In Re the CHILD OF STEPHEN H. and Tamara P.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2014 Term
FILED
_____________ October 23, 2014
released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

No. 13-0999 OF WEST VIRGINIA

_____________

IN RE: THE CHILD OF STEPHEN H. AND TAMARA P.

____________________________________________________________

Appeal from the Circuit Court of Ohio County

The Honorable Larry V. Starcher, Special Judge

Civil Action No. 01-D-308

AFFIRMED IN PART AND REVERSED IN PART

____________________________________________________________

Submitted: September 17, 2014

Filed: October 23, 2014

Robert P. Fitzsimmons, Esq. Richard F. Neely, Esq.
Fitzsimmons Law Firm P.L.L.C. Neely & Callaghan
Wheeling, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the Respondent

JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT

“In reviewing a final order entered by a circuit court judge upon a review

of, or upon a refusal to review, 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., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803

(2004).

i
Benjamin, Justice:

Petitioner Tamara P. appeals the final order of the Circuit Court of Ohio

County entered September 9, 2013, that, on reconsideration of its initial ruling,

overturned the September 17, 2012 final decision of the family court as it pertained to the

time allotted her and Respondent Stephen H., respectively, for the parenting of the

couple’s daughter (the “child”).1 Stephen H. also appeals, asserting errors by the circuit

court in its affirmation of changes made by the family court to the parenting plan and also

in the circuit court’s decision to leave intact the family court’s ruling that Tamara P.

continue to have sole decision-making authority over the child’s extracurricular activities.

Discerning no abuse of discretion on the part of the family court that would justify

disturbing its allocation of parenting time, we reverse that aspect of the circuit court’s

order to the contrary. As to the cross-assignments of error asserted by Stephen H., in

which he contends that modification of the parenting plan was procedurally improper and

resulted in substantive defects continuing Tamara P.’s decision-making authority and

control over the child’s extracurricular activities, we affirm.

1
Consistently with our long-standing practice, we endeavor to protect the identity
of the juvenile in this sensitive matter by declining to refer to her and her parents by their
full names. See, e.g., Matter of Jonathan P., 182 W. Va. 302, 303 n.1, 387 S.E.2d 537,
538 n.1 (1989).

FACTUAL AND PROCEDURAL BACKGROUND

Stephen H. established his paternity of the child through an uncontested

proceeding brought shortly after her birth in 2001. A 2003 agreed order implemented a

negotiated parenting plan, pursuant to which Tamara P. and Stephen H. shared custody of

their daughter. By its order of December 12, 2006, incorporating on reconsideration its

prior orders of July 31, 2006, and November 3, 2006, the family court refined the plan to

set custodial parenting privileges for alternating weeks during the summers of 2007 and

2008, with that arrangement to last throughout the year beginning with the summer of

2009. The 2006 orders also granted Tamara P. the unfettered authority to make all

decisions affecting any extracurricular activities in which the child participates. The

family court’s ruling was affirmed on appeal to the circuit court, and we declined to

review that order.

Stephen H. filed a motion in the family court on October 27, 2011, to

modify and amend the parenting plan. Tamara P.’s own motion for modification and

amendment ensued on April 10, 2012. The family court conducted a hearing on June 19,

2012, and issued its final ruling on September 17, 2012. The family court’s order, in

pertinent part, ended the alternating-week arrangement in favor of one that afforded

Stephen H. full custody of the child only every other weekend. The family court granted

Tamara P. exclusive privileges during the week except for two midweek evenings,

usually commencing after school but subject to variation depending on scheduled events,

when Stephen H. was permitted to parent his daughter for approximately six hours each

evening. Stephen H. moved for reconsideration on October 15, 2012, which the family

court granted in part and denied in part by its order of December 12, 2012, though it left

the parenting allocation essentially unchanged.

On January 7, 2013, Stephen H. sought review by the circuit court,2 which

heard oral argument on April 19, 2013. By its order of May 10, 2013, the circuit court

made additional small changes to the parenting plan. Stephen H. filed a motion for

reconsideration on June 5, 2013, which was granted and resulted in supplemental oral

argument on July 12, 2013. The circuit court issued its final order on the reconsideration

motion on September 9, 2013 (the “order”), which, most significantly, enhanced the

privileges afforded Stephen H. by extending to overnight the child’s midweek stays with

him, his wife, and his two sons.

Tamara P. filed a timely petition for appeal on October 4, 2013, requesting

that we review the order. She assigns as error the circuit court’s “overnight”

modification, contending that no abuse of discretion on the part of the family court

justified the amendment. Stephen H. asserted cross-assignments of error,3 complaining

2
See W. Va. Code § 51-2A-11(a) (2001).

3
See W. Va. R. App. P. 10(f).

that the family court’s cessation of the alternating-week provision was not preceded by

the requisite change of circumstances, and that Tamara P.’s sole decision-making

authority over extracurricular activities was imposed in violation of law.

II.

STANDARD OF REVIEW

Although the order entered by the circuit court provides the basis for

appeal, our consideration of this matter centers on the family court’s findings of fact and

application of the law with respect to the parenting plan. See Syl., Carr v. Hancock, 216

W. Va. 474, 607 S.E.2d 803 (2004) (“In reviewing a final order entered by a circuit court

judge upon a review of, or upon a refusal to review, 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.”).

III.

