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Nicole L. v. Steven W.

Supreme Court of West Virginia

March 21, 2019

NICOLE L., Petitioner Below, Petitioner
v.
STEVEN W., Respondent Below, Respondent

          Submitted: February 6, 2019

          Appeal from the Circuit Court of Harrison County The Honorable Christopher J. McCarthy, Judge Civil Action No. 16-D-225-1

          Delby B. Pool, Delby B. Pool & Associates Clarksburg, West Virginia Attorney for Petitioner

          Debra V. Chafin, Larry W. Chafin, Law Office of Debra V. Chafin, PLLC, Clarksburg, West Virginia, Attorneys for Respondent

          JENKINS, JUSTICE

         SYLLABUS BY THE COURT

         1. "'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)." Syllabus point 1, Storrie v. Simmons, 225 W.Va. 317, 693 S.E.2d 70 (2010) (per curiam).

         2. For purposes of the parental relocation statute, West Virginia Code § 48-9-1 et seq., "custodial responsibility" includes duties innate to parenthood such as those defined as caretaking functions in West Virginia Code § 48-1-210 (LexisNexis 2015).

         3. Pursuant to West Virginia Code § 48-9-403(d)(1) (LexisNexis 2015), if a parent who is exercising a significant majority of the custodial responsibility for a child proves that a proposed relocation is in good faith for a legitimate purpose, the location of the proposed move will be presumed to be reasonable. To overcome this presumption, the opposing parent must prove that the purpose of the move is substantially achievable without moving or by moving to a location that is substantially less disruptive of the opposing parent's relationship to the child.

         This is an appeal of an order entered December 7, 2017, in the Circuit Court of Harrison County, that affirmed a family court order denying the petition for modification filed by Petitioner Nicole L. ("Mother")[1] which was based on relocation under West Virginia Code § 48-9-403 (LexisNexis 2015). Mother filed the petition seeking to relocate with her children to Kentucky, and Respondent Steven W. ("Father") opposed the relocation. After the family court denied Mother's petition for relocation, she appealed the matter to the circuit court where the denial was upheld. While maintaining that the lower courts properly denied Mother's petition for relocation, Father also set forth two cross-assignments of error, [2] arguing that the family court abused its discretion by failing to grant his motion to dismiss based on Mother's failure to comply with the relocation notice requirements, and that the family court abused its discretion by failing to modify the parenting plan in accordance with Father's proposal. Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, this Court reverses the final order of the Circuit Court of Harrison County, and remands for entry of an order granting Mother's petition for modification and establishing a new parenting plan.

          I. FACTUAL AND PROCEDURAL HISTORY

         The parties were married in Tennessee in March of 2004 and last lived together as husband and wife in Harrison County, West Virginia, in April of 2016. Two children were born of the marriage, a daughter B.W., born in 2010, and a son T.W., born in 2007.

         After the parties separated in spring of 2016, mediation took place, and the parties came together to create a parenting plan. Mother was designated the "primary residential parent," and the plan set out the following: Father was to have parenting time with both children every other weekend from Friday after school through Monday morning. The plan also granted Father every Wednesday with son T.W. Per the parenting plan, the parties could agree on additional time if they decided to do so. Mother was to have the remaining time with the children. Additionally, the parties agreed that Mother "did not waive her right to seek a relocation to Kentucky without meeting a burden of a substantial change in circumstances, and the same shall be expressly reserved to her."[3]

         Although Mother previously worked in marketing and real estate in Kentucky, she did not have a job outside the home after the parties relocated to West Virginia and had children. For this reason, in November and December of 2016, she undertook an extensive search for employment and ultimately accepted a position with a company near Harrison County. By March of 2017, Mother realized that Father was not going to provide adequate assistance with the children as evidenced by the fact that she was required to care for the children during Father's custodial time in addition to being solely responsible for the children's medication and school-related activities.

