STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re the marriage/children of: FILED
October 23, 2017
W. Shane H., RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Petitioner Below, Petitioner OF WEST VIRGINIA
vs) No. 16-0729 (Kanawha County 12-D-714)
Heather H.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner W. Shane H., by counsel Tim C. Carrico, appeals the Circuit Court of
Kanawha County’s June 23, 2016, order affirming the Family Court of Kanawha County’s denial
of his request to modify his parenting time.1 Respondent Heather H., by counsel Mark A. Swartz
and Mary Jo Swartz, filed a response. Petitioner filed a reply. On appeal, petitioner argues that
the family court erred in determining that the parties had reached a permanent parenting
agreement, that the courts below erred in not properly allocating custody, and that the lower
courts erred in concluding that a substantial change in circumstances did not exist to warrant
modification of the parties’ parenting plan.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On June 26, 1993, the parties were married. They had two children, E.H. and K.H. On
March 19, 2012, the parties legally separated, and on April 26, 2012, petitioner filed for divorce.
On July 3, 2012, the family court entered an “Agreed Temporary Order,” which ordered that the
parties “shall parent their children on a temporary basis in accord with [petitioner]’s Parenting
Plan as adopted and modified by [respondent]’s Plan.” Petitioner’s parenting plan stated that he
“shall receive at a minimum shared parenting time with the children every other weekend from
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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Friday through Sunday and one evening each week.” The modifications made by respondent’s
plan dealt with the division of holiday time. Both petitioner’s and respondent’s parenting plans
indicated that each was proposed for temporary and permanent use. On July 18, 2013, the “Final
Order of Divorce” was entered, and it incorporated the parenting plan described above.
On December 17, 2013, the family court granted petitioner’s motion for reconsideration
of the July 18, 2013, “Final Order of Divorce” as to equitable distribution. The “Final Order of
Divorce” was vacated, and the July 3, 2012, “Agreed Temporary Order” was reinstated pending
final resolution of the equitable distribution issue. The family court, by later order, advised the
parties that the “Final Order of Divorce” had been vacated in its entirety, not just as to the
equitable distribution issue. It also confirmed reinstatement of the July 3, 2012, “Agreed
Temporary Order.” Thereafter, petitioner moved the family court to adopt a new parenting plan
for temporary and final orders. The new parenting plan proposed additional time for petitioner.
The family court held a hearing on petitioner’s motion and found that “pursuant to West Virginia
Code §48-9-203 the Petitioner has failed to meet the burden necessary to modify a temporary
order herein.” The family court directed that the “Agreed Temporary Order” remain in effect. A
guardian ad litem was appointed, and an evidentiary hearing was held due to the parties’
disagreement over the shared parenting schedules. Following the evidentiary hearing, the family
court denied petitioner’s request to increase his parenting time, and he appealed that decision to
the circuit court.
On appeal to the circuit court, petitioner argued that the family court erred in determining
that the parties agreed to the parenting plan under which they had been operating for the past
several years. Petitioner argued that the family court should have, instead, analyzed the factors
outlined in West Virginia Code § 48-9-206, which addresses the allocation of custodial
responsibility where not otherwise resolved by agreement of the parents. Petitioner also argued
that the family court erred in concluding that he failed to demonstrate facts sufficient to warrant
modification of the parenting plan. The circuit court found that, even assuming the family court
erred in concluding that the parenting plan was agreed to by the parties, the family court,
nonetheless, followed West Virginia Code § 48-9-206(a) and allocated custodial responsibility
“so that the proportion of custodial time the child spends with each parent approximates the
proportion of time each parent spent performing caretaking functions for the child prior to the
parents’ separation[.]” The circuit court did not make specific findings relative to petitioner’s
request for modification, but it affirmed the family court’s ruling on petitioner’s request for
modification. This appeal followed.
On appeal to this Court, petitioner advances three arguments: first, the family court erred
in determining that the parties had reached a permanent parenting agreement as contemplated by
West Virginia Code § 48-9-201(a); second, the courts below erred in not properly allocating
custody to promote all of the parenting goals set forth in West Virginia Code § 48-9-206; and,
third, a substantial change in circumstances existed warranting modification of the family court
orders adopting the temporary parenting agreement.
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 circuit court judge under the clearly erroneous
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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, 475, 607 S.E.2d 803, 804 (2004).
Petitioner first claims that the parties had not reached an agreement on parenting, as
contemplated by West Virginia Code § 48-9-201(a). Petitioner’s second assignment of error,
which ties in to his first, is that, because no such agreement was reached, the court was required
to allocate custody to satisfy all of the parenting goals set forth in West Virginia Code § 48-9
206(a), which it failed to do. West Virginia Code § 48-9-201(a) provides that “[i]f the parents
agree to one or more provisions of a parenting plan, the court shall so order[.]” West Virginia
Code § 48-9-206(a) provides that
[u]nless otherwise resolved by agreement of the parents under section 9-201 or
unless manifestly harmful to the child, the court shall allocate custodial
responsibility so that the proportion of custodial time the child spends with each
parent approximates the proportion of time each parent spent performing
caretaking functions for the child prior to the parents’ separation[,] . . . except to
the extent required under section 9-2092 or necessary to achieve any of the
following objectives[.]
