IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
2022 Fall Term
November 18, 2022
_____________________________
EDYTHE NASH GAISER, CLERK
No. 22-ICA-2 INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
_____________________________
AMANDA C.,
Respondent Below, Petitioner
v.
CHRISTOPHER P.,
Petitioner Below, Respondent
________________________________________________________________________
Appeal from the Family Court of Upshur County
Honorable Lori B. Jackson, Judge
Civil Action No. 21-D-11
REMANDED WITH DIRECTIONS
________________________________________________________________________
Submitted: November 10, 2022
Filed: November 18, 2022
Steven B. Nanners, Esq. Shannon R. Thomas, Esq.
Nanners Law Office, PLLC Weston, West Virginia
Buckhannon, West Virginia Counsel for Respondent
Counsel for Petitioner
Allison S. McClure, Esq.
McClure Law PLLC
Clarksburg, West Virginia
Guardian Ad Litem
CHIEF JUDGE GREEAR delivered the Opinion of the Court.
JUDGE SCARR concurs and reserves the right to file a separate opinion.
GREEAR, Chief Judge:
Petitioner, Amanda C. appeals an order of the Family Court of Upshur
County, entered on July 8, 2022, denying her 50/50 shared custodial rights and decision-
making authority for her minor child, B.P., under West Virginia Code § 48-9-206 (2020). 1
Having reviewed this matter, we conclude that the Family Court of Upshur
County committed plain error when it failed to properly apply West Virginia Code § 48-9-
206 (2022), in its July 8, 2022 Order Establishing Custodial Allocation and Child Support.2
While West Virginia Code § 48-9-206 (2020), was the existing version of the law when
the petition for custodial allocation and child support was filed in the underlying case, that
statutory section was subsequently amended by the West Virginia Legislature
(“Legislature”) in April of 2021 and March of 2022, with West Virginia Code § 48-9-206
(2022) being operative for all orders entered after June 10, 2022. 3 There is no dispute that
the final evidentiary hearing occurred after the 2021 amendments took effect. The July 8,
2022, order was issued after the 2022 amendments to the statute took effect. Accordingly,
we remand this case to the Family Court of Upshur County for further proceedings
consistent with this opinion.
1
This Court’s use of initials is necessary to protect the identities of those involved
in this case. See W. Va. R.A.P. 40.
2
The final order was signed by Judge Jackson on July 5, 2022, and entered by the
clerk on July 8, 2022.
3
Reviewing the legislative history of West Virginia Code § 48-9-206 reveals
frequent amendments to this statute. See H.B. 2199, 75th Leg., 1st Reg. Sess. (W. Va. 2001);
S.B. 51, 83rd Leg., Reg. Sess. (W. Va. 2018); H.B. 3039, 84th Leg., Reg. Sess. (W. Va.
2020); H.B. 2363, 85th Leg., Reg. Sess. (W. Va. 2021); S.B. 463, 85th Leg., Reg. Sess. (W.
Va. 2022).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is the biological mother of two children, B.P., and A.P.4
Respondent, Christopher P. is the biological father of the minor child at issue. Petitioner
and Respondent resided together in Upshur County, West Virginia until June of 2018. On
February 1, 2021, respondent filed a petition requesting a determination of custodial
allocation and support.
On May 29, 2021, the Family Court held a hearing and entered a temporary
order, which allocated child custody to the parties on a 50/50 basis, granted joint decision-
making ability, and appointed a guardian ad litem for the minor child. A final hearing was
scheduled for January 12, 2022; however, upon motion of the respondent, an order
continuing this hearing was entered on January 3, 2022. The final hearing was rescheduled
for May 11, 2022.
On May 2, 2022, petitioner’s counsel filed a notice of scheduling conflict
with the Family Court of Upshur County, the Family Court of Webster County, and the
Circuit Court of Webster County. The notice of scheduling conflict noted the following
scheduling conflicts for petitioner’s counsel:
1. Final evidentiary hearing in Civil Action 21-D-11 in Upshur County
Family Court (Judge Jackson) 5 at 9:00 a.m.;
4
A.P. was born in May of 2003 and B.P. was born in June of 2012. A.P. reached
the age of majority during the pendency of this action and is not at issue in this appeal.
Judge Jackson was presiding by special assignment in the Family Court of Upshur
5
County for Judge Turner.
2
2. Hearing in civil action 22-D-18 in Webster County Family Court (Judge
Carpenter) at 11:30 a.m.; and
3. Sentencing hearings in criminal actions 21-F-14, 21-F-31, 22-F-10, 22-
F-6, 22-F-7 in Webster County Circuit Court (Judge Alsop) from 10:40
a.m. to 2:15 p.m.
