### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

E.O.R., Petitioner, 

### FILED

vs) No

. 17-0355 (Upshur County 13-D-131) 

### March 8, 2018

released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
M.D.W., SUPREME COURT OF APPEALS

OF WEST VIRGINIA Respondent.



### MEMORANDUM DECISION

Petitioner, E.O.R. 1 (“Father”), by counsel, Shannon R. Thomas, appeals an order entered in the Circuit Court of Upshur County. In its orde r, the circuit court refu sed Father’s petition for appeal from an order by the Family Court of Up shur County in which the family court allocated custodial and decision-making res ponsibility over his s on, I.W., 50% to Father and 50% to I.W.’s mother, M.D.W. (“Mother”). Mo ther, by counsel, David B. DeMoss, filed a response, to which Father filed a reply. 2

This Court has considered th e parties’ briefs, oral argumen ts, and the record on appeal. Upon consideration of the standard of review, the briefs, oral arguments, and the record presented, we find no error in the circuit court’s decision to refuse Father’s petition for appeal. For these reasons, a memorandum decision is appropriate unde r Rule 21 of the Rules of Appellate Procedure. However, at oral argumen t, this Court received information from I.W.’s Guardian ad Litem that, after the family court en tered its order, circumstances regarding Father’s and Mother’s ability to share custodial and de cision-making responsibility over I.W. may have changed. Therefore, we remand this case to the family court for a new h earing as to whether a change in circumstances warrants a modification of its previous order allocating custodial and decision-making responsibility over I.W. 50% to Father and 50% to Mother. The hearing shall be conducted promptly, but no later than four weeks from the entry of this decision.

This case arises from a custody dispute betw een Father and Mother over their child, I.W., who was born in August 2012 and is now five year s old. Father and Mother never married and did not live together during I.W.’s lifetime.

Father’s and Mother’s relationship was mark ed with contention, and Mother claims that Father physically abused her on the following three occasions: (1) In summer 2012, Father

1 Consistent with our practice in cases invol ving sensitive matters, we identify the parties by their initials. W.Va. R. of App. P. 40(e) [2017]; See also, State v. Edward Charles L. , 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

2 I.W. is represented by Cheryl E. LaNasa, Guardian ad Litem, who appeared at oral argument, but did not file a brief.

1purportedly pushed Mother to the ground when she wa s seven months pregnant with I.W.; (2) In June 2013, when I.W. was less than one year old, Father allegedly showed up unannounced at Mother’s house, hit her, and trie d to leave with I.W.; and (3) In September 2014, when I.W. was two years old, Father struck Mother in the chest with his shoulder during an exchange of I.W. at a local gas station. The September 2014 incide nt was caught, in part, on the gas station’s surveillance tape. A magistrate court issued a domestic violence emergency protective order against Father resulting from the September 2014 incident, but the order was terminated at Mother’s request two week s after it was issued.

After the purported June 2013 incident, Mother stopped allowing Father to see I.W. In response, in July 2013, Father filed a Petition fo r Allocation of Custodial Responsibility in the family court. The case remained before the fami ly court for nearly thr ee years, until, on January 31, 2016, the family court entered its order allocating custodial and decision-making responsibility over I.W. 50% to Father and 50% to Mother. Under this order, I.W. was to

alternate between his Father’s and Mother’s household, with exchanges taking place every Friday at a designated gas station.

In its January 31, 2016, order, the family cour t weighed the negatives and the positives of allocating shared custodial and decision-making responsibility over I.W. to Father and Mother. As negatives, the family court noted that the Fa ther and Mother have a remarkably contentious relationship which has resulted in behavior that could harm I.W. As to Father, the family court expressed its concern that he might have a propen sity to commit domestic violence. The family

court indicated in its order that it found Mother’s allegations of abuse credible as to the summer 2012 incident (when she was pregnant) and the September 2014 incident (when I.W. was two years old). 3 As to Mother, the family court expressed its belief that her allegation of abuse in

3 The family court did not explicitly state which accusations of abuse by Mother it found credible, but it made the following findings of fact, which indicate its belief that Mother was truthful as to the summer 2012 purported incide nt and the September 2014 purported incident:

There have been three incidents of domestic violence. The seven month pregnancy [summer 2012] which occurred at the Mother’s apartment. The [June 2013 incident], I find, did not occur, and it is very trouble[some], because it looked like the Mother bore false testimony agains t the Father. The [September 2014] incident did not rise to dom estic violence, but certainly was not gentlemanly, and seemed to indicate that the Father’s frustration could easily boil over to a physical confrontation with

the Mother.

. . . The Court has domestic violen ce concerns on the Father with the first [summer 2012] inci dent which occurred when she was eight months or seven mont hs pregnant . . . [and] The [September 2014] incident involving the shouldering.

. . .

2June 2013 was not truthful. The family court also found that Mother persiste ntly interfered with Father’s relationship with I.W., and “has thrown one impediment after another to the Father’s meaningful parenting tim e with the child.”