(Footnote added.) Several objectives are listed in the statute, but petitioner contends that the
lower courts erred specifically in failing to consider the following objectives:
(4) To protect the child’s welfare when, under an otherwise appropriate
allocation, the child would be harmed because of a gross disparity in the quality
of the emotional attachments between each parent and the child or in each
parent’s demonstrated ability or availability to meet a child’s needs;
....
(6) To avoid an allocation of custodial responsibility that would be
extremely impractical or that would interfere substantially with the child’s need
for stability in light of economic, physical or other circumstances, including the
distance between the parents’ residences, the cost and difficulty of transporting
the child, the parents’ and child’s daily schedules, and the ability of the parents to
cooperate in the arrangement[.]
Id. at § 48-9-206(a)(4) and (a)(6).
The circuit court found that
assuming arguendo that the Family Court erred when it found that the parenting
plan was agreed to by the parties pursuant to W. Va. Code § 48-9-201(a), the
2
West Virginia Code § 48-9-209 is inapplicable to the resolution of the instant issue.
3
Family Court nonetheless followed W. Va. Code § 48-9-206 and allocated
“custodial responsibility so that the proportion of custodial time the child spends
with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents’ separation.”
The circuit court did not abuse its discretion in so finding. The circuit court adopted petitioner’s
parenting plan with limited exceptions by respondent, and the parties operated under this plan for
years. The undisputed evidence is that respondent performed the vast majority of caretaking
functions for the children prior to the parents’ separation. West Virginia Code § 48-9-206(a)
directs that, unless otherwise agreed to by the parties, custodial responsibility be allocated so as
to mimic preseparation caretaking, except in those situations where that arrangement fails to
achieve any of the enumerated objectives. Petitioner has not argued that his proposed custody
arrangement is “necessary to achieve” objectives four or six; rather, he argues that these
objectives could be better achieved by adoption of his parenting plan. This argument fails to
establish that the circuit court abused its discretion in concluding that the requirements of West
Virginia Code § 48-9-206 had been met, even assuming the parties had not reached a parenting
agreement.
Petitioner’s final assignment of error is that the family court erred in finding that a
substantial change in circumstances did not exist to warrant modification of the parenting plan.
Petitioner argued that, when he filed his proposed parenting plan in 2012, one of the parties’
children was only three weeks old and the other was two years old. Since that time, the children
have grown older and have developed a more substantial bond with petitioner. Petitioner also has
more employees at his business, which allows him more time away from work to spend with his
children. The family court’s order found that petitioner failed to establish a change in
circumstances because “[e]veryone knew these children were likely to get older. This should not
come as a surprise to anyone.” This finding was affirmed by the circuit court. Petitioner contends
that this conclusion is in contravention of this Court’s holding in Skidmore v. Rogers, 229 W.Va.
13, 725 S.E.2d 182 (2011).
In Skidmore, we held that
West Virginia Code § 48-9-401(a) (2009) permits a court to modify a
parenting plan order on the basis of a substantial change in circumstance that
arises after the parenting plan order is entered if such change was not provided for
in the parenting plan and modification is necessary to serve the best interests of
the child.
229 W.Va. at 15, 725 S.E.2d at 184, Syl. Pt. 3. We found that
the plain language of this statute does not prohibit modifications of a parenting
plan order simply because the change in circumstance could have been
anticipated when the order was entered. Rather, it permits modifications of a
parenting plan order “on the basis of facts that . . . have arisen since the entry of
the prior order and were not anticipated therein.”
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Id. at 21, 725 S.E.2d at 190 (citation omitted). We also found that a “significant advance in age,
which was not provided for in the original parenting plan, is a substantial change of circumstance
on which a modification of the parenting plan order may be based.” Id. An advance in age,
however, is not in and of itself a sufficient basis to modify a parenting plan. A party must also
establish that “modification is necessary to serve the best interests of the child.” Id. at 15, 725
S.E.2d at 184, Syl. Pt. 3. The lower courts found that modification was not in the best interests of
the children for several reasons. First, petitioner was unaware, for a period of about seven
months, that the parties’ younger child had changed preschools. Petitioner also failed to bring
one of his children to a doctor’s appointment on the correct day, despite having been advised of
the appointment change and supposedly checking his calendar to ensure that the date worked for
him. The family court took issue with petitioner’s assertion that it would not present a challenge
for him to make a thirty to forty-five minute drive in the morning to get his son to kindergarten
in time for breakfast at 7:30 a.m. The family court found that “[t]hese kinds of events, and
others, suggest that these boys may be less of a priority than he has led the current guardian to
believe.” Further, the family court “question[ed] the guardian’s conclusion that it is actually in
the best interests of these children [to] spend substantially more time with their [f]ather, rather
than primarily their [m]other, who has made the children he[r] full-time ‘job.’” Thus, because
petitioner failed to demonstrate that the modification was in the children’s best interest, we find
that the circuit court did not abuse its discretion in affirming the denial of petitioner’s request for
modification.
For the foregoing reasons, we affirm the Circuit Court of Kanawha County’s June 23,
2016, order affirming the Family Court of Kanawha County’s denial of petitioner’s request to
modify his parenting time.
Affirmed.
ISSUED: October 23, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
DISSENTING, in part:
Justice Margaret L. Workman
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