IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 8, 2024
JESSE C.,
C. CASEY FORBES, CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-169 (Fam. Ct. Harrison Cnty. No. FC-17-2019-D-35)
VERONICA C.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Jesse C.1 (“Father”) appeals the Family Court of Harrison County’s
March 21, 2023, final order denying his petition for modification regarding custody and
child support of the parties’ minor child, G.C. Respondent Veronica C. (“Mother”) filed a
response in support of the family court’s decision.2 Father did not file a reply. The issue on
appeal is whether the family court erred in finding that an equal 50-50 custody arrangement
was not in the child’s best interest.
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. For the
reasons stated below, this case is remanded to the family court with directions to enter a
new order with sufficient findings of fact and conclusions of law.
The parties were divorced by final order entered on July 22, 2019, which
incorporated their mediated parenting plan. Under the terms of the original parenting plan,
the parties agreed that Mother would have primary shared custody of G.C. to accommodate
Father’s work schedule. It was agreed that Father would receive approximately 104
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
Father is represented by Jeffrey M. Strange, Esq. Mother is represented by Larry
W. Chafin, Esq., and Debra V. Chafin, Esq.
1
overnight visits per year.3 However, shortly after entry of the final divorce order, Father’s
work schedule changed, and the parties operated under a de facto parenting plan for more
than two years. Under this plan, Father received approximately seventy-eight overnight
visits per year.4 Father left this employment in July of 2022.
Father started a new job in September of 2022, working night shift on an alternating
2/2/3 schedule.5 He works twelve-hour shifts, and every other week he works an extra eight
hours of overtime. Mother works full-time and has six consecutive days off during
alternating weeks.6 In October 2022, Father filed a petition for modification of custody and
child support regarding G.C. and on February 27, 2023, the family court held a hearing on
the petition. The court denied Father’s petition for a 50-50 custody arrangement because it
found that Father had failed to prove the modification was in the child’s best interest.
Instead, the family court increased Father’s visits to 130 overnight visits per year.7 The
final order was entered on March 21, 2023, and this appeal followed.
When reviewing the order of a family court, we apply the following standard of
review:
“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).
3
Father’s work schedule consisted of fifteen consecutive days on and six days off.
He received parenting time all six of the days he was off work. Thus, he received six
overnight visits every three weeks.
4
Due to Father’s new work schedule, he was only able to exercise parenting time
on alternating weekends from Friday afternoon to Monday morning, which was three
overnight visits every two weeks.
5
A 2/2/3 schedule is described as two nights on, two nights off, three nights on, two
nights off, two nights on, three nights off, etc. Father works from 7:00 p.m. to 7:00 a.m.
6
Mother works twelve-hour shifts. She works Monday, Tuesday, and Wednesday,
has Thursday through Tuesday off, works Wednesday, Thursday, and Friday, has Saturday
and Sunday off, etc.
7
Father’s visits were increased from three overnight visits every two weeks
pursuant to the parties’ de facto agreement, to five overnight visits every three weeks.
2
Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);
accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate review of a
family court order).
On appeal, Father first contends that the family court erred by allowing exhibits
faxed by Mother to be admitted in violation of the court’s scheduling order, which required
witness lists and exhibits to be exchanged by the parties no later than January 9, 2023. We
are unpersuaded by this argument.
The scheduling order stated, “[y]ou may deliver these items in person or you may
mail them by REGULAR mail, not certified, to the other party or parties.” Mother’s
counsel faxed her witness list and exhibits to Father’s counsel on January 9, 2023. Father’s
counsel provided his witness list and exhibits to Mother’s counsel on February 9, 2023.
Rule 5(b) of the West Virginia Rules of Civil Procedure states, in part, that “[s]ervice upon
the attorney or upon a party shall be made by delivering a copy to the attorney or party . .
. or by facsimile transmission to the attorney or party[.]” Rule 12.04 of the West Virginia
Trial Court Rules further states, “[s]ervice of any document in a civil action, other than
original process, may be made by facsimile transmission subject to the provisions of these
rules, other applicable rules and statutes, and W.Va. R.Civ.P. 5[.]” During the final hearing,
the family court acknowledged that while it did not specifically authorize documents to be
provided by facsimile, the order did not prohibit that form of service.
As his second assignment of error, Father argues that the family court erred by
finding the parties had entered into a de facto agreement that reduced his custodial time
after entry of the July 22, 2019, final divorce order. He avers that the family court spent
most of the hearing typing on its computer instead of hearing relevant testimony.
Specifically, he argues the parties’ testimony reflects that he had visitation as his schedule
allowed, which was more than every other weekend. Upon review, we find that this
assignment of error lacks merit.
As a result of Father’s change in work schedule, he exercised seventy-eight
overnight visitations per year rather than 104 overnight visitations per year as reflected in
the original parenting plan. Upon review of the family court record, the parties’ testimony
during the February 27, 2023, final hearing revealed that they would occasionally deviate
from their de facto agreement to accommodate Father’s work schedule. Nevertheless,
contrary to Father’s assertion, the occasional deviation did not alter their agreement so
much that it increased his visitation. Their de facto agreement was solely due to Father’s
new work schedule, which ultimately reduced his visitation with G.C.
