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John L. v. Laura W.

Supreme Court of West Virginia

April 9, 2018

John L., Petitioner/Appellant Below, Petitioner
v.
Laura W., Respondent/Appellee Below, Respondent

          (Monongalia County 12-D-456)

          MEMORANDUM DECISION

         Petitioner John L., by counsel Daniel R. Grindo, appeals the Circuit Court of Monongalia County's March 1, 2017, order affirming the family court's final order.[1] Respondent Laura W. did not file a response. On appeal, petitioner argues that the circuit court erred in concluding that certain rules do not apply to pro se litigants, denying his petition to modify, and allowing respondent to present evidence not previously disclosed.

         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, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On June 5, 2013, the parties were divorced and the family court entered a parenting plan governing their two children. Respondent was designated as the parent with primary custodial responsibility and petitioner, who lives in Texas, was given custodial responsibility every school spring break, Thanksgiving break, a portion of the school Christmas break, and for seven continuous weeks each summer. Subsequent to the entry of this order, petitioner filed a petition to modify and petition for contempt. Petitioner sought modification of the parenting plan so that he would be designated the primary custodial parent. Petitioner also sought to have respondent held in contempt for relocating to North Carolina without providing advance notice and in violation of the family court's prohibition pending resolution of the petition for modification. Petitioner also sought to have respondent held in contempt for her failure to arrange counseling for their children, as required by prior court order.

         Finding that the proposed modification was not in the children's best interests, the family court denied petitioner's petition to modify the parties' parenting plan. In reaching this conclusion, the family court noted that, when the parties were together, respondent was a stay-at-home mother and the children's primary caretaker. Further, the children had remained in respondent's primary care since the parties' separation, except for a five-month period in 2015.[2]Although the family court noted that the children, who were ten years old and twelve years old, were not of an age where their wishes were controlling, it nonetheless noted that they expressed their desire to remain in respondent's primary care, and these wishes have remained consistent since the filing of the divorce petition in 2012. Moreover, the guardian ad litem recommended that it was in the children's best interests to remain in respondent's primary care.

         Nonetheless, the family court also found that respondent had "almost no credibility[.]" The family court acknowledged that respondent mischaracterized her relationship with a young man, with whom she became romantically involved when he was only sixteen years old. Respondent denied a continuing relationship with him, but, in fact, married him in the summer of 2016. Respondent also informed the family court that she had no intention of moving to North Carolina to live with the young man prior to a final ruling; however, respondent "almost immediately" moved to North Carolina with the children to live with him.

         The family court further found that respondent had ignored the court's orders regarding counseling for the children on multiple occasions. Although respondent testified that she had begun counseling for the children in North Carolina, she produced no substantiating evidence. Thus, the family court found that respondent had been in contempt of the court's orders at different times in the past "without question." The question before the family court became, "not whether [respondent] deserves to be sanctioned - she does - but rather what sanction might be appropriate." Ultimately, the family court determined that modifying the parties' parenting plan to name petitioner the primary custodial parent would not "improve the children's lives, and indeed the [c]ourt is inclined to believe the children would suffer somewhat were they to be placed in the primary care of [petitioner]."[3] Conversely, the children were reportedly doing well in school while in respondent's care, described a positive relationship with respondent's family, and appeared healthy. Despite having reservations about each parent and their home environment and finding that respondent was in contempt, the family court ultimately concluded that the children's best interests would not be served by a modification of the parenting plan. As a sanction for respondent's contempt, the family court awarded petitioner $600 for his "cost and trouble in seeking to enforce the orders." The family court memorialized these findings and conclusions in its December 29, 2016, "Modification and Contempt Order."

         Petitioner appealed this order to the circuit court. Petitioner raised three assignments of error: first, the lower court erred in refusing to modify the parenting plan in light of respondent's continued contempt, interference with petitioner's access to the children, relocation in violation of West Virginia Code § 48-9-403, perjury, and refusal to provide the children with court-ordered counseling. Second, the lower court erred in taking the children's testimony in violation of the procedures set forth in Rule 17 of the Rules of Practice and Procedure for Family Court and Rule 8(b) of the Rules of Practice and Procedure for Child Abuse and Neglect Proceedings. Third, the lower court erred in permitting respondent to testify and offer evidence after failing to participate in discovery.

         The circuit court affirmed the family court's December 29, 2016, order. The circuit court found that respondent's relocation did not warrant modification of the parenting plan because the relocation did not impair petitioner's ability to exercise his custodial responsibilities.[4] The circuit court also found that the move did not amount to a change in circumstances warranting modification because the change does not negatively impact the proportionality of his custodial responsibilities. Further, the children's best interests continue to be best served by remaining in respondent's primary custodial care.

         With respect to respondent's failure to consistently enroll the children in court-ordered counseling, the circuit court concluded that respondent has not so neglected their mental health so as to warrant terminating her primary custody. The circuit court noted no "present refusal, failure or inability" to provide the children with counseling. Thus, it found that the children were not being neglected under West Virginia Code. Even if they were, a proper "limit" would be to admonish respondent.

         In addressing petitioner's second assignment of error concerning the children's testimony, the circuit court found that the family court complied with the relevant rules. The circuit court noted that both parties appeared pro se before the family court, and pro se litigants are not entitled to be present during the interview or review the children's testimony.

         Lastly, the circuit court found petitioner's argument that respondent could not testify on her own behalf before the family court "patently absurd[:] . . . . Essentially, [petitioner] asserts that his due process rights were violated because [respondent] was afforded hers." Thus, it found no abuse of discretion in the family court's allowing respondent to testify. These rulings were memorialized in an order entered on March 1, 2017, and it is from this order that petitioner appeals.

         We have previously held that

[i]n 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 ...

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