV”) has consistently held,
“[o]nce a competent party makes a settlement and acts affirmatively to enter into such
settlement, his second thoughts at a later time as to the wisdom of the settlement [do] not
constitute good cause for setting it aside.” See Moreland v. Suttmiller, 183 W. Va. 621,
625, 397 S.E.2d 910, 914 (1990). Additionally, the SCAWV has held that when agreements
are properly executed, they are “legal and binding and this Court will not set aside such
agreements on allegations of duress and undue influence absent clear and convincing proof
of such claims.” See Warner v. Warner, 183 W. Va. 90, 95, 394 S.E.2d 74, 79 (1990). In
the present case, Mother does not allege on appeal that the parties’ agreement was reached
under duress or undue influence. Instead, she expresses her dissatisfaction with the
outcome below. Therefore, we conclude that the family court did not err or abuse its
discretion when it incorporated the parties’ agreement into the final order.

Next, Mother contends that the family court erroneously failed to calculate child
support. We agree. West Virginia Code § 48-9-205(c)(4) (2022) states that the court, when
ordering a permanent parenting plan, shall order “[p]rovisions for the financial support of
the child.” Because the family court failed to address child support, we remand on that
limited issue and direct the family court to calculate child support and enter an order
establishing child support.

Accordingly, the family court’s June 6, 2025, order is affirmed, in part, and
remanded, in part, with directions.

Affirmed, in part, and Remanded, in part, with Directions.

ISSUED: February 3, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White
4