While the Family Court of Upshur County determined that petitioner’s notice
of scheduling conflict was untimely filed, that court still consulted with the other conflicted
courts to ascertain the possibilities of resolving the scheduling conflicts.6 The family courts
resolved their potential conflict, enabling the Family Court of Upshur County hearing to
proceed as scheduled. However, the Family Court of Upshur County and the Circuit Court
of Webster County were unable to resolve their scheduling conflict. On May 5, 2022, the
Family Court of Upshur County entered an order providing notice to petitioner and
respondent of that court’s intent to proceed with the final hearing on May 11, 2022, as
scheduled. On May 11, 2022, despite the fact that neither petitioner nor her counsel
appeared, the Family Court of Upshur County held a final hearing. Following this hearing,
that court entered an order, allocating respondent primary custody of the minor child and
all final decision-making authority, with petitioner only receiving parenting time every
6
Pursuant to West Virginia Trial Court Rule 5.04, “[i]t shall be the duty of an
attorney upon learning of an imminent scheduling conflict to give written notice to
opposing counsel, the clerks of all courts, and the presiding judges[…].” While not
dispositive of this matter, we disagree with the Family Court of Upshur County’s ruling
that petitioner’s notice of scheduling conflict was not timely filed. Here, the record is
devoid of evidence to suggest that petitioner’s counsel was dilatory in filing the notice of
scheduling conflict once it was apparent the conflict was imminent.
3
other weekend. 7 In reaching its final determination, the Family Court of Upshur County
relied on West Virginia Code § 48-9-206 (2020). It is from this order the petitioner appeals.
II. STANDARD OF REVIEW
The parameters of our appellate review are well-settled:
“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. Pt., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
“Questions relating to alimony and to the maintenance and custody of the
children are within the sound discretion of the court and its action with respect to such
matters will not be disturbed on appeal unless it clearly appears that such discretion has
been abused.” Syl. Pt., Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). While
such deference is accorded to the findings of fact, the application of law to those facts will
be reviewed under an abuse of discretion standard. The appellate court may reverse for
abuse of discretion if “a material factor deserving significant weight is ignored, when an
improper factor is relied upon, or when all proper and no improper factors are assessed but
7
We note that petitioner did not file any response to the Family Court of Upshur
County’s decision to proceed with the hearing as scheduled. Petitioner did not make any
additional proffers to the Family Court of Upshur County following the May 11, 2022,
hearing. The record is devoid of documentation of any subsequent actions on behalf of the
petitioner or her counsel to address the outcome of the hearing until the filing of this appeal.
This Court reminds counsel of their duty to take every reasonable opportunity to resolve
scheduling conflicts to protect the interest of their clients, and not to rest entirely on filing
a notice of scheduling conflict. Counsel cannot simply fail to appear at one of the scheduled
hearings and hope for salvation.
4
the circuit court [or lower court] makes a serious mistake in weighing them.” Gentry v.
Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). Thus, an appellate
court “will not simply rubber stamp the trial court’s decision when reviewing for an abuse
of discretion[.]” State v, Hedrick, 204 W. Va. 547, 533, 514 S.E.2d 397, 403 (1999). With
these standards in mind, we consider the issue raised on appeal.
III. DISCUSSION
Petitioner asserts one assignment of error in her appellate brief. She argues
that the Family Court of Upshur County abused its discretion when it improperly conducted
a final evidentiary hearing on child custodial allocation without the presence of petitioner
or her counsel after having received notice of the scheduling conflict. Petitioner maintains
that pursuant to West Virginia Trial Court Rules 5.02, 5.03, and 5.05, the Family Court of
Upshur County and the Circuit Court of Webster County should have resolved their
conflicting schedules and the Family Court of Upshur County should have continued the
final hearing. 8 After a review of the record and the applicable law, we find plain error in
the Family Court of Upshur County’s failure to apply the applicable version of West
Virginia Code § 48-9-206. Accordingly, it is not necessary to address petitioner’s
assignment of error.
8
We remind the parties that Rule 5 of the West Virginia Trial Court Rules is
mandatory in its application in assisting courts and litigants with resolving scheduling
conflicts in a prompt manner. The goal of this rule is to have all parties working together
to resolve conflicts. We note that Rule 5 does not mandate any particular resolution to a
given conflict. However, when appropriately utilized by all involved parties, circumstances
such as the situation present in this case should be rare.
5
On April 10, 2021, the Legislature amended West Virginia Code § 48-9-206,
specifically providing that said statute became effective on July 9, 2021. The 2021
amendment substantially changed the allocation of custodial responsibility. On March 12,
2022, the Legislature enacted additional substantive changes to West Virginia Code § 48-
9-206, which require the presumptive application of 50/50 custodial allocation. The 2022
amendment was effective on June 10, 2022, prior to the entry of the final order in this
matter. Each of the amendments to West Virginia Code § 48-9-206 became applicable prior
to the entry of a final order allocating the parties’ custodial rights. Here, the Family Court
of Upshur County considered and applied the facts of the case pursuant to West Virginia
Code § 48-9-206 (2020), without reference to the 2021 or 2022 amendments.