ANALYSIS

We begin with the first cross-assignment of error, wherein Stephen H.

maintains that no material change in circumstances warranted the family court’s

reallocation of parenting hours. See W. Va. Code § 48-9-401(a) (2001) (authorizing plan

amendment where “a substantial change has occurred in the circumstances of the child or

of one or both parents and a modification is necessary to serve the best interests of the

child”). Stephen H. asserts this position even though it was he who initiated this most

recent round of litigation by filing his own motion for modification with the family court.

Notwithstanding his current argument that there was not a requisite change of

circumstances to warrant a change in the parenting plan, we observe that it was counsel

for Stephen H. who reminded the family court at the 2012 hearing that several years had

elapsed since entry of the previous order relating to parenting, with the passage of time

resulting in “very definite changes in circumstances.” Counsel attempts to circumscribe

the changed circumstances as pertaining merely “to this allocation on activities,” meaning

Tamara P.’s exclusive say as to the child’s extracurricular activities. The statute,

however, permits consideration and modification of an entire “parenting plan order” by

the family court in such an instance. W. Va. Code § 48-9-401(a) (2001). The facts as

presented in the case at bar persuade us that the family court’s modifications herein were

appropriate and need not have been limited in the manner advocated by Stephen H.

The family court found that the child’s “movement into adolescence is a

substantial change in circumstances.” That finding is amply supported by the evidence.

In particular, Tamara P.’s expert psychologist opined that the child’s “relationships with

her friends [will] become increasingly more important as she moves through the

adolescent years.” According to the expert, the child’s nascent adolescence renders it

“important at this time to do what is in the best interest of this child and also what

continues her ability to foster relationships with friends and continue her normal

adolescent growth.”

Moreover, the family court’s finding is entirely consistent with our

precedent. In Skidmore v. Rogers, 229 W. Va. 13, 21, 725 S.E.2d 182, 190 (2011), we

observed that a “significant advance in age, which was not provided for in the original

parenting plan, is a substantial change in circumstance on which a modification of the

parenting plan order may be based.” See also Andrea H. v. Jason R. C., 231 W. Va. 313,

319, 745 S.E.2d 204, 210 (2013) (recognizing that, in accordance with Skidmore, “an

advancement in age can be considered a change in circumstance sufficient to warrant a

modification of custody”). The change in circumstances brought on by the child’s

adolescence opened the entire parenting plan to scrutiny. Consequently, we affirm the

portion of the circuit court’s order that left undisturbed the family court’s determination

that changed circumstances justified modification of the child’s parenting plan.

We now consider Stephen H.’s second cross-assignment of error, relating to

the child’s extracurricular activities. The family court recalled that it had previously

afforded Tamara P. control of those activities in no small part because the parents could

not, at a fundamental level, cooperate in the decision-making process. In that vein, the

family court perceived “no better cooperation between the parties as to extracurricular

activities than when the original Order was entered.” The family court observed in

addition that Stephen H. maintained “an inconsistent set of priorities” from Tamara P.

concerning the child’s participation in competitive soccer. Tamara P.’s nurturing and

facilitation of her daughter’s extracurricular activities persuaded the family court that she

should continue to make all decisions relating thereto. Stephen H. proposed that he be

allowed to select one activity for the child in counterpoint to soccer, but the family court

regarded that proposal as “fraught with even more conflict, which will be harmful to [the

child].” We cannot say that the family court’s analysis constituted an abuse of its

discretion, and we therefore reject Stephen H.’s second cross-assignment of error.

We likewise ascertain no abuse concerning the family court’s discretionary

allocation of parenting time. The family court was persuaded to abolish the alternating

week arrangement in light of Stephen H.’s “necessary absences due to work

commitments.” Stephen H.’s career constraints limited his availability to “most evenings

and weekends,” resulting frequently in his wife having to stand in as a parenting proxy to

the child. The family court reasoned that it should “instead award that time to [Tamara

P.], who is available, and is the biological mother. At the same time, the family court

heeded Stephen H.’s expert psychologist, who cautioned that his client’s work

obligations “not be looked at unfavorably.” To that end, the family court sought to

“maximize [the child’s] time with her father” through the midweek privileges, and, by

commencing the visits immediately after school, strove to “permit her some time with her

brothers, even though [Stephen H.] will not be present until later in the day.”

In reversing the family court’s ruling on allocation, the circuit court took no

explicit issue with the foregoing reasoning. It appears instead that the circuit court

extended the midweek stays to overnight based on its largely unarticulated sense of

fairness, bolstered by its conclusion that the extension could be accomplished with

minimal additional burden. In the latter regard, the circuit court noted that “the parties

live in close proximity to one another and to the [child’s] School.” Contrary to the view

taken by the circuit court, we are convinced that the family court’s dutiful consideration

of the evidence and concomitant care in tailoring the parenting plan was an appropriate

exercise of its discretion. We therefore reverse that portion of the circuit court’s order

and reinstate the allocation of time set forth in the family court’s order.

IV.

CONCLUSION

Pursuant to the foregoing, we affirm the circuit court’s order insofar as it

left undisturbed the family court’s determination that changed circumstances justified

modification of the child’s parenting plan, and insofar as it ratified the family court’s

decision to permit Tamara P. to continue as the sole decisionmaker pertaining to the

child’s extracurricular activities. We reverse the portion of the circuit court’s order that,

in contravention of the family court’s discretionary ruling, extended Stephen H.’s

midweek parenting privileges to overnight stays. There appearing no cause for the matter

to be remanded, all unappealed provisions of the circuit court’s order shall remain intact.

Affirmed in part and reversed in part.