Lastly, Father’s remaining assignments of error contend that the family court abused
its discretion when it failed to award 50/50 custody by concluding that the modification
3
was not in the child’s best interest.8 The family court found that Father’s new job was a
substantial change in circumstances pursuant to West Virginia Code § 48-9-401 (2022),9
but ultimately denied his request for 50/50 custody because Father failed to prove that the
modification was in G.C.’s best interest. Father argues that the family court erred in its
finding because Mother testified it was in the child’s best interest to spend more time with
Father. However, Father’s interpretation of Mother’s testimony is misconstrued. Although
Mother testified that it was in the child’s best interest to spend more time with him, she
went on to explain that his 2/2/3 nightshift schedule was not in the child’s best interest; she
was further concerned about the child being left alone at night with a non-relative while
Father was at work.
The family court, in denying Father’s request for 50-50 custody, reasoned it was not
in the child’s best interest to adjust her schedule so drastically when she is accustomed to
only spending approximately seventy-eight overnights with Father per year. Additionally,
the court found that Father would undoubtedly be sleeping on some of his custodial days
due to his night shift schedule. The court specifically found that Father was required to
prove that the modification of custody was in the child’s best interest pursuant to West
Virginia Code § 48-9-401, which he failed to do.
Although Father assigns error regarding 50-50 custodial allocation not being in the
child’s best interest, his argument is misplaced but there is error, nonetheless. The family
court applied the incorrect burden in determining whether the modification was in the
child’s best interest. West Virginia Code § 48-9-102a (2022)10 makes it clear that 50-50
custodial allocation is rebuttably presumed to be in the best interest of the child. Thus,
Father is not required to prove that 50-50 custodial allocation is in the child’s best interest.
However, Mother is entitled to produce evidence in an effort to rebut the 50-50
presumption. Additionally, West Virginia Code § 48-9-206(d) (2022) requires final
8
It appears that Father’s third and fourth assignments of error present a single issue.
See generally Tudor's Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d
231, 237 (2012) (stating that “the assignments of error will be consolidated and discussed
accordingly”).
9
West Virginia Code § 48-9-401 states, in-part, “a court shall modify a parenting
plan order if it finds . . .that 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.”
10
West Virginia § 48-9-102a states, “[t]here shall be a presumption, rebuttable by a
preponderance of the evidence, that equal (50-50) custodial allocation is in the best interest
of the child.”
4
parenting plan orders to contain specific findings of fact to support the court’s decision.11
West Virginia Code § 48-9-209 (2022) provides a non-exclusive list of factors a court shall
consider when making such findings.
Here, the family court erroneously concluded that it was Father’s burden to prove
the proposed 50-50 custodial allocation was in the child’s best interest. When a court finds
a substantial change of circumstances has occurred pursuant to a petition for modification
of custody, 50-50 custodial allocation is presumed to be in the best interest of the child and
shall be awarded unless rebutted by a preponderance of the evidence. W. Va. Code § 48-
9-102a. West Virginia Code § 48-9-603(a) (2022) controls the effectiveness of the 50-50
presumption in this matter, providing that “[the presumption] shall become applicable upon
the effective date of [the] amendment.” Accordingly, any best interest analysis conducted
after June 10, 2022, the effective date of West Virginia Code § 48-9-102a, is required to
consider the 50-50 presumption. As to the burden of proof, the presumption points toward
equal parenting time; therefore, any party seeking to deviate from a 50-50 allocation must
overcome the presumption.
With that in mind, specific findings of fact and conclusions of law are required when
there is a deviation from 50-50 custodial allocation pursuant to West Virginia Code § 48-
9-206(d). Jonathon F. v. Rebekah L., 247 W. Va. 562, 565, 883 S.E.2d 290, 293 (Ct. App.
2023). Thus, the family court must analyze whether Mother rebutted the presumption to
justify the deviation. Upon remand, the family court may reach the same conclusion.12
However, any party seeking more than 50-50 custodial allocation has the burden of
rebutting the presumption and a proper analysis must be performed by the court.
For the foregoing reasons, we affirm the family court’s ruling with respect to
Father’s first two assignments of error, reverse the family court’s finding that the burden
was on Father to prove that 50-50 custodial allocation was in the child’s best interest, and
remand this case to the family court with directions to issue an order with specific findings
of fact and conclusions of law in accordance with West Virginia Code §§ 48-9-206 and 48-
9-209 by adhering to West Virginia Code § 48-9-102a. The final order is hereby converted
to a temporary custodial allocation order until the entry of a new final order consistent with
this decision is issued by the family court.
Affirmed, in part, Reversed, in part, and Remanded.
11
West Virginia Code § 48-9-206(d) states, “[t]he court’s order determining
allocation of custodial responsibility shall be in writing, and include specific findings of
fact and conclusions of law supporting the determination.”
12
On remand, child support should be modified if the family court reaches a
different conclusion regarding custodial allocation after performing the required analysis.
5
ISSUED: February 8, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
6