The changes enacted by the Legislature substantively changed the rights
afforded to the parties in this matter. By way of these amendments, the evaluation of child
custody allocation was changed by adding additional factors for consideration and
providing a rebuttal presumption favoring a 50/50 right of allocation. Each of these changes
substantially affected the rights of the parties with regard to their child and, thus, are
substantive in nature. See Miller v. Smith, 229 W. Va. 478, 484, 729 S.E.2d 800, 806
(2012); Pub. Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 335, 480 S.E.2d
538, 544 (1996).
In its amendments to West Virginia Code § 48-9-603, the Legislature
expressly provided when these substantive changes would become applicable. Specifically,
West Virginia Code § 48-9-603 (2021) provides:
6
(d) The amendments to this chapter made during the 2021 session of the
Legislature shall become applicable upon the effective date of those
amendments. Any order entered prior to the effective date of those
amendments remains in full force and effect until modified by a court of
competent jurisdiction.
Further, West Virginia Code § 48-9-603 (2022) states:
(a) The amendments to this chapter enacted during the 2022 regular session
of the Legislature shall become applicable upon the effective date of those
amendments. Any order entered prior to the effective date of those
amendments remains in full force and effect until modified by a court of
competent jurisdiction.
(b) The amendments to this chapter enacted during the 2022 regular
legislative session do not constitute a change in circumstances or other basis
for modification under § 48-9-401 or § 48-9-402 of this code.
Here, in both the 2021 and 2022 amendments to West Virginia Code § 48-9-
603, the Legislature noted its intent that the statute was applicable on the effective date,
except for orders which had already been entered. See Martinez v. Asplundh Tree Expert
Co., 239 W. Va. 612, 613, 803 S.E.2d 582, 583 (2017). The West Virginia Supreme Court
of Appeals has long held “[a] statute that is clear and unambiguous will be applied and not
construed.” Syl. Pt. 1, in part, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted
and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va.
714, 172 S.E.2d 384 (1970). “If the text, given its plain meaning, answers the interpretive
question, the language must prevail and further inquiry is foreclosed.” Appalachian Power
Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).
In the instant case, the Family Court of Upshur County failed to apply the amendments to
West Virginia Code § 48-9-206, despite the clear intent of the Legislature.
7
Rule 10(c) of the West Virginia Rules of Appellate Procedure requires that
every brief provide assignments of error which this court will consider; however, this court
may consider a plain error which is evident from the record and within its jurisdiction even
when not raised by the parties. To trigger application of the “plain error” doctrine, there
must be “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7,
Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996)
(internal citations omitted).
Upon review of this standard, we find that the application of an inoperative
statute is obvious error. When analyzing the substantive differences between the 2020,
2021, and 2022 versions of West Virginia Code § 48-9-206, the substantial impact of the
amendments on a parents’ right to a custodial allocation is clear. Failure to utilize the
applicable statute completely hinders the fairness and integrity of these judicial
proceedings. The Legislature specifically intended these amendments to be applied to cases
pending consideration—those not yet reduced to a final order. West Virginia Code § 48-9-
206, provides the basis for the allocation analysis to be conducted at the final hearing. Such
proceedings are not final and effective until an order is entered by the clerk of the court.9
9
Rule 22 of the West Virginia Rules of Practice and Procedure for Family Court
require all that orders “shall be entered by the court” and “shall contain a provision
directing the circuit clerk to provide certified copies to all parties.” This language is
analogous with the language of Rule 58 of the West Virginia Rules of Civil Procedure,
which requires entry by the clerk before judgments are effective. See State ex rel. W.
Virginia Dep't Of Health And Hum. Res., Child Support Enf't Div. v. Varney, 221 W. Va.
517, 523, 655 S.E.2d 539, 545 (2007); see also Legg v. Felinton, 219 W. Va. 478, 483, 637
8
Accordingly, we conclude that the version of said statute applicable to the Family Court of
Upshur County’s July 8, 2022, final order was not West Virginia Code § 48-9-206 (2020).
We offer no opinion as to the outcome of the final hearing had the correct version of the
statute been applied.
IV. CONCLUSION
For the foregoing reasons, the July 8, 2022, order of the Family Court of
Upshur County is hereby considered to be a temporary custodial allocation order, which
shall remain in place until an evidentiary hearing is conducted pursuant to West Virginia
Code § 48-9-206 (2022). This case is remanded to the Family Court of Upshur County for
further proceedings that are consistent with this opinion. The Clerk is hereby directed to
issue the mandate contemporaneously.
Remanded with Directions.
S.E.2d 576, 581 (2006) (It is a paramount principle of jurisprudence that a court speaks
only through its orders.).
9