Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

E.O.R. v. M.D.W.

Supreme Court of West Virginia

March 8, 2018

E.O.R., Petitioner,
v.
M.D.W., Respondent.

         Upshur County 13-D-131

          MEMORANDUM DECISION

         Petitioner, E.O.R.[1] ("Father"), by counsel, Shannon R. Thomas, appeals an order entered in the Circuit Court of Upshur County. In its order, the circuit court refused Father's petition for appeal from an order by the Family Court of Upshur County in which the family court allocated custodial and decision-making responsibility over his son, I.W., 50% to Father and 50% to I.W.'s mother, M.D.W. ("Mother"). Mother, by counsel, David B. DeMoss, filed a response, to which Father filed a reply.[2]

         This Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon consideration of the standard of review, the briefs, oral arguments, and the record presented, we find no error in the circuit court's decision to refuse Father's petition for appeal. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. However, at oral argument, this Court received information from I.W.'s Guardian ad Litem that, after the family court entered its order, circumstances regarding Father's and Mother's ability to share custodial and decision-making responsibility over I.W. may have changed. Therefore, we remand this case to the family court for a new hearing as to whether a change in circumstances warrants a modification of its previous order allocating custodial and decision-making responsibility over I.W. 50% to Father and 50% to Mother. The hearing shall be conducted promptly, but no later than four weeks from the entry of this decision.

         This case arises from a custody dispute between Father and Mother over their child, I.W., who was born in August 2012 and is now five years old. Father and Mother never married and did not live together during I.W.'s lifetime.

         Father's and Mother's relationship was marked with contention, and Mother claims that Father physically abused her on the following three occasions: (1) In summer 2012, Father purportedly pushed Mother to the ground when she was seven months pregnant with I.W.; (2) In June 2013, when I.W. was less than one year old, Father allegedly showed up unannounced at Mother's house, hit her, and tried to leave with I.W.; and (3) In September 2014, when I.W. was two years old, Father struck Mother in the chest with his shoulder during an exchange of I.W. at a local gas station. The September 2014 incident was caught, in part, on the gas station's surveillance tape. A magistrate court issued a domestic violence emergency protective order against Father resulting from the September 2014 incident, but the order was terminated at Mother's request two weeks after it was issued.

         After the purported June 2013 incident, Mother stopped allowing Father to see I.W. In response, in July 2013, Father filed a Petition for Allocation of Custodial Responsibility in the family court. The case remained before the family court for nearly three years, until, on January 31, 2016, the family court entered its order allocating custodial and decision-making responsibility over I.W. 50% to Father and 50% to Mother. Under this order, I.W. was to alternate between his Father's and Mother's household, with exchanges taking place every Friday at a designated gas station.

         In its January 31, 2016, order, the family court weighed the negatives and the positives of allocating shared custodial and decision-making responsibility over I.W. to Father and Mother. As negatives, the family court noted that the Father and Mother have a remarkably contentious relationship which has resulted in behavior that could harm I.W. As to Father, the family court expressed its concern that he might have a propensity to commit domestic violence. The family court indicated in its order that it found Mother's allegations of abuse credible as to the summer 2012 incident (when she was pregnant) and the September 2014 incident (when I.W. was two years old).[3] As to Mother, the family court expressed its belief that her allegation of abuse in June 2013 was not truthful. The family court also found that Mother persistently interfered with Father's relationship with I.W., and "has thrown one impediment after another to the Father's meaningful parenting time with the child."

         As positives, the family court noted that both parents have a loving relationship with I.W. It recognized that Mother has been I.W.'s primary caretaker for his entire life, and it found that Father has demonstrated his willingness to participate in the care, rearing, and support of I.W. The family court also considered testimony from two psychologists who worked with Father, Mother, and I.W. that "50/50 parenting time was the best."

         Accordingly, in its January 31, 2016, order, the family court determined that allocating custodial and decision-making responsibility over I.W. 50% to Father and 50% to Mother was in I.W.'s best interests. However, due to Father's and Mother's contentious relationship, the family court provided that a family court monitor would be appointed to resolve parenting disputes between Father and Mother outside of court, but subject to judicial review. In the same order, the family court denied Father's petition to change I.W.'s last name, and it ordered Father to pay Mother monthly child support in the amount of $438.45.

         Both parties separately petitioned the circuit court for an appeal of the family court's January 31, 2016, order. The circuit court entered an order on March 9, 2017, [4] finding that the family court did not abuse its discretion and denying both parties' separate petitions for appeal.

         To this Court, Father appeals the circuit court's refusal of his petition for appeal from the family court order. He asserts the following nine assignments of error: (1) the family court's allocation of 50% custodial and decision-making responsibility to Mother violated West Virginia Code § 48-9-209 [2008]; (2) the family court's allocation of 50% custodial responsibility to Mother was manifestly harmful to I.W. in violation of West Virginia Code § 48-9-206 [2001]; (3) the family court erred by appointing a family court monitor to resolve parenting disputes between Father and Mother; (4) the family court erred by failing to grant his petition to change I.W.'s last name; (5) the family court erred in calculating child support due to Mother; (6) the family court erred by failing to require Mother to pay Father's attorney fees; (7) the family court erred by resolving certain factual disputes in Mother's favor; (8) the family court erred by referring to Father as a "litigation bully" in its order; and (9) the circuit court failed to give Father's petition for appeal a proper review. Mother does not appeal the circuit court's order. She requests that we affirm the circuit court.

         We are asked whether the circuit court erred by refusing Father's petition for appeal from a family court order. Our standard of review is as follows:

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 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.

         Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d. 803 (2004). With this standard of review in mind, we address Father's assignments of error in turn.

         First, Father argues that the family court's allocation of 50% custodial and decision-making responsibility to Mother violates West Virginia Code § 48-9-209. West Virginia Code § 48-9-209 limits a family court's discretion to award custodial or decision-making responsibility over a child to a parent who has engaged in the conduct listed in subsection (a) of the statute. This conduct includes, in part:

(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated responsibility under a parenting plan:
. . .
(3) Has committed domestic violence[;]
(4) Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.