IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
NICHOLE T., January 10, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-24 (Fam Ct. Hardy Cnty. No. FC-16-2011-D-73) OF WEST VIRGINIA
JAMIE G.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Nichole T. 1 appeals the final order denying modification of the parties’
50/50 allocation of custodial responsibility entered by the Family Court of Hardy County
on July 8, 2022. She asserts that the family court erred in finding that there was no
substantial change in circumstances based solely on the minor child’s father, Jamie G.,
using corporal punishment as a disciplinary method. The child’s guardian ad litem responds
expressing the opinion that the family court should have modified custody. Respondent
Jamie G. responds in support of the family court’s ruling. Nichole T. did not file a reply. 2
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 lower tribunal’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
In recent years, Nichole T. and Jamie G. have exercised court-ordered shared 50/50
custody of their minor daughter, who is now twelve years old. The child alternates between
each parent’s home on a weekly basis. Notably, in an order entered in August of 2015, the
family court directed that neither party was to utilize corporal punishment to discipline the
child.
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
Petitioner is represented by Lawrence E. Sherman, Jr., Esq. Respondent is
represented by Nathan H. Walters, Esq. The guardian ad litem is Marla Zelene Harman,
Esq.
1
In November of 2021, Nichole T. filed a motion asking the family court to modify
the custody arrangement because Jamie G. has used corporal punishment on the child with
a belt and a paddle. She reported that use of the paddle had resulted in the child urinating
on herself on more than one occasion, and even the threat of corporal punishment by Jamie
G. caused the child to experience overwhelming fear, discomfort, and emotional abuse.
Nichole T. represented that the child wished to live full-time with Nichole T. and wanted
very little visitation with Jamie G. The child reported that other children in Jamie G.’s
home were not similarly punished. Nichole T. also complained that the child was made to
share a bedroom with her two stepbrothers, even though Jamie G. had claimed six years
earlier that he was building a room in his home for her.
Jamie G. admitted to the family court that he had used corporal punishment, but he
opined that it was appropriate discipline for the child’s pattern of misbehavior including
stealing a cellular telephone from a foster child at school and then deleting all of the data
from the telephone. Jamie G. disputed the reports about the child urinating herself, and he
asserted that Nichole T. and her partner spanked the child as a disciplinary method.
Moreover, Jamie G. contended that Nichole T. discussed these custody proceedings in front
of the child, and that construction of the child’s room had been delayed but was almost
completed. 3
The guardian ad litem filed a report with the family court indicating her belief that
corporal punishment should never be used on children. The guardian ad litem
recommended that Jamie G.’s parenting time should be reduced.
After considering the evidence and arguments, the family court found that the child
had certain behavioral issues that potentially warranted corporal punishment, and the child
“very much needed to understand and know the meaning of ‘right’ and ‘wrong,’” but that
Jamie G. had not instituted the punishment in an appropriate manner. The family court
further found that none of the issues described by Nichole T. constituted a substantial
change in circumstances warranting a modification of the existing parenting plan. The court
ordered that neither party, nor each party’s significant other, shall use corporal punishment
on the child. The court also included other provisions in the final order in an effort to
improve the parties’ co-parenting skills. 4
Nichole T. now appeals the family court’s order denying modification of the
parenting plan. When reviewing a family court order, this Court applies the following
standard of review:
3
In his brief to this court, Jamie G. represents that the child’s bedroom is now
finished.
4
According to the parties, the child has indicated that the corporal punishment
ceased after entry of the family court’s April 25, 2022, order.
2
“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., No. 22-IA-2, __ W. Va. __, __, __ S.E.2d __, __, 2022 WL
17098574, at *3 (Ct. App. 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying
standards for appellate court review of family court order).
With regard to modification of a parenting plan, West Virginia Code § 48-9-401(a)
(2022) provides as follows:
A court shall modify a parenting plan if it finds, on the basis of facts that
were not known or have arisen since the entry of a prior order and were not
anticipated in the prior order, that a substantial change has occurred in the
child or of one or both parents and a modification is necessary to serve the
best interests of the child.
The Supreme Court of Appeals of West Virginia has held that “not anticipated” means the
parenting plan did not make provisions for the change, not that the change in circumstances
could have been anticipated when the original parenting plan order was entered. Skidmore
v. Rogers, 229 W. Va. 13, 21, 725 S.E.2d 182, 190 (2011).
On appeal, the parties rehash arguments that they made to the family court. Nichole
T. asserts that the child experienced fear and emotional abuse because of Jamie G.’s
corporal punishment. She contends that the family court erred by disregarding the guardian
ad litem’s recommendation to modify custody, and that the family court’s ruling is not in
the child’s best interests. Jamie G. argues that his use of corporal punishment was not
excessive, there was no substantial change in circumstances warranting modification, the
child was also spanked in Nichole T.’s home, and the guardian ad litem’s personal opinion
regarding corporal punishment should be disregarded.
After review of the record and the parties’ arguments, we conclude that the family
court did not abuse its discretion in denying the petition to modify custody. Both parties
disregarded the 2015 prohibition on corporal punishment, and this situation does not
constitute a substantial change in circumstances. Further, the family court did not make
any finding that the child was endangered. Although the guardian ad litem recommended
modification, the ultimate determination regarding the best interests of a child remains a
function of the trial court. See State ex rel. Jeanne U. v. Canady, 210 W. Va. 88, 97, 554
S.E.2d 121, 130 (2001).
3
Accordingly, we affirm.
Affirmed.
ISSUED: January 10, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
4