         Mother asserts that she sought to mediate with Father to address these issues, but that he refused because he was not required to attend mediation again until May of 2017. Accordingly, Mother applied for employment in Kentucky because she believed its job market offered higher income and better career opportunities, in addition to being in close proximity to Mother's family and friends who could provide her with support. After an unsuccessful mediation in May of 2017, Mother filed a petition with the family court to modify the parenting plan and to permit her relocation to Kentucky.

         On June 22, 2017, the family court held a hearing on Mother's motion for temporary relief. Prior to the hearing, Mother obtained employment in Kentucky for more than double her then-current salary plus valuable medical and retirement benefits; however, Mother could not relocate to Kentucky to begin employment under the residential schedule of the existing parenting plan. As such, the family court modified the parenting plan for the remainder of summer, and further ordered the parties to attend additional mediation. Because of the family court's temporary summer parenting plan, Mother accepted the Kentucky job, ceased working in West Virginia, and made an offer to purchase a home in Kentucky.

         After another failed mediation in July, the family court held a final hearing on Mother's relocation motion on August 3, 2017. Following a review of extensive evidence, such as the children's medical records, a portion of the parties' text messages, and testimony from various witnesses, the family court ultimately denied Mother's petition for relocation.

         Based upon the evidence submitted during the hearing, the family court determined that although Mother exercised a significant majority of custodial responsibility for daughter B.W., she did not exercise a significant majority for son T.W.[4]The family court further found that Mother's relocation was not in "good faith for a legitimate purpose" as required by West Virginia Code § 48-9-403(d)(1). Although the family court conceded that Mother's acceptance of employment in Kentucky making substantially more money than at her job in West Virginia appeared to suggest that she was legitimately pursuing a "significantly better employment opportunity in Kentucky[, ]" the family court went on to hold that because Mother "made no attempt to obtain more lucrative employment in the North Central West Virginia Area[, ]" her focus was on removing herself from Father's immediate area and not on improving her employment.

         The family court entered its final order on August 14, 2017, which gave Mother less than twenty-four hours to return to Harrison County so the children could begin school the following day. At that time, Mother did not have a residence in West Virginia for the children and was unemployed, due to having to relocate back to West Virginia, and quit her new Kentucky job. In September of 2017, Mother filed a petition for appeal of the family court's order in the Circuit Court of Harrison County. In November of 2017, the circuit court held a hearing on the appeal, after which it denied her petition for appeal and affirmed the family court's Order denying her petition for modification. It is from this ruling that Mother now appeals.

         II.

         STANDARD OF REVIEW

         Mother asks this Court to review the decision by the Circuit Court of Harrison County, denying her petition for appeal and affirming the family court's order denying her petition for modification. Our standard of review of the circuit court's order is well settled:

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).

Syl. pt. 1, Storrie v. Simmons, 225 W.Va. 317, 693 S.E.2d 70 (2010) (per curiam) (internal quotation marks omitted). With this standard in mind, we now address the arguments presented.

         III.

         DISCUSSION

         Although Mother asserts six separate assignments of error, these issues will be addressed in three distinct sections.[5] Thus, we first address Mother's challenge that the lower courts failed to review the evidence of caretaking functions when addressing each party's percentage of custodial responsibilities. We will then address Mother's assignment of error based upon the circuit court's affirmation of the family court's refusal to allow permanent relocation, and her argument pertaining to the awarding of attorney's fees.

         Further, because this case is heavily focused on interpreting the statutory provisions of West Virginia Code § 48-9-1 et seq., we are mindful that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). In determining the intent of the Legislature, we "look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995). Moreover, statutory construction is necessary to ascertain the meaning of undefined words and phrases. "In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).

         A. West Virginia Code § 48-9-403

         Under West Virginia Code § 48-9-403(c), when parental relocation affects the custodial responsibilities currently being exercised by each parent, the courts will, "if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents." However, if it is not "practical" to maintain the same proportion, then the courts will "modify the parenting plan in accordance with the child's best interests and in accordance with the ...


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