1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jamie G., Respondent Below, Petitioner

vs) No. 15-0106 (Clay County 07-D-20)

Billy B., Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Jamie G., 1 pro se, appeals the January 12, 2015, order of the Circuit Court of Clay County that refused her appeal of two orders e ntered by the Family Court of Clay County on December 3, 2014. In its first order, the family co urt dismissed petitioner’s petition for contempt against Respondent Billy B. because petitioner fail ed to serve him with the petition. In its second order, the family court denied a petition for modif ication filed by petitioner but modified the parties’ parenting plan as requested by respondent. Respondent did not file a response. 2

The Court has considered petitioner’s brief and th e record on appeal. The facts and legal arguments are adequately presented, and the decisio nal process would not be significantly aided by oral argument. Upon consideration of the standar d of review, petitioner’s brief, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these

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 On February 6, 2016, this Court entered an order no ting that respondent failed to file a response and directed him to do so. Despite this Co urt’s order, respondent did not file any response. Pursuant to Rule 10(d) of the West Virgin ia Rules of Appellate Procedure, if a respondent fails to respond to an assignment of err or, this Court will assume that the respondent agrees with petitioner’s view of the issue. However , the Court declines to rule in petitioner’s favor simply because respondent failed to file a response

. See Syl. Pt. 8, State v. Julius , 185 W.Va. 422, 408 S.E.2d 1 (1991). 

### FILED

April 15, 2016

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

reasons, a memorandum decision affirming the circui t court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties are divorced and have three children t ogether. The oldest child is now an adult. According to their dates of birth, the two youngest children are now sixteen- and fifteen-years-old, respectively. Prior to the most recent orders of th e family court, petitioner had visitation with the minor children on alternate weekends—on Saturday fr om 10:00 a.m. to 8:00 p.m., and on Sunday from 10:00 a.m. to 8:00 p.m.—and had unlimited tele phone visitation with them. On September 26, 2014, petitioner filed a petition for contempt alleging that respondent was not complying with the parenting plan by frequently informing petition er that “he wouldn’t be there” to exchange the children with “no explanation.” On September 29, 20 14, petitioner filed a petition for modification of the parenting plan. Petitioner requested custody of the parties’ minor daughter and that the parties have alternating custody of their minor son

.

Respondent filed a response to the petition for mo dification on November 19, 2014, and countered that petitioner “continues to make the ex change of the children between [petitioner] and [respondent and his wife] so volatile, that an exch ange usually means yet another incident with law enforcement being called.” Respondent asserted that the petition for modification was frivolous and was another attempt by petitioner to inject “ch aos” into the exchange of the children. Respondent noted that the minor children had attain ed sufficient ages that their desires as to custody and visitation “should be considered paramo unt to that of either parent.” Consequently, respondent asked the family court to deny petitione r’s petition and grant his request that all contact between the children and petitioner be at the child ren’s discretion.

The family court held a hearing on November 19, 20 14, at which both parties appeared. Following that hearing, 3 the family court entered two orders on December 3, 2014. In its first order, the family court dismissed petitioner’s peti tion for contempt against respondent because petitioner failed to serve him with the petition. I n its second order, the family court denied petitioner’s petition for modification, but modifie d the parties’ parenting plan as requested by respondent. The family court ruled that “[t]he mino r children may contact [petitioner] if they wish to spend time with [petitioner].” The family court made several findings of fact to support its ruling:

4. [Petitioner] continues to create conflict with [ respondent] and the children which results in unnecessary stress on the childre n.

5. [Petitioner] continues to file fraudulent report s of domestic violence or child abuse[.]

6. [Petitioner] got into an altercation with [respo ndent]’s wife.

3 We have viewed the recording of the November 19, 20 14, family court hearing.3

7. [Petitioner] currently has charges against her f or violation of a Kanawha County order.[ 4 ]

8. That continued contact between the children, [re spondent], and [petitioner]

is not in the best interest of the minor children.

9. That all three children are over the age of four teen (14) years old and are mature enough to state their preference regarding visitation with [petitioner].

Petitioner appealed the family court’s December 3, 2014, orders to the circuit court which refused her appeal by an order entered January 12, 2015. In refusing the appeal, the circuit court determined that “the family court fully considered the evidence adduced and arrived at a parenting plan that is in the best interests of the children, with due to regard to the rights of the respective parents.”

