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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

KATHERINE C., 

Petitioner Below, Petitioner

vs.) No. 23-ICA-78 (Fam. Ct. Kanawha Cnty. No. 20-D-367) 

 

A.A. MOORE C., 

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Katherine C.1 (“Mother”) appeals the Family Court of Kanawha County’s 

January 31, 2023, final modification order, which implemented a week on/week off 

parenting schedule. Respondent A.A. Moore C. (“Father”) filed a timely response.2 Mother

filed a reply. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the family court’s order is appropriate 

under Rule 21 of the Rules of Appellate Procedure. 

Mother and Father are the parents of two minor children, namely, E.C., age eight, 

and A.C., age five. The parties were divorced by an Agreed Final Divorce Order entered 

on January 20, 2021. Because Father is a legislator, the parties agreed on two parenting 

plans, one of which was to be used while the legislature was in session. 

Pursuant to the parties’ agreed order, when the legislature was in session Father had 

parenting time every other weekend from Friday at 8:30 p.m. through Monday at 8:30 a.m. 

and every Wednesday from 8:30 a.m. through Thursday at 5:30 p.m. When the legislature 

was not in session, Father would add every other Thursday beginning at 5:30 p.m. through 

1 To protect the confidentiality of the juveniles involved in this case, we refer to the 

parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward 

Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n. 1 (1990).

2 Mother is represented by Bryant J. Spann, Esq., and Natalie Atkinson, Esq. Father

is represented by Andrew S. Nason, Esq. 

FILED

September 5, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Friday at 5:30 p.m. The parties also agreed to shared decision-making and Mother was the 

primary custodial parent. 

On June 23, 2022, Father filed a petition for modification of the agreed divorce 

order, wherein he also included a request for ex parte emergency relief, and a request for 

the appointment of a guardian ad litem. In his petition, Father made multiple allegations 

against Mother and requested that she have no overnight parenting time. Mother filed a 

response, wherein she denied the allegations. On July 7, 2022, the family court entered an 

order denying the request for emergency relief and scheduled a hearing on Father’s petition 

for modification for August 18, 2022. 

On August 4, 2022, Father filed an amended petition for modification, request for 

emergency relief, and request for the appointment of a guardian ad litem, wherein he argued 

that the parties had developed a de facto parenting plan, and that he would like the family 

court to enter a 50/50 (week on/week off) parenting plan reflecting such arrangement. 

Mother filed a response that stated she had offered Father additional parenting time on 

many occasions and that he declined all offers. Mother also noted many examples where 

Father failed to notify her when the children were sick and failed to check on them when 

they were sick and in her care. 

An initial hearing was held on August 16, 2022, but it was continued to allow the 

parties to attend mediation, which was unsuccessful. Hearings were held on the amended 

petition for modification on December 12, 2022, and January 27, 2023. By an order entered 

on January 31, 2023, the family court ruled that Father failed to establish that the parties 

had a de facto parenting plan. Ultimately, the family court modified the parenting plan 

under West Virginia Code § 48-9-401(b), finding that the original parenting plan was not 

working as contemplated due to the parties’ busy lives and that such exceptional 

circumstances warranted a modification because the instability of the parties’ schedules 

was manifestly harmful to the minor children.3 The family court ordered a week on/week 

off schedule and prohibited the parties from altering that rotation. It is from the January 31, 

2023, order that Mother now appeals. 

3 While the family court did not abuse its discretion in modifying the parenting plan 

under West Virginia Code § 48-9-401(b), this Court notes that the parenting plan itself was 

not the issue. In fact, both parties and their counsel acknowledged that the parenting plan 

was working; however, issues with communication arose whenever the parties attempted 

to deviate from the plan. This deviation is what inevitably caused the communication 

issues. Accordingly, although a change in the parenting plan itself may not have been 

necessary to resolve the problems, it certainly was within the discretion of the family court, 

and arguably a week on/week off schedule will reduce the number and frequency of 

exchanges, simplify the plan, and thereby reduce the amount of necessary interactions and 

communications between the parties. 
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For these matters, we use the following standard of review: 

“In reviewing . . . 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., [in part,] Carr v. 

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

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va. __, __,887 S.E.2d 255, 258, 2022 

WL 17098574, at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005) 

(specifying standards for appellate court review of family court order).

