Barry N. v. Dorothy C.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
BARRY N., March 6, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-218 (Fam. Ct. Kanawha Cnty. No. 22-D-21) OF WEST VIRGINIA

DOROTHY C.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Barry N. 1 appeals the Family Court of Kanawha County’s Final Order of
Allocation dated September 29, 2022. In the final order, the family court designated Barry
N. as the primary residential parent of the parties’ minor child and granted Barry N. the
majority of parenting time with the minor child. However, Barry N. appeals the family
court’s order on the basis that he disagrees with certain factual findings in the order and is
concerned that they could be utilized to his detriment in the future. Dorothy C. did not file
a response brief. 2

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 no substantial question of law and no abuse of discretion.
For these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Barry N. and Dorothy C. are the parents of a minor child, H.N. The parties were
never married. The parties lived together in Kanawha County from December of 2015 until
December 15, 2021, when Dorothy C. moved to Florida with H.N., allegedly due to abusive
behavior by Barry N.

On January 11, 2022, Barry N. filed his petition for allocation of custodial
responsibility and request for emergency hearing. On March 1, 2022, Barry N. filed his
amended petition for custodial responsibility. Dorothy C. was served via publication

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last names by the first initials. 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).

Barry N. is represented by Erica Lord, Esq. Dorothy C. has not made an appearance
2

on appeal.

1
pursuant to the family court’s order. A hearing was held on April 14, 2022. Barry N.
appeared for the hearing, but Dorothy C. did not. On April 19, 2022, the family court
entered its Final Order Establishing Paternity and Allocating Custodial Responsibility. In
that order, the family court adjudicated Barry N. to be the father of H.N., made Barry N.
the primary custodial parent of H.N. with Dorothy C. having parenting time only at his
discretion, and ordered that H.N. be immediately returned to the State of West Virginia.

On June 27, 2022, Dorothy C. filed a motion for reconsideration of the family
court’s Final Order Establishing Paternity and Allocating Custodial Responsibility. In the
motion, Dorothy C. sought to have the family court hold its Final Order Establishing
Paternity and Allocating Custodial Responsibility in abeyance pending a full evidentiary
hearing. On July 19, 2022, Barry N. responded to the motion for reconsideration. He filed
an amended response on August 3, 2022. The family court set a hearing on the motion to
reconsider for September 6, 2022. However, at the September 6, 2022, hearing, the family
court addressed a petition for a domestic violence protective order that had been filed by
Dorothy C. against Barry N. At the September 6, 2022, hearing, the family court ordered
that the hearing on the motion for reconsideration would be continued to September 16,
2022.

Following the September 16, 2022, hearing, the family court entered its Final Order
of Allocation. In that order, the family court designated Barry N. as the primary residential
parent and awarded him the majority of parenting time.

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-IA-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).

Despite prevailing below, Barry N. now appeals the family court’s final order, an
order drafted by his counsel, on the basis that the order contained certain findings of fact
that he disagrees with and alleges could be used to his detriment in future proceedings.
Specifically, Barry N. appeals the findings that Dorothy C. gained credibility by teaching
H.N. sign language and by having him vaccinated, that Barry N. was controlling but not
abusive, and that Dorothy C. was not neglectful to H.N.

2
After a review of the record, we find that even assuming for the purposes of
argument, that the findings complained of were erroneous, they were, at most, harmless
error because Barry N. fails to show that he suffered prejudice or that his substantial rights
were adversely affected by any of the family court’s findings. See William M. v. W. Va.
Bureau of Child Support Enf't, No. 20-0620, 2021 WL 3833867, at *3 (W. Va. Aug. 27,
2021) (memorandum decision) (finding alleged error by family court harmless where
petitioners failed to show that they suffered prejudice or had their substantial rights
adversely affected by alleged error). 3

Accordingly, we affirm.

Affirmed.

ISSUED: March 6, 2023

CONCURRED IN BY:

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

3
Having reviewed the record, we conclude that this appeal is a waste of judicial
resources. Barry N. has not asked for more parenting time, or that any restrictions or
conditions be placed on Dorothy C.’s visitation, or that her child support obligation, which
was set at $0.00, be increased.

3