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Saundra J. v. Robert S.

Supreme Court of West Virginia

February 15, 2019

Saundra J., Petitioner Below, Petitioner
v.
Robert S., Respondent Below, Respondent

          Kanawha County 2010-D-2381

          MEMORANDUM DECISION

         Petitioner Saundra J., by counsel Claude S. Smith, III, appeals the Circuit Court of Kanawha County's December 21, 2017, order denying her appeal of the Kanawha County Family Court's November 30, 2017, order.[1] In that order, the family court denied petitioner's motion to change venue and held petitioner in contempt for failure to abide by the family court's prior orders regarding visitation between the minor child, M.J., and respondent father. Respondent Robert S., by counsel Brandy L. Hughart, filed a response to petitioner's appeal. On appeal, petitioner argues that the family court erred in finding that it had jurisdiction over the initial custody determination of M.J.

         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 reverses and remands the circuit court's December 21, 2017, order and the family court's November 30, 2017, order due to a lack of jurisdiction. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issues presented.

         In September of 2010, petitioner filed a "Uniform Interstate Family Support/Paternity Petition" in Kanawha County, West Virginia, alleging that respondent was the father of the minor child, M.J. At the time of filing, petitioner and the child were residents of Maryland, and respondent was a resident of West Virginia. In July of 2011, the family court entered a "Final Paternity and Child Support Order" and found that respondent was the biological father of M.J.; that the child had been in petitioner's custody since April of 2010; and that respondent failed to fully support the child during this time. The family court ordered that respondent pay $12, 537.12 dollars in arrears for this period and $783.57 dollars per month in child support. However, the family court made no findings regarding the allocation of custody between the parents or of the implementation of a parenting plan.

         Respondent filed a petition for modification of child support in 2012, but did not request a parenting plan. The family court modified respondent's monthly child support obligation. Later, in June of 2012, the family court entered a supplemental order confirming the modification of child support. In this order, the family court awarded care, custody, and control of the child to petitioner even though neither party requested a child custody determination. The family court also made no specific findings regarding jurisdiction, providing only that "[t]he [c]ourt has jurisdiction of the subject matter and the parties to this action, and venue is proper in this [c]ourt." Respondent filed two subsequent petitions for modification of child support, which were denied.

         In June of 2016, respondent filed a "Petition for Allocation of Custodial Responsibility." In his petition, respondent alleged that petitioner and the child had lived in Prince George's County, Maryland for a period of more than one year, and petitioner refused to allow him meaningful contact with the child. This petition was respondent's first formal motion for contact with the child and a custody determination.

         The family court held a hearing in June of 2016 on respondent's motion. By order entered on November 23, 2016, the court found the following: petitioner and the child have resided in Prince George's County, Maryland, since the child's birth; respondent lived in West Virginia during that time; respondent and the minor child have not developed a bond, but respondent desires to do so; and that a gradual transition period should be implemented so that the child can become acquainted with respondent. Further, the family court ordered that video or telephone calls between respondent and the child continue and that the parties "work together to schedule the visits." The family court made no jurisdictional findings in this order.

         The family court held a status conference in January of 2017.[2] The family court reasoned that no further litigation was necessary in the matter because the prior order established a parenting plan and set forth respondent's child support obligation. Accordingly, the family court ordered that video and telephone calls continue as required in the prior order and dismissed the case from the active docket. The family court included language indicating to the parties that this was a final order and subject to appeal. Neither party appealed this order.

         In July of 2017, respondent filed a "Petition for Order to Show Cause Why Petitioner Should Not Be Held in Contempt" alleging that respondent had one successful video contact with the child, but, despite multiple further attempts, was unable to make further contact due to the child's unavailability or the child's desire not to talk with respondent. Additionally, respondent alleged that his counsel wrote a letter to petitioner in an attempt to "set out specific times that calls would occur." Finally, respondent alleged that petitioner influenced the child and purposefully hindered communication, and that those actions amounted to parental alienation.

          Petitioner filed a "Notice of Foreign Custody Determination" that indicated the Kanawha County Family Court order was registered in the Circuit Court of Prince George's County, Maryland. Additionally, petitioner filed a pro se motion for change of venue alleging that the child lived in Maryland since birth and that Maryland had jurisdiction over the child. This motion was petitioner's first objection to jurisdiction.

         The family court held a hearing on petitioner's motion for change of venue and respondent's order to show cause petition in November of 2017. The family court found that petitioner failed to make the child available for transitional parenting time as required by the June 21, 2016, court order, and that she was willfully in contempt of that order. Further, the family court found that respondent was entitled to "make-up time" for the missed parenting and ordered that the child spend December 22, 2017, through December 31, 2017, with respondent in West Virginia. In regard to jurisdiction, the family court found that no other court has requested jurisdiction during the proceedings and that petitioner never challenged or objected to jurisdiction in West Virginia. Ultimately, the family court denied petitioner's motion and found petitioner in contempt in its November 30, 2017, order. Petitioner appealed the family court's November 30, 2017, order to the circuit court on December 20, 2017. The circuit court found that the family court's order was not clearly erroneous nor did it abuse its discretion and affirmed the family court's order on December 21, 2017. Petitioner now appeals.

         We review the matter under the following standard:

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 ...

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