Marwa A. v. Mohamed A.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
October 1, 2024
MARWA A.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-381 (Fam. Ct. Kanawha Cnty. Case No. FC-20-2015-D-1431)

MOHAMED A.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Marwa A.1 appeals the Family Court of Kanawha County’s August 2,
2023, order denying her petition for the modification of custody and its May 20, 2024,
order denying her motion for reconsideration of the same. One of the primary issues for
our consideration is whether the family court erred in denying Marwa A.’s petition to
modify custody without holding a hearing and without affording her an opportunity to
present evidence. Respondent Mohamed A. responded in support of the family court’s
decisions.2 Marwa A. 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. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the family court’s August 2, 2023, decision is reversed,
and the case is remanded for further proceedings consistent with this decision.

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
Marwa A. is represented by James M. Pierson, Esq., who, for a brief time during
the family court proceedings, was not practicing law. Mohamed A. is represented by
Timothy A. Bradford, Esq.

1
Our Court previously addressed multiple underlying issues in this case.3 Thus,
because those decisions contain detailed factual recitations, we only need to briefly discuss
the background facts of the case in this decision. Mohamed A. (“Father”) and Marwa A.
(“Mother”) are the parents of two minor children, born in 2011 and 2014. The parties were
divorced by an order entered on February 21, 2017. Per the divorce order, Mother was
granted most of the parenting time. However, after a series of contempt petitions alleging
parental alienation were filed against Mother, physical custody of the children was
transferred to Father by orders entered on September 13, 2022, and October 12, 2022,
holding that Mother would have no visitation for six months.4 In the October 12, 2022,
order, the family court held that at the end of the six month time frame, Mother was
permitted to file a petition for modification if certain conditions were met. First, the family
court required that a visit was recommended by the children’s therapist. Next, the family
court required that Mother take responsibility for the parental alienation and attend therapy.

On April 28, 2023, Mother filed a motion to reconsider the family court’s September
13, 2022, and October 12, 2022, orders, in which she argued that the basis for the family
court’s parental alienation finding was unsupported by the facts of the case and current
parental alienation research. On June 1, 2023, Mother also filed a petition for the
modification of custody seeking to reestablish visitation. In her petition, Mother alleged
that a substantial change of circumstances had occurred based upon the following: (1) the
passage of more than the court-ordered six-month requirement, (2) Mother should be
granted the opportunity to rebut the psychological report prepared by Saar Psychological,
(3) the upcoming school year was approaching, and (4) the family court’s prior ruling had
placed the children in severe risk of further abuse at the hands of Father during the court-
mandated six-month period of no visitation. The family court denied Mother’s motion to
reconsider by order entered on August 1, 2023, holding that Mother’s arguments made in
her motion for reconsideration were appropriate for an appeal, not in a motion to
reconsider. The next day, on August 2, 2023, the family court entered its order denying
Mother’s petition for modification, holding that Mother did not allege a change in
circumstances and that Mother’s petition was solely based on her assertions that her
psychological report was wrong.

Shortly thereafter, Mother filed a motion to disqualify the family court judge. The
family court judge submitted the motion, along with her response in opposition to the
motion, to Chief Justice Walker. Chief Justice Walker granted Mother’s motion to

3
See Marwa A. v. Mohamed A., No. 23-ICA-93, 2023 WL 7203417 (W. Va. Ct.
App. November 1, 2023) (memorandum decision) and Mohamed A. v. Marwa A., No. 24-
ICA-75, 2024 WL 3594345 (W. Va. Ct. App. July 30, 2024) (memorandum decision).
4
Father resides in Virginia and the children have had no contact with Mother since
Father obtained physical custody in October 2022.

2
disqualify by an order entered on August 21, 2023, designating another family law judge
to preside. On September 18, 2023, Mother filed another motion to reconsider the family
court’s denial of her petition for modification.5 A hearing was held on Mother’s motion for
reconsideration on May 9, 2024. The newly reassigned family court judge denied Mother’s
motion for reconsideration by order entered May 20, 2024, wherein it nevertheless
commented, “A hearing should have been conducted on the Petition for Modification prior
to its denial.” It is from both the August 2, 2023, order denying Mother’s petition for
modification and the May 20, 2024, order denying her motion for reconsideration that
Mother now appeals.

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., 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).

Mother initially raised five assignments of error on appeal but later added two
additional assignments of error in her supplemental brief following the family court’s
decision on her motion for reconsideration. Several assignments of error are closely related,
which we will consolidate. See generally Tudor’s Biscuit World of Am. v. Critchley, 229
W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (allowing consolidation of related
assignments of error).

In her first, second, and third original assignments of error, Mother asserts that the
family court was clearly wrong and/or abused its discretion when it denied her petition for
modification without a hearing, failed to make sufficient findings of fact to justify its
denial, and held that the only issue alleged in the petition was that Dr. Saar’s report was
wrong. In her supplemental assignments of error, Mother asserts that the family court was

5
Mother’s motion to reconsider was filed in the family court after the matter was
appealed to this Court. Therefore, this Court remanded the matter to family court by order
entered March 26, 2024, for the limited purpose of issuing an order on the September 18,
2023, motion for reconsideration. The family court entered an order denying the motion to
reconsider on May 20, 2024. The case was placed back on this Court’s active docket on
June 13, 2024. Thereafter, the parties filed supplemental briefs, wherein Mother raised two
additional assignments of error and Father filed responses to the same.

