IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
EMMANUEL R., February 8, 2024
Respondent Below, Petitioner C. CASEY FORBES, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-335 (Fam. Ct. Cabell Cnty. No. 08-D-790)
DANIELLE R.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Emmanuel R.1 (“Father”) appeals the Family Court of Cabell County’s
July 10, 2023, order denying his petition for a parenting plan modification. Respondent
Danielle R. (“Mother”) did not participate in this appeal.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 that there is error in the lower tribunal’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 decision is remanded for further
proceedings consistent with this decision.
The parties are the parents of D.R., currently age sixteen. Early in the child’s life,
Father had semi-regular visits with the child when Father resided in Virginia and Mother
resided in Ohio with the child.
The issues leading up to this appeal arose in October of 2014 when a temporary
custody hearing was held. It is unclear from the record what type of petition was filed or
which party filed it. However, the family court entered a temporary order on January 12,
2015, holding that it was in the child’s best interest to have phased-in visitation with Father
because a significant period of time had passed since he last exercised parenting time.
1
To protect the confidentiality of the juvenile 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
Emmanuel R. is self-represented. Danielle R. did not participate in the appeal.
1
Therefore, it was ordered that Father would begin the phased-in visitation with Skype
conversations with the child every Sunday evening for fifteen minutes. The final hearing
was held on September 29, 2015, but Father failed to appear. At that hearing, the family
court held that Father had not meaningfully participated in the court-ordered phone calls,
and that if he desired to have future phone calls with the child, he would be required to pay
Children’s First a fee to monitor the calls prior to a call-schedule being reestablished.
In late 2016, Father filed a petition for modification. On October 6, 2016, the family
court held the modification hearing and entered its order on October 7, 2016. The family
court held that because Father failed to comply with or appeal the last order, his petition
for modification was denied.
At some point in early 2023, Father filed another petition for modification, seeking
shared decision-making and equal custody of the child, which he hoped to exercise during
the summer and holidays. The modification hearing was held on June 27, 2023. Father
appeared by phone and alleged that Mother had alienated him from the child. Mother
denied the allegations and informed the family court that D.R. was present and available
to speak regarding her desires. Father objected to having D.R. speak with the family court.
However, the family court decided to conduct an in-camera interview with D.R., who was
age fifteen at that time. D.R. was deemed sufficiently mature, and she expressed a firm and
reasonable preference to have no communication with Father, as it had been six years since
Father had any contact with her. Additionally, she assured the family court that Mother had
never interfered with or discouraged a relationship with Father. The family court held that
it was not in D.R.’s best interest to visit Father, but also that she was mature enough to
decide if and when she wanted to contact him. Father’s petition to modify was denied by
order entered on July 10, 2023. It is from that order that Father now appeals.
In his appeal, Father raises four related assignments of error. He asserts that the
family court erred by not expressing how a 50-50 custody arrangement would be harmful
to D.R. and by failing to make specific findings of fact and conclusions of law regarding
the custody presumption under West Virginia Code § 48-9-206(d) (2022). Father further
asserts that the family court relied on the wrong evidence in making its decision, as there
was evidence of fraud, misconduct, and misrepresentation by Mother. Upon review, we
find that Father’s argument regarding the family court’s lack of a 50-50 analysis has merit.
West Virginia Code § 48-9-206(d) (2022)3 makes it clear that final parenting plan
orders must include specific findings of fact if the family court first finds that a substantial
3
West Virginia Code § 48-9-206(d) states, in part, “[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.”
2
change in circumstances has occurred pursuant to § 48-9-401(a).4 Additionally, West
Virginia Code § 48-9-209 (2022) provides a non-exclusive list of factors to be considered
when making findings regarding custody. Here, the family court’s July 10, 2023, order not
only lacks analysis regarding whether there had been a substantial change in circumstances,
but it also lacks a factual analysis for adopting a parenting plan that provides for an unequal
share of parenting time as required pursuant to the above-cited Code sections.
For the foregoing reasons, we remand this case to the family court with directions
to enter an order with sufficient findings of fact and conclusions of law to facilitate a
meaningful appellate review. See, e.g., Melvin L. v. Brianna W., No. 22-ICA-295, 2023
WL 3581499, at *2 (W. Va. Ct. App. May 22, 2023) (memorandum decision) and Daniel
Y. v. Anne Y., No. 23-ICA-34, 2023 WL 7202961, at *3 (W. Va. Ct. App. Nov. 1, 2023)
(memorandum decision) (requiring family court orders to set out specific findings of fact
and conclusions of law to facilitate a meaningful appellate review). Upon remand, the
family court may reach the same conclusion. However, the family court must provide
findings of fact and conclusions of law detailing whether there had been a substantial
change in circumstances, and if a substantial change in circumstances is found, whether the
presumption of 50-50 custody was rebutted.5 Such findings and analysis are required by
statute and are necessary for this Court to conduct meaningful appellate review should
4
West Virginia Code § 48-9-401(a) states,
Except as provided in § 48-9-402 or § 48-9-403 of this code, a court shall
modify a parenting plan order if it finds, on the basis of facts that were not
known or have arisen since the entry of the prior order and were not
anticipated in the prior order, 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.
5
While it does not change the outcome here, we urge family courts to adhere to the
procedure outlined in Rule 8 of the Rules of Procedure for Child Abuse and Neglect
Proceedings concerning notice, attorney participation, and recording.
Rule 8(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
specifies that attorneys may be present during in camera interviews of children. If the court
determines that children may be intimidated by the presence of attorneys, the court shall
have the interview recorded and make the recording available to the attorneys before the
hearing resumes. Under exceptional circumstances, the court may elect not to make the
recording available, but must include its reasoning on the record. Additionally, attorneys
must be given a reasonable opportunity to submit questions or topics to the court before
interviews are conducted.
3
either party decide to appeal the amended order. 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.
Remanded.
ISSUED: February 8, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
4