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In re Child of Steven C.

Supreme Court of Appeals of West Virginia

September 13, 2019

In re The Child of Steven C. and Melissa D.

          Lewis County 07-D-63

          MEMORANDUM DECISION

         Petitioner Guardian Ad Litem Cheryl E. LaNasa appeals the Circuit Court of Lewis County's March 5, 2018, order granting Melissa D.'s request to relocate with the child.[1] Melissa D. ("the mother"), by counsel Mike Kelly, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in (1) reversing the family court's order denying the mother's request to relocate; (2) finding that the family court erroneously considered facts irrelevant to whether the mother's request to relocate was made in good faith, and (3) ordering that the child be allowed to relocate to South Carolina with the mother, terminating the mother's child support obligation, and reinstating the father's child support obligation.

         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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Facts and Procedural Background

         The mother and Steven C. ("the father") married and, during the course of their marriage, had one child together.[2] Ultimately, the parents divorced in October of 2007. Following the divorce, the mother was designated as the primary residential parent of the child and the father was given parenting time and ordered to pay child support. In May of 2013, the mother married Gary "Robbie" D., her current husband. The father also remarried. The parties resided in or around Weston, West Virginia.

         On or about June 23, 2017, Robbie D., the sole provider for the mother and the child, learned that the 7-Eleven store that he managed would be closing at the end of that month. Nearly immediately, Robbie D. began to look for other employment by posting his resume to three online job boards, indicating his geographical preferences to be Weston, Clarksburg, Fairmont, Morgantown, and Charleston, West Virginia. Robbie D. also directly applied with numerous employers over the next few weeks.

         Robbie D. received only one lead on his job search. He participated in two interviews with Murphy USA, "a 'big dog' in the convenience store industry" according to his testimony. On July 17, 2017, Robbie D. participated in an in-person interview, and subsequently, on July 25, 2017, Murphy USA verbally offered him a store manager position in Dillon, South Carolina.

         That same day, the mother filed a notice of relocation pursuant to West Virginia Code § 48-9-403(b), stating that her current husband, Robbie D., had accepted other employment in South Carolina.[3] It is undisputed that, at that time, the mother exercised 75.07% of the custodial responsibility. The mother proposed that the father's regular parenting time could occur one weekend per month, that the father could have holiday time with the child during Thanksgiving and Christmas, and that the father could have parenting time with the child during the summer.

         At some point thereafter, a position opened in Murphy USA's Myrtle Beach, South Carolina, location, and Murphy USA offered that position to Robbie D., which he accepted. Murphy USA then extended Robbie D. a written letter confirming the job offer on August 1, 2017, listing the location as Myrtle Beach, South Carolina. On August 3, 2017, the father filed a handwritten objection to the relocation and requested a hearing on the matter. The mother, Robbie D., and the child relocated to Myrtle Beach on August 12, 2017, and Robbie D. started his employment with Murphy USA on August 14, 2017.

         The Family Court of Lewis County held an initial hearing in the matter in September of 2017, after which petitioner was appointed as the child's guardian ad litem. A final hearing on the mother's Notice of Relocation was held in October of 2017. After hearing evidence, the family court denied the mother's request to relocate. In making its findings, the family court determined that the mother's request to relocate was for a legitimate purpose. However, the family court noted that determining whether the mother's request was in good faith was a "harder call." In considering good faith, the family court looked to the dates surrounding Robbie D.'s offer and the mother's filing of the Notice of Relocation. Because the mother filed her notice on July 25, 2017, a few days before the August 1, 2017, written offer was extended, the family court determined that the mother had made the decision to move to South Carolina before the written offer. The family court further determined that it "[did] not think that anyone would move over eight (8) hours away just two (2) weeks after losing a job as a manager of a convenience store. Comparable employment closer to Lewis County could have been investigated, but it was not." The family court noted that "he could have found something comparable, or - maybe not in that field, but it's not a - a specialized - it's not like he's a brain surgeon . . . . I would think that he could find a job with comparable salary at least in West Virginia, if not Pennsylvania or Maryland."

         The family court ultimately found that the proposed move was not reasonable in light of the stated purpose and was not in good faith. The family court then reallocated the custodial responsibility by granting primary custody of the child to the father, finding that it was in the child's best interests.

         The mother timely filed a motion for reconsideration with the family court, which was denied by order in December of 2017. The family court expounded on its decision, stating that the mother's failure to provide sixty days' notice as required by West Virginia Code § 48-9-403(b) further lent itself to the conclusion that her request was not made in good faith. The family court opined that the mother "had a home . . . in Weston, West Virginia, in which she could have continued to reside and to wait out the sixty day period." Further, the family court pointed to Robbie D.'s testimony that the family eventually hoped to move to Myrtle Beach and that it was their "six-year plan" to support its finding that the mother intended to move to South Carolina prior to receiving the employment offer from Murphy USA.

         Later in December, the mother appealed the family court's denial of her request to relocate. The circuit court held a hearing on the matter on February 5, 2018, and later issued an order reversing the family court's order. The circuit court determined that the family court relied on three findings that were clearly erroneous. First, the family court found that "comparable employment closer to Lewis County could have been investigated, but was not." The circuit court found that the evidence clearly established that Robbie D. put in "more than a score" of applications throughout West Virginia and surrounding areas. However, he received no responses from any employers. Second, the family court erred in finding that Robbie D. only searched for jobs for two weeks before accepting employment with Murphy USA when the evidence suggested that he searched for approximately four weeks. The circuit court further noted that nothing in West Virginia Code § 48-9-403(d)(1) required that Robbie D. "reject the only offer he received and forego the likelihood of a $10, 000 pay increase until he meets a minimum number of weeks searching for a job." Third, the circuit court found that the family court's reliance on the August 1, 2017, offer letter in finding that the mother intended to move to South Carolina all along was misplaced. The letter clearly stated that the letter was "to confirm our offer of employment." The circuit court explained that

[c]learly Murphy [USA] would not 'confirm' an offer that had not yet been made, meaning that the offer was made some time prior to August 1. There is no evidence whatsoever in the record that the date on which the offer was made was other than July 25, the same day [the mother] filed her notice of relocation.

         The circuit court emphasized that it was undisputed that the mother's request to relocate was "for a legitimate purpose" given that she was relocating to be with her husband, whose only offer of work required relocation to South Carolina. See W.Va. Code § 48-9-403(d)(1) (setting forth circumstances that constitute a legitimate purpose, which include joining a "spouse . . . who is pursuing a significant employment or educational opportunity, in another location"). However, the circuit court disagreed with the family court's determination that the requested relocation was not in good faith or to a reasonable location in light of the stated purpose. The circuit court reasoned that it was erroneous to expect the mother and Robbie D. to stay in the area and possibly pursue a different career, even at the cost of losing their home or second car. Although Robbie D. was not a "brain surgeon," the circuit court found nothing in the statute to indicate that one must explore a career change before a finding of good faith can be made. Nor did the statute require that the mother and Robbie D. turn down a definite job offer in order to continue searching for a comparable position closer to home.

         While the circuit court rebuked the mother for moving the child to South Carolina before the matter of relocation had been resolved, it ultimately found that she met the criteria for relocating pursuant to West Virginia Code § 48-9-403(d)(1), and that her request to relocate was for a legitimate purpose, to a reasonable location, and made in good ...


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