On appeal, Mother raises two assignments of error. First, she contends that the 

family court abused its discretion when it invoked the “exceptional circumstances” 

exception pursuant to West Virginia Code § 48-9-401(b)(2009), which states, “[i]n 

exceptional circumstances, a court may modify a parenting plan if it finds that the plan is 

not working as contemplated and in some specific way is manifestly harmful to the child, 

even if a substantial change of circumstances has not occurred.” More specifically, Mother

contends that the family court’s action denied her due process because the family court 

hearing should have been limited to the question of whether a de facto parenting agreement 

had existed between the parties. Essentially, Mother argues that the family court invoked

West Virginia Code § 49-9-401(b) with no notice after denying Father’s petition for 

modification on de facto grounds. We disagree. 

Regarding Mother’s due process argument, the Supreme Court of Appeals of West 

Virginia has held that “the protection of due process under the [F]ourteenth Amendment to 

the United States Constitution and Article III, Section 10 of the West Virginia 

Constitution” must be afforded to litigants. Crone v. Crone, 180 W. Va. 184, 186, 375 

S.E.2d 816, 818 (1988). “A decree modifying a former decree with respect to custody of a 

child is void in the absence of reasonable notice of the hearing upon the pleading to the 

party whose rights are sought to be affected.” Syl. Pt. 2, Acord v. Acord, 164 W. Va. 562, 

264 S.E.2d 848 (1980). Here, however, Mother received reasonable notice of a potential 

50/50 custody ruling upon her receipt of Father’s amended petition for modification, which

was filed on August 4, 2022, and requested 50/50 parenting time. 

Additionally, regarding Mother’s notice of a potential 50/50 parenting plan, Rule 

50 of the Rules of Practice and Procedure for Family Court states, “[a] petition for 

modification shall be in writing, specify facts which demonstrate good cause for relief, be 

filed with the circuit clerk, and sent to all parties.” Rule 50 only requires a factual pleading 

and includes no language requiring a party to plead specific legal theories upon which their 

petition for modification is based. Additionally, the fillable modification forms created by 

the Supreme Court of Appeals of West Virginia only require that a party plead factual 

circumstances which would justify a modification. In fact, the instructions for the fillable 
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modification form state, “[f]illing out the petition is a matter of checking the right boxes, 

and filling in blanks.” The fillable petition for modification directs parties to “[e]xplain all 

of the changes in circumstances you think justify the modifications you requested.” 

Therefore, the family court did not abuse its discretion when it modified the parenting plan, 

as Father’s petition for modification included sufficient factual allegations to warrant a 

modification of the parties’ parenting plan.

For her second assignment of error, Mother contends that the family court erred 

when it found that the parties’ busy schedules were manifestly harmful to the children

under West Virginia Code § 48-9-401(b). Again, we disagree. The Supreme Court of 

Appeals of West Virginia has consistently defined “manifestly harmful” as used in West 

Virginia Code § 48-9-401(b) as “obviously harmful or plainly harmful.” Syl. Pt. 6.

Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). In Skidmore, the Court stated, 

“the term “manifestly” does not require any specific level of harm, but merely means that 

the harm is readily apparent.” Id. at 11. 

In the case at bar, Mother alleged approximately twenty-four instances between 

June 23, 2022, through November 7, 2022, where the parties deviated (or offered to 

deviate) from the family court’s parenting plan while simultaneously arguing that a week

on/week off 50/50 plan would be confusing and disruptive to the children. The parties 

further testified that disputes regarding the court-ordered parenting plan led to one of the 

children missing his school’s Christmas play. Additionally, dozens of pages of emails and 

texts outlining the parties’ disagreements were offered as evidence that the original 

parenting plan was not working as intended. Therefore, the family court did not abuse its 

discretion when it found that the parties’ inability to operate under the original parenting 

plan constituted an exceptional circumstance that was manifestly harmful to the children, 

as it was a source of constant disagreement between the parties. The parties’ inability to 

operate under the original parenting plan led to regular disruption and unpredictability in

the children’s lives. Mother has failed to demonstrate that the family court’s findings were 

clearly erroneous or that the family court abused its discretion by modifying the parenting 

plan to ameliorate the situation. As such, this Court “must affirm a finding if the [lower] 

court’s account of the evidence is plausible in light of the record viewed in its entirety.” In 

interest of Tiffany Marie S., 196 W. Va. 223, 226, 470 S.E.2d 177, 180 (1996).

Accordingly, we affirm the family court’s January 31, 2023, order.

Affirmed.

ISSUED: September 5, 2023
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CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen