Suzanne H. v. Lee H.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
July 30, 2024
SUZANNE H.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-551 (Fam. Ct. Greenbrier Cnty. No. FC-13-2018-D-153)

LEE H.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Suzanne H.1 appeals the Family Court of Greenbrier County’s November
16, 2023, Final Order as to the Parties’ Pending Petitions for Contempt, Modification, and
Sanctions, which held her in contempt and granted Respondent Lee H. additional parenting
time. Lee H. responded in support of the family court’s decision.2 Suzanne H. filed 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 that there is error in the family court’s decision, but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21 of the Rules of Appellate Procedure for resolution in a memorandum decision. For
the reasons set forth below, the family court’s decision is affirmed, in part, reversed, in
part, and remanded to the family court with directions as set forth herein.

Suzanne H. (“Mother”) and Lee H. (“Father”) share one child, born in 2011. In
December of 2015, Father relocated to North Carolina for employment purposes. The
parties later divorced in 2018. Events leading to this appeal began when Father filed five
petitions for contempt against Mother. During litigation, Hudson Forensic Psychology
group conducted a court-ordered Personality Assessment Inventory test on Father in late
2021. Based on their assessment, Hudson recommended that Father’s parenting time not
be increased and that he have very limited interaction with Mother.

1
To protect the confidentiality of the juvenile 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
Suzanne H. is represented by Mike Kelly, Esq. Lee H. is represented by Brandon
L. Gray, Esq.
1
Eventually, the parties entered into an Agreed Parenting Order on March 29, 2022.
In that order, Mother was designated as the primary custodial parent with shared decision-
making, Father was ordered to begin therapy, and the following parenting schedule was
adopted:

• Father was allocated the first weekend of each month during the school year, with
visits taking place at his home in North Carolina. If the child had a school function
during Father’s weekend, the parties were to schedule parenting time for a different
weekend.
• Spring break was allocated to Mother during even years and Father was given the
odd years.
• Thanksgiving was allocated to Mother on odd years and Father had the even years.
• For Christmas, during even years, Mother had the first half and Father had the
second half. The parties were to do the reverse during odd years.
• Father was allocated Labor Day.
• Mother was allocated Memorial Day and Martin Luther King, Jr. Day.
• All other minor holidays were allocated to the parent according to the regular and
summer schedule.
• During months when Father had extended holiday time, he had the option of
spending one overnight in West Virginia with seventy-two hours’ notice to Mother.
• The parties had a 50-50 plan for summer break.
• Father was given two FaceTime calls per week and one phone call.

On July 21, 2022, Father filed another petition for contempt against Mother, wherein
he requested that Mother be fined and/or incarcerated, post a $10,000 bond, and pay
Father’s attorney’s fees for violating the parenting plan in various ways. On January 9,
2023, Father filed a proposed parenting plan, alleging that Mother violated the custody
order multiple times, had mental health issues, urged that Mother’s parenting time be
supervised, and requested that the child move to North Carolina to live with him and that
he be granted sole decision-making authority. Mother filed a response and counter-petition
to Father’s contempt petition, wherein she stated that Father filed the petition as harassment
after Mother refused to go against their agreed parenting order.

On October 12, 2022, Father filed a counter-petition for custody modification
wherein he alleged that Mother was alienating the child from him and requested primary
custody. Mother filed a response wherein she stated that despite being invited to participate
in multiple activities, Father had made no contact with the child’s therapist, never
participated in parent-teacher conferences, only attended one doctor’s appointment in the
child’s entire life, attended one extracurricular activity over a five-year period, and refused
to adjust his summer schedule for the child to attend a summer camp that the child wanted
to attend.

2
On June 6, 2023, the family court appointed a guardian ad litem (“GAL”) for the
child. The GAL’s report and recommendations were filed on August 27, 2023, wherein the
GAL sought to expand her investigation to include interviewing the child’s former teachers
and current therapist. Father objected to the GAL interviewing the therapist, and the family
court agreed, ruling in Father’s favor. Therefore, the GAL was only able to interview the
child’s teachers, who found the child to be very mature for her age. The GAL also found
that the child was a sufficiently mature, intelligent child and that her firm and reasonable
wishes should be accommodated. Additionally, the GAL noted in her report that, upon
review of the child’s therapist’s testimony from a prior hearing, he (Mr. Jones) had also
stated that the child was sufficiently mature to decide how much time is spent with Father
and that the child wished to spend less time with him. The GAL finalized her report by
opining that no substantial change in circumstances had occurred since the entry of the
March 29, 2022, order, that there was no evidence of parental alienation, but that the family
court should modify the parties’ summer parenting schedule due to the parents’ inability to
work out any modifications on their own. Accordingly, the GAL recommended the
following modifications:

• The child should continue to visit Father on the first weekend of each month. If the
child has an activity in West Virginia, the visitation should take place in West
Virginia.
• The child should select the camps she wants to attend each summer. The times she
is not in camp should be divided evenly between the parties.
• The child should have the autonomy to call Father at the time she desires on
Tuesdays, Thursdays, and once per weekend.

A final hearing on the parties’ petitions for contempt, modification, and sanctions
was held on September 6, 2023. At the family court’s request, the GAL met with the child
again on September 8, 2023, before the entry of the final order, to discuss Christmas and
summer visits with Father. The child stated that if she had to choose, she would prefer to
visit Father for up to ten days as long as it allowed her to attend the summer camps of her
choice. The final order was entered on November 16, 2023, and found that: (1) a transfer
of primary custody was not in the child’s best interest; (2) both parties were in contempt;
(3) the child was sufficiently mature but her wishes did not override Father’s right to have
a full, meaningful relationship with her; (4) sufficient reason existed to deviate from the
therapist’s recommendations; and (5) both parties should post a bond to ensure future
compliance with the court’s orders.

Based on those findings, the family court ordered that: (1) Mother shall remain the
primary custodial parent; (2) Father shall exercise parenting during one weekend per
month, even if the child has to miss an extracurricular activity; (3) the child shall be allowed
to attend the summer camps of her choice, and that if she chooses a day-camp near Mother’s
home, it shall count toward Mother’s parenting time; (4) no more than two times per

3
summer, Father’s time may be extended from seven to ten days to enable the parties to have
equal summer parenting time; (5) once summer sports practices begin, if Father chooses
not to be with the child in West Virginia, any missed time shall be forfeited; (6) all
exchanges shall take place in Rocky Mount, Virginia; (7) each party shall post a $5,000
cash bond to ensure compliance with the order. The November 16, 2023, order adopted the
parenting plan modifications pursuant to West Virginia Code § 48-9-402(b)(2). It is from
the November 16, 2023, order that Mother now appeals.

For these matters, 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., No. 22-918, 2024 WL 2966177, __ W. Va. __,
__S.E.2d __ (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for
appellate court review of family court orders).

On appeal, Mother raises eight assignments of error. First, Mother asserts that the
family court clearly erred and abused its discretion by including in its final order Father’s
accusations and insults of Mother and her counsel. We disagree. Although Rule 6(a) of the
Rules of Practice and Procedure for Family Court states, “[a]ll orders and indices are public
records”, the final order made it clear that the offensive language was Father’s testimony,
not a finding of fact or conclusion of law of the family court. 3 Therefore, we find that the
family court did not abuse its discretion by including the language in the final order.

Second, Mother contends that the family court was clearly erroneous and abused its
discretion by holding Mother in contempt for not complying with the extracurricular,
communications, and summer vacations provisions in the March 29, 2022, Agreed
Parenting Plan Order. Upon review of the record, we agree. “To find a person guilty of . .
. contempt, it is necessary to find that he violated the order of court intentionally, knowingly
and purposefully, without justifiable excuse.” Carpenter v. Carpenter, 227 W. Va. 214,
218, 707 S.E.2d 41, 45 (2011) (citation omitted). Here, the family court specifically stated
in its order that it “couldn’t find that [Mother] intentionally violated the order” for signing
up the child for cross-country, taking the child on a trip instead of signing her up for a camp
in Greenbrier County, and not responding to Father’s messages within 24 hours. Absent a

3
Although we do not reverse on this assignment of error, we note that the offensive
language was not a necessary addition to the final order. We caution family courts to avoid
including invectives (reflecting merely what a party believes) in these sensitive orders
when such language is unnecessary to address the matters at issue.
4
finding of Mother’s intent to violate the family court’s order, Mother cannot be held in
contempt. Accordingly, we find error in the family court’s ruling holding Mother in
contempt and reverse.

Third, Mother argues that the family court abused its discretion by completely
ignoring and dismissing the unrebutted testimony of the child’s treating therapist. We
disagree. A review of the family court’s order shows that the family court did not
completely disregard the therapist’s testimony, but rather deviated from his
recommendations “due to the passage of time since his testimony” and the child’s “specific
responses to the questions and topics discussed with her by the [GAL], particularly given
[the GAL’s] extensive training and experience in working with children in highly
adversarial custodial matters, and the interplay between the [c]hild’s best interest and the
applicable law.” Therefore, we cannot conclude that the family court abused its discretion
here. See In re Tiffany Marie S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185 (1996) (A
reviewing court may not overturn a family court’s finding simply because it would have
decided the case differently).

As her fourth assignment of error, Mother asserts that the family court abused its
discretion by directing the GAL to negotiate with the child to reach an outcome different
from her expressed and firmly held preferences. We disagree. The family court’s order
stated that it directed the GAL to consult the child to “inquire of her specific wishes in
regard to summer vacations from school and her Christmas holiday.” A family court judge
has the responsibility for the supervision and administration of the family court and the
authority to manage the business before it. See W. Va. Code § 51-2A-7. Additionally,
Guideline 16 of the Guidelines for Guardians Ad Litem in Family Court states “The GAL
shall be prepared to explain and advocate his or her assessments and recommendations in
all proceedings before the Court.”4 Further, “[A] guardian ad litem has a duty to represent
the child(ren) to whom he or she has been appointed, as effectively as if the guardian ad
litem were in a normal lawyer-client relationship.” See Matter of Scottie D., 185 W. Va.
191, 198, 406 S.E.2d 214, 221 (1991). Here, the family court did not abuse its discretion
by directing the GAL to inquire further about the child’s wishes.

Mother’s fifth, sixth, and seventh assignments of error on appeal present interrelated
issues; accordingly, we consolidate her arguments as appropriate. 5 For these assignments
of error, Mother contends that the family court abused its discretion by awarding Father
two ten-day periods with the child in the summer, additional time during holidays, and by
requiring the child to make thrice-weekly phone calls to her father, in spite of her firmly
held preferences against such. We disagree. Regarding Father’s additional parenting time,

4
See Appendix B of the Rules of Practice and Procedure for Family Court.
5
See Bowden v. Monroe Cnty. Comm’n, 232 W. Va. 47, 51, 750 S.E.2d 263, 267
(2013) (consolidating assignments of error).
5
the family court made it clear that the extra time is solely for equalizing time during the
summer and that the additional holiday time was based on the child’s “mature, stated
wishes.” Regarding the child’s thrice-weekly phone calls, Mother contends on appeal that
the possibility of a missed call will allow Father to manufacture another contempt petition
against her. However, this argument lacks merit as it speculates as to Father’s future bad
behavior. The family court’s order states that the child “shall have the autonomy to call her
Father at the time she desires on Tuesdays, Thursdays, and once per weekend,” which does
not prohibit other means of communication. Therefore, we cannot conclude that the family
court abused its discretion as to these assignments of error and we affirm the family court
on these issues.

Lastly, Mother argues that the family court abused its discretion by refusing to give
the child the autonomy to select her own extracurricular activities. We disagree. The final
order states that Father’s weekend visitation per month will be moved around any
extracurricular activity that she has. The family court specifically enumerated several
sports, artistic, and academic extracurricular activities that would displace Father’s
parenting time with proper notice. The only time Father’s weekend would take precedence
is in the event that the child has activities such that Father would receive no parenting time
whatsoever. Further, the final order states that “[o]nce [the child] begins practices for any
sports she selects, then she shall be in West Virginia so as to attend all of those practices
and meets. If Father chooses not to be with her in West Virginia to facilitate her attendance,
then his parenting time with her for those periods shall be forfeited.” Thus, the child is
clearly permitted to choose any activity she desires, and Father cannot use his parenting
time to limit her participation in those activities during the summer and most weekends.
Therefore, we decline to reverse the family court’s decision with regard to this assignment
of error.6

Accordingly, we affirm, in part, reverse, in part, and remand with directions the
family court’s November 16, 2023, order.

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

ISSUED: July 30, 2024

CONCURRED IN BY:

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

6
We also note that this assignment of error is not yet ripe for appeal.
6