3
clearly wrong and/or abused its discretion when it stated during the May 9, 2024, hearing
on her motion for reconsideration that she should have been afforded a hearing on her
petition for modification but then failed to afford her a hearing. We agree.

Upon our review of the August 2, 2023, order denying Mother’s petition for
modification, the family court simply and summarily stated that, “[Mother] made no
assertions that a substantial change of circumstances has actually occurred.” The family
court did not provide any other findings of fact or conclusions of law to support its decision
and failed to address express terms of the October 12, 2022, order that specifically limited
the restriction of Mother’s custodial allocation to a six-month duration. The October 12,
2022, order contemplates Mother’s opportunity to address the family court in a hearing to
reestablish parenting time once the six-month period elapsed, and the August 2, 2023, order
dismissing a petition to modify without a hearing is inconsistent with the earlier custody
order. The Supreme Court of Appeals of West Virginia has remanded such wholly
insufficient orders finding that:

to properly review an order of a family court, “[t]he order must be sufficient
to indicate the factual and legal basis for the [family court’s] ultimate
conclusion so as to facilitate a meaningful review of the issues presented.”
Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 (1996); see
also Nestor v. Bruce Hardwood Flooring, L.P., 206 W. Va. 453, 456, 525
S.E.2d 334, 337 (1999) (“[O]ur task as an appellate court is to determine
whether the circuit court’s reasons for its order are supported by the record.”).
“Where the lower tribunals fail to meet this standard—i.e. making only
general, conclusory or inexact findings—we must vacate the judgment and
remand the case for further findings and development.” Province, 196 W.
Va. at 483, 473 S.E.2d at 904.

Collisi v. Collisi, 231 W. Va. 359, 363-64, 745 S.E.2d 250, 254-55 (2013).

We next discuss the family court’s May 20, 2024, order denying Mother’s motion
for reconsideration. In that order, the family court stated, “The mere passage of time alleged
in a petition for modification is not usually a ground for modification” and cites Skidmore
v. Skidmore, 225 W. Va. 235, 691 S.E.2d 830 (2010). While we do not delve into the
distinguishing facts of Skidmore, we do note one very important distinction. In the case at
bar, the family court stated in its October 12, 2022, order that Mother was to have no
parenting time or contact with the children for a period of three to six months. The petition
for modification was filed after approximately seven months had passed following that
order. The language requiring no parenting time for three to six months indicates that the
court’s October 12, 2022, order was merely a temporary order subject to automatic review
after the passage of the mandated timeframe. “A time-limited order is, by definition, a
temporary order.” See, e.g., Heather J. v. Clifford S., No. 23-ICA-394, 2024 WL 1270202,
at *3 (W. Va. Ct. App. Mar. 25, 2024) (memorandum decision) (holding that because an

4
order with a limited time-frame was deemed a temporary order, Mother did not need to
show a change in circumstances under West Virginia Code §§ 48-9-401 to 402, in filing a
petition for modification). In addition to the October 12, 2022, order being time-limited,
the family court agreed that Mother should have been afforded a hearing on her petition
for modification and stated such in its May 20, 2024, order denying Mother’s motion for
reconsideration. Therefore, we reverse the family court’s rulings in its May 20, 2024, order
and remand this case with directions for the family court to conduct a timely hearing on
whether Mother should be afforded any additional contact or parenting time with her
children now that the court-mandated timeframe has long since passed.

Next, Mother contends that the family court erred when it failed to consider whether
exceptional circumstances existed to justify a modification absent a showing of changed
circumstances under West Virginia Code § 48-9-401(b) (2022).6 Here, we conclude that
the family court’s failure to modify the parenting plan under this Code section was not
erroneous, as the statute’s language states the court “may” modify under exceptional
circumstances, not “shall” modify.

Lastly, Mother argues that the family court failed to address whether the proposed
modification was in the children’s best interest. As stated above, the October 12, 2022,
order was a temporary order. Mother was not required to show a change in circumstances
or that the modification was in the best interest of the children. See West Virginia Code §
48-9-401 or § 48-9-402. Therefore, we conclude that whether more parenting time for
Mother is in the best interest of the children shall also be heard on remand.

Accordingly, we reverse and remand to the Family Court of Kanawha County for
further proceedings, consistent with this decision.

Reversed and Remanded with Directions.

ISSUED: October 1, 2024

CONCURRED IN BY:

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

6
West Virginia Code § 48-9-401(b) states, “[i]n exceptional circumstances, a court
may modify a parenting plan if it finds that the plan is not working as contemplated and in
some specific way is manifestly harmful to the child, even if a substantial change of
circumstances has not occurred.”

5