As positives, the family court noted that both pa rents have a loving relationship with I.W. It recognized that Mother has been I.W.’s primar y caretaker for his entire life, and it found that Father has demonstrated his willingness to partic ipate in the care, rearin g, and support of I.W. The family court also considered testimony fr om two psychologists who worked with Father, Mother, and I.W. that “50/50 parenting time was the best.”

Accordingly, in its January 31, 2016, order, the family cour t determined that allocating custodial and decision-making res ponsibility over I.W. 50% to Fath er and 50% to Mother was in I.W.’s best interests. However, due to Father’s and Mother’s contentious relationship, the family court provided that a family court monitor woul d be appointed to resolve parenting disputes between Father and Mother outside of court, but s ubject to judicial review . In the same order, the family court denied Father’s petition to change I.W.’s last name, and it ordered Father to pay Mother monthly child support in the amount of $438.45.

Both parties separately petitioned the circu it court for an appeal of the family court’s January 31, 2016, order. Th e circuit court entered an order on March 9, 2017, 4 finding that the family court did not abuse its discretion and denyi ng both parties’ separate petitions for appeal.

To this Court, Father appeal s the circuit court’s refusal of his petition for appeal from the family court order. He assert s the following nine assignments of error: (1) the family court’s

allocation of 50% custodial and de cision-making responsibility to Mo ther violated West Virginia Code § 48-9-209 [2008]; (2) the family court’s al location of 50% custodial responsibility to Mother was manifestly harmful to I.W. in viol ation of West Virginia Code § 48-9-206 [2001]; (3) the family court erred by appointing a family court monitor to reso lve parenting disputes between Father and Mother; (4) the family court erred by failing to grant his petition to change I.W.’s last name; (5) the family court erred in calculating child support due to Mother; (6) the

The Father has, on at least tw o occasions, participated in physical confrontations with the Mother with the child present.

4 Under West Virginia Code § 51-2A-14(f) [ 2005], “The circuit court must enter an order ruling on a petition for appeal with in sixty days from the last day a reply to the petition for appeal could have been filed.” This sixty-day timeframe is subject to an exception for when the circuit court “enter[s] an order stating just caus e why the order has not been timely entered[.]”

Id

.

On May 12, 2016, the circuit court entered an or der stating just caus e why an order ruling on Father’s and Mother’s petitions for appeal woul d not be entered within the statutory sixty-day

timeframe. The circuit court e xplained that it had a burdensome caseload and that: “there are over 1,117 pages of documents in th e file for this case. This includes sixty (60) pages of appellate documents, and a thirty-two (32) page single spaced final order with 244 findings of

fact.”

3family court erred by failing to require Mother to pay Father’s attorney fees; (7) the family court erred by resolving certain fact ual disputes in Mother’s favor; (8) the family court erred by referring to Father as a “litigation bully” in its order; and (9) the circuit court failed to give Father’s petition for appeal a proper review. Mo ther does not appeal the circuit court’s order. She requests that we affirm the circuit court.

We are asked whether the circuit court erre d by refusing Father’s pe tition for appeal from a family court order. Our standa rd of review is as follows:

In reviewing a final order en tered 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 th e findings of fact made by the family court judge under the clear ly 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). With this standard of review in mind, we address Father’s assignments of error in turn.

First, Father argues that the family cour t’s allocation of 50% custodial and decisionmaking responsibility to Mother violates West Vi rginia Code § 48-9-209. West Virginia Code § 48-9-209 limits a family court’s discretion to aw ard custodial or decisi on-making responsibility over a child to a parent who has engaged in the c onduct listed in subsection (a) of the statute. This conduct includes, in part:

(a) If either of the parents so requests, or upon receipt of credible information thereof, the court shall determine whether a parent who would otherwise be allocated respons ibility under a parenting plan:

. . .

(3) Has committed domestic violence[;]

(4) Has interfered persistently with the other parent’s access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member , pending adjudication of the facts underlying that belief; or

(5) Has made one or more fr audulent reports of domestic violence or child abuse[.]

When a parent has engaged in conduct listed in subsection (a) of West Virginia Code § 48-9-209, subsections (b) and (c) of the statute require the court to take the following measures before allocating custodial or decision-making responsibility to that parent:

4(b) If a parent is found to have engaged in any activity specified by subsection (a) of th is section, the c ourt shall impose limits that are reasonably calculated to protect the child or child’s parent from harm.

. . . .

(c) If a parent is found to have engaged in any activity specified in subsection (a) of this section, the court may not allocate custodial responsibility or decision-making responsibility to that parent without making speci al written findings that the child and other parent can be adequate ly protected from harm by such limits as it may impose under subs ection (b) of this section.

In short, under subsection (b), the family court must impose lim its on the offending parent which are reasonably calculated to prot ect the child from harm. Under subsection (c), the family court is required to make special wr itten findings of fact explaini ng that the limits it imposed are sufficient to adequately protect the child from harm.

Mother was found to have engaged in conduct listed in subsection (a ) of West Virginia Code § 48-9