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In re Marriage/Children of W. Shane H.

Supreme Court of West Virginia

October 23, 2017

In re the marriage/children of: W. Shane H., Petitioner Below, Petitioner
v.
Heather H., Respondent Below, Respondent

         Kanawha County 12-D-714

          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

          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 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 9-209[2] 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 ...

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