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Brian L. v. Heather E.

Supreme Court of Appeals of West Virginia

September 9, 2019

Brian L., Respondent Below, Petitioner
Heather E., Petitioner Below, Respondent

          (Cabell County 13-D-886)


         Petitioner Brian L., pro se, appeals the Circuit Court of Cabell County's July 17, 2018, order that affirmed a family court order denying his request for modification of an order directing that he have no contact with his child. Respondent Heather E., by counsel Arik C. Paraschos and Noel M. Olivero, filed a response in support of the circuit court's order. Petitioner submitted a reply.

         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.

         Petitioner Brian L. ("Father") and Respondent Heather E. ("Mother") are the parents of C.L., who was born on February 10, 2012, in Virginia. The couple never married and ceased living together on a consistent basis shortly after the child's birth. Father moved to Texas and Mother and child to Kentucky and, eventually, to West Virginia where Mother married.

         A custody battle immediately ensued, resulting in a complicated procedural history that is set forth in detail in Brian L. v. Heather E., No. 14-1155, 2015 WL 6955142 (W.Va. Nov. 6, 2015) (memorandum decision). For purposes of this appeal, the following facts related to those proceedings are relevant: On January 8, 2013, Mother filed a temporary emergency protective order against Father in the Magistrate Court of Cabell County after Father took the child to Texas without her consent.[1] Also in January of 2013, Mother filed a custody petition in Virginia, where the child was born, and, ultimately, the couple entered into an order there in which they agreed to joint (50/50) legal and physical custody of the child. On June 17, 2013, Father moved to dismiss the temporary emergency protective order in Cabell County and remand the case to Texas on the issue of custody, to which Mother responded and also sought to register the Virginia custody decree. Following a hearing in the Family Court of Cabell County, Father filed, in Texas, a petition to modify the agreed final order that was entered in Virginia and for a temporary restraining order ("TRO") against Mother. The TRO was granted. In response, Mother filed an emergency ex parte petition in Cabell County to grant her full custody of the child until the jurisdictional matters were resolved. The family court granted Mother's emergency petition because, among other things, Father instituted a judicial proceeding in Texas while a pending case under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") was ongoing in West Virginia. According to the family court, Father failed to inform the Texas court of the same, and, in so doing, Father abused the judicial process in Texas. Ultimately, the family court determined that West Virginia met the requirements to assume jurisdiction under the UCCJEA. The circuit court affirmed this decision.

         Thereafter, following a hearing on the previously entered emergency ex parte order that granted Mother full custody, and also on Mother's petition for child support and for attorney's fees, the family court entered an order on July 29, 2014, that, relevant to this appeal, ordered that the ex parte order shall remain in full force and effect and that Father have no contact with the child while the outstanding action in Texas continues "since he is a flight risk with the child." Father was also ordered to pay Mother child support and $11, 000.00 in attorney's fees. Father appealed this order to the circuit court, which affirmed. Father thereafter appealed the circuit court's order, as well as the prior order regarding jurisdiction, to this Court. This Court affirmed both orders. See Brian L., 2015 WL 6955142.

         The present case

         On January 17, 2018, Father filed a petition for modification of the July 29, 2014, order that ordered that he have no contact with the child. Father averred that he "surrendered his [Texas] residence indefinitely[, ]" that the Texas case has been dismissed, [2] and that "[t]his was done to satisfy the respondent[']s counsel who implied that a Texas case made the father a 'flight risk.'" Father also averred that he had moved to West Virginia where he enrolled his older child in school. Father "ask[ed] the court for a reinstatement of shared parenting, so the child can be reunited with siblings and extended family."[3]

         On March 7, 2018, Mother filed a motion to dismiss the petition for modification. She argued that Father, who had previously been ordered to pay $11, 000.00 in attorney's fees, had paid only $305.00 of that amount and that this matter should not be permitted to proceed further until Father has paid all outstanding attorney's fees. Mother requested that Father be held in contempt for failure to pay. She further argued that the petition for modification failed to allege any change of circumstance. Mother objected to any request for parenting time, stating that the child has had no contact with Father for four years and that Father "is essentially a stranger to him. . . . [Father] will remain a flight risk as it is obvious from his filing that he has taken no responsibility for his prior bad conduct."[4]

         A hearing on Father's petition for modification was conducted in family court on March 29, 2018. In an order entered on April 4, 2018, the court dismissed the petition, finding that, although Father "demonstrated a possible change of circumstances [i.e., moving from Texas to West Virginia, ] [he] provided no evidence [that] a modification of the current no contact [o]rder is in the child's best interest or promotes the child's best interest." Further, the family court found that Father claims to be a resident of West Virginia but "he still maintains a driver's license in another state, he listed Texas as his contact address for all of his documentation with the [c]ourt and otherwise his testimony on his residency was muddled at best." Although Father testified that he relocated to West Virginia to be near the child, he also testified that he became homeless following a 2017 hurricane in Texas, that he lived "in the Tri-State area in a hotel for a couple of months in late 2017[, ]" entered into a six-month lease in West Virginia in 2018, and "does not know if he will be able to maintain that lease after June 2018." The court determined that Father "had not had contact with his son for several years and that he had a right to bring a petition [for modification] at a much earlier date after the dismissal of his Texas case. [Father] cho[se] not to do so and this passage of time and reintroduction into the child's life is a significant event that needs to be taken into consideration." Finally, the family court found that Father was previously found to be a "flight risk" and that "[h]e provided no convincing evidence . . . that he was no longer a flight risk."[5]

         Father appealed the family court's order to the Circuit Court of Cabell County, which affirmed by order entered on July 17, 2018. This appeal followed.

         We review the circuit court's order 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 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).

         In order to modify the "no contact" provision that is currently in place, Father was required to show that there was a substantial change in circumstances and that modification is in the best interest of the child. See Andrea H. v. Jason R.C., 231 W.Va. 313, 318, 745 S.E.2d 204, 209 (2013). In Syllabus Point 3 of Skidmore v. Rogers, 229 W.Va. 13, 725 S.E.2d 182 (2011), we held that

West Virginia Code § 48-9-401(a) (2009)[6] permits a court to modify a parenting plan order on the basis of a substantial change in circumstance that arises after the parenting plan order is entered if such change was not provided for in the parenting plan and ...

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