Matthew K. v. Leigh Ann S.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
November 1, 2023
MATTHEW K.,
EDYTHE NASH GAISER, CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 23-ICA-117 (Fam. Ct. Putnam Cnty. No. FC-40-2016-D-224)

LEIGH ANN S.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Matthew K. 1 appeals the “Amended Order Regarding Respondent’s
Petition for Contempt and Petitioner’s Counter Petition for Contempt” entered by the
Family Court of Putnam County on February 23, 2023. Matthew K. asserts that the family
court failed to properly resolve a dispute he had with the mother of his child in the context
of shared decision-making and incorrectly held that Matthew K. failed to meet his burden
of proof that it was in the child’s best interest to receive the COVID-19 vaccine.
Respondent Leigh Ann S. filed a response in support of the family court’s order. 2 Matthew
K. did not file a reply.

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 prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Matthew K. and Leigh Ann S. share one child, C.K., age seven. The parties were
divorced by an order entered on February 25, 2019. Regarding custody, the family court
ordered the parties to follow a 50-50 parenting plan with shared decision-making for all
major decisions.

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
Matthew K. is represented by John J. Balenovich, Esq. Leigh Ann S. is self-
represented. The guardian ad litem (“GAL”), Maggie Kuhl, Esq., filed a response brief.

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On September 8, 2021, Matthew K. filed a petition for contempt against Leigh Ann
S., to which she denied all allegations and filed a counter-petition for contempt as well as
a petition for modification of parenting time due to the child being of school age. Various
issues were raised between the parties over the course of approximately two years as their
litigation was ongoing. However, the issue surrounding this appeal involves whether the
child should receive the COVID-19 vaccine. Matthew K. was in favor of the vaccine and
Leigh Ann S. was not.

A final hearing was held on January 17, 2023. At that hearing, the parties announced
that they had resolved all issues except their COVID-19 vaccine disagreement. Matthew
K. argued that the child should have the COVID-19 vaccine, that it was safe, and in the
child’s best interest. Leigh Ann S., on the other hand, argued that she did not believe there
was enough research on the subject for young children and did not want the child to receive
the vaccine. Matthew K. offered no medical or scientific evidence or expert testimony. The
GAL presented opinion testimony based upon her own limited research showing that a
majority of parents of young children chose not to have their children vaccinated and
recommended that the family court not force Leigh Ann S. to have the child vaccinated
against her wishes. Both parties testified that the child was healthy and had no known high-
risk factors. The family court entered its order on February 23, 2023, wherein it held that
Matthew K. failed to meet his burden of proof that the vaccine was in the best interest of
the child, and thus, the child would not be required to get the vaccine. It is from that order
that Matthew K. 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 a family court order).

On appeal, Matthew K. raises two assignments of error, which we will address in
turn. As his first assignment of error, Matthew K. asserts that the family court erred and
prejudiced him when it ignored West Virginia Code § 48-9-207(b) (2022) 3 while resolving

3
West Virginia Code 48-9-207(b) states:

If each of the child’s parents has been exercising a reasonable share of the
parenting functions for the child, there shall be a rebuttable presumption that

2
a dispute between two parents with shared decision-making authority. We disagree. West
Virginia Code § 48-9-207(b) applies when the parties or the court are considering the
allocation of decision-making authority. Here, the parties were not seeking to modify the
allocation of decision-making authority; rather, they were seeking a resolution of their
disagreement on a single issue. Therefore, the family court was correct by not analyzing
this matter under West Virginia Code § 48-9-207(b).

As his second assignment of error, Matthew K. asserts that the family court erred
and prejudiced him when it incorrectly held that he should bear the burden of proof to show
that the COVID-19 vaccine was in the child’s best interest. We disagree. The family court
did not have the benefit of expert testimony or credible research upon which to base a
decision regarding whether the child should receive the COVID-19 vaccine. The family
court did not abuse its discretion by placing the burden of proof on Matthew K., the moving
party, to prove that the COVID-19 vaccine was in the child’s best interest. See generally
Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (holding that
the best interests of the child is the polar star by which decisions must be made which affect
children); Carpenter v. Carpenter, 227 W. Va. 214, 219, 707 S.E.2d 41, 46 (2011) (holding
that the burden of proof for contempt or damages other than support is on the complaining
party); Divel v. Divel, 178 W. Va. 558, 559, 363 S.E.2d 243, 244 (1987) (holding that the
burden of proof in fraud cases is on the one claiming the fraud); Syl. Pt. 4, Mayhew v.
Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999) (holding that the party seeking an
increase in value of non-marital property has the burden of persuasion on that issue).
Further, regardless of which party bore the burden of proof in this case, the outcome would
have been the same because the family court had no evidence to consider beyond the
GAL’s limited opinion testimony.

Accordingly, we affirm the Family Court of Putnam County’s February 23, 2023,
order.

Affirmed.

ISSUED: November 1, 2023

an allocation of decision-making responsibility to both parents jointly is in
the child’s best interests. The presumption may be rebutted by a showing that
joint allocation of decision-making responsibility is not in the child’s best
interest upon proof by a preponderance of the evidence of relevant factors
under § 48-9-209 of this code. The court’s determination shall be in writing
and include specific findings of fact supporting any determination that joint
allocation of decision-making responsibility is not in the child’s best interest.

3
CONCURRED IN BY:

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

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