Petitioner appeals the circuit court’s January 12, 2015, order refusing her appeal of the family court’s December 3, 2014, orders. We review the matter under the following standard:

In reviewing a final order entered by a circuit co urt judge upon a review of, or upon a refusal to review, a final order of a fam ily court judge, we review the findings of fact made by the family court judge und er the clearly erroneous standard, and the application of law to the facts u nder an abuse of discretion standard. We review questions of law de novo

.

Syl., Carr v. Hancock , 216 W.Va. 474, 607 S.E.2d 803 (2004).

With regard to the family court’s first order, pet itioner does not dispute the family court’s finding that she failed to serve respondent with he r petition for contempt. Accordingly, we conclude that the family court did not abuse its di scretion in dismissing that petition.

With regard to the family court’s second order, pe titioner seeks reversal of that order and joint custody of the minor children, overnight visi tation every other weekend, and additional parenting time for part of the summer on the follow ing grounds. Procedurally, petitioner contends that she was denied due process by the Clay County judicial system. “Due process of law is synonymous with fundamental fairness.” State ex rel. Peck v. Goshorn , 162 W.Va. 420, 422, 249 S.E.2d 765, 766 (1978). First, petitioner alleges t hat the guardian ad litem (“GAL”) previously appointed to conduct an investigation into the chil dren’s safety in 2009, attorney Barbara Schamberger, had a conflict of interest because she had represented respondent in another matter.

4 During the pendency of her appeal, petitioner has i nformed this Court that she “can’t . . . send documents to [respondent]” because she “was fa lsely accused of domestic battery on [respondent]’s wife[.]”4

However, we find that Ms. Schamberger’s participati on in the case ended before the instant modification proceeding was initiated. 5 Second, petitioner alleges that, also in 2009, she was not afforded an opportunity to obtain counsel. We find that petitioner later had counsel in the case, who was permitted to withdraw by an order entered N ovember 7, 2012. 6 Third, petitioner alleges that the family court and circuit court judges were prejudiced against her. However, we find that petitioner never filed a motion for disqualificatio n pursuant to Rule 17.01 of the West Virginia Trial Court Rules. Thus, we conclude that petitione r’s allegations that she was deprived of due process of law are unsupported by the record.

Substantively, petitioner contends that respondent is unduly influencing the children to avoid spending time with petitioner. “Although pare nts have substantial rights that must be protected, the primary goal . . . in all family law matters . . . must be the health and welfare of th e children.” Syl. Pt. 3, In Re Katie S. , 198 W.Va. 79, 479 S.E.2d 589 (1996); see also Michael K.T. v.

Tina L.T. , 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“ [T]he best interests of the child is the polar star by which decisions must be made which af fect children.”). Also, when children are of sufficient age, they have the right to state their preference as to matters of child custody and

visitation. See W.Va. Code § 44-10-4(a) (providing that a minor of fourteen or more years may nominate his or her guardian).

The family court determined that the children were experiencing “unnecessary stress” and that petitioner was the cause. The family court fou nd that petitioner (1) creates conflict with respondent and the children; (2) files fraudulent r eports of domestic violence or child abuse against respondent and his present wife; and (3) has a conf rontational relationship with respondent’s wife. We note that the family court made these findings f ollowing a hearing. “An appellate court may not decide the credibility of witnesses or weigh ev idence as that is the exclusive function and task

of the trier of fact.” State v. Guthrie , 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995). Therefore, we do not disturb the findings supportin g the family court’s conclusion that continued contact with petitioner “is not in the best interes t of the minor children.” Accordingly, we conclude that the family court did not abuse its discretion in modifying the parties’ parenting plan to provide that all contact between the children and petitione r is at the children’s discretion.

For the foregoing reasons, we affirm the circuit c ourt’s January 12, 2015, order refusing petitioner’s appeal of the family court’s December 3, 2015, orders dismissing petitioner’s petition for contempt and modifying the parties’ parenting p lan.

Affirmed.

5 Another attorney was appointed GAL by an order ente red November 2, 2012.

6 According to counsel’s withdrawal motion, which pet itioner requested as part of the record on appeal, petitioner agreed with counsel’s decision to withdraw from the case. The family court’s November 7, 2012, order which permitted cou nsel’s withdrawal confirms that “no hearing on the motion is necessary nor has been requested.”5

ISSUED: April 15, 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