STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Robert W. 

Respondent Below, Petitioner FILED 

vs) No. 15-1010 (Braxton County 11-D-53) 

May 20, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

Paulette W. OF WEST VIRGINIA 

Petitioner Below, Respondent 

MEMORANDUM DECISION 

Petitioner Father Robert W.,1 by counsel James Wilson Douglas, appeals the September 

22, 2015, order of the Circuit Court of Braxton County granting respondent’s appeal of a May 

11, 2015, order of the Family Court of Braxton County. Respondent Mother Paulette W., by 

counsel Robert M. Williams, filed a response in support of the circuit court’s order. 

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. 

The parties were married on June 23, 2004. Two children, E.W. and M.W., were born 

during the parties’ marriage. In November of 2010, the parties separated. Thereafter, on March 

18, 2013, the parties were divorced. In the final divorce order, respondent mother was designated 

as the residential parent of the parties’ children and they reside with her in West Virginia.2 In 

2012, respondent mother began a relationship with R.C., a native of Louisiana, who was working 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. 

Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). 

2

Petitioner father is a resident of the State of North Carolina. A parenting plan was 

established between the parties wherein petitioner father would have custody of the children for 

three weeks in the summer, followed by a two week period, and then another three week period, 

as well as reasonable visitation with the children when petitioner father was in West Virginia. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

temporarily in West Virginia. Respondent mother and R.C. have two children together and those 

children have, since their birth, resided with E.W., M.W., and respondent mother.3 

On May 8, 2014, respondent mother filed a notice of relocation seeking to relocate the 

parties’ children from Braxton County to Louisiana. Petitioner father filed an objection to the 

notice of relocation and, on April 1, 2015, a hearing was held before the Family Court of Braxton 

County.4 During the hearing, respondent mother testified that she wished to move to Louisiana to 

be with the father of her younger children.5 Respondent mother further testified that R.C. 

financially supports her and her children and that if she relocated to Louisiana, R.C. would be 

able to work on-shore full-time and earn $40.00 per hour. R.C. did not testify at the hearing. The 

only testimony presented to the family court regarding R.C.’s job opportunity in Louisiana was 

offered by respondent mother. 

By order entered May 11, 2015, the family court denied respondent mother’s request to 

relocate to Louisiana. The family court’s order noted that R.C. did not testify at the hearing 

regarding his employment opportunity in Louisiana.6 Respondent mother appealed the family 

court’s order to the circuit court. By order entered September 22, 2015, the circuit court reversed 

the family court’s order and approved respondent mother’s relocation to Louisiana with the 

parties’ children.7 The circuit court found that respondent mother was a competent witness 

regarding the issue of R.C.’s employment opportunity and that respondent mother had, by her 

testimony at the hearing, presented sufficient evidence to support the relocation. In reversing the 

family court’s ruling, the circuit court held that respondent mother’s requested relocation was for 

3

R.C. works for a Louisiana-based company and frequently works in West Virginia. 

When he is not working, R.C. resides with petitioner and her children in Braxton County. 

4

Along with his objection to respondent mother’s notice of relocation, petitioner father 

filed a counter-petition for contempt against respondent mother seeking enforcement of the 

visitation schedule in the parties’ parenting plan. The family court found respondent mother in 

contempt as to petitioner father’s missed summer visitation with the parties’ children. Neither 

party appealed the family court’s ruling on petitioner’s contempt motion. 

5

Respondent is not employed and is the primary caregiver for all four of her children. 

6

The crux of the family court’s reasoning in denying respondent mother’s notice of 

relocation was that respondent mother did not satisfy the statutory prerequisites of West Virginia 

Code § 48-9-403(d)(1) through her proffer of hearsay testimony and the absence of corroborating 

documentary evidence related to R.C.’s new job opportunity. 

7

The circuit court did not hold a hearing on respondent mother’s appeal of the family 

court’s decision. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a legitimate purpose and reasonable in light of that purpose.8 It is from the circuit court’s 

September 22, 2015, order that petitioner father now appeals. 

Our review of the circuit court’s order is governed by the following standard: 

“[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 an abuse of discretion 

standard. We review questions of law de novo.” 

Syl. Pt. 1, Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012) (citation omitted). 

Modifications of parenting plans to address the relocation of a parent are governed by 

West Virginia Code § 48-9-403(d)(1), which provides that 

[a] parent who has been exercising a significant majority of the custodial 

responsibility for the child should be allowed to relocate with the child so long as 

that parent shows that the relocation is in good faith for a legitimate purpose and 

to a location that is reasonable in light of the purpose. The percentage of custodial 

responsibility that constitutes a significant majority of custodial responsibility is 

seventy percent or more. A relocation is for a legitimate purpose if it is to be close 

to significant family or other support networks, for significant health reasons, to 

protect the safety of the child or another member of the child’s household from 

significant risk of harm, to pursue a significant employment or educational 

opportunity or to be with one’s spouse who is established, or who is pursuing a 

significant employment or educational opportunity, in another location. The 

relocating parent has the burden of proving of the legitimacy of any other 

purpose. A move with a legitimate purpose is reasonable unless its purpose is 

shown to be substantially achievable without moving or by moving to a location 

that is substantially less disruptive of the other parent’s relationship to the child. 

In his appeal, petitioner father raises one assignment of error – that the circuit court erred 

in finding that respondent mother proffered sufficient direct evidence to meet the requirements of 

West Virginia Code § 48-9-403(d)(1). Conversely, respondent mother argues that she proffered 

sufficient evidence to permit her relocation with the parties’ children. Based upon our review of 

the record before us, we agree with respondent mother. 

8

The circuit court ruled that R.C.’s job opportunity provided a good salary and would 

allow him to spend more time with respondent mother and their two children and would keep the 

parties’ children with their half-siblings. Further, the circuit court noted that the visitation 

schedule proposed by respondent mother would provide petitioner father with a similar amount 

of time with E.W. and M.W. during the summer. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

It is undisputed that respondent, a stay-at-home mother, is the primary residential 

caregiver of the parties’ children and she has exercised a significant majority of custodial 

responsibility. West Virginia Code § 48-9-403(d)(1) provides that in such situations, a parent can 

relocate for a legitimate purpose to be with “significant family or other support network.” At the 

hearing on her notice of relocation, respondent mother testified that the requested relocation 

would permit R.C. (the father of respondent mother’s two younger children) to transfer to a job 

that would allow him to spend more time with respondent mother and her children and provide 

the family with a generous income. We concur with the circuit court’s findings and agree that 

respondent mother proffered sufficient evidence to establish a legitimate purpose for relocation, 

that the relocation was reasonable in light of that purpose, and that the relocation is in the best 

interest of the parties’ children as it would allow them to remain with their half-siblings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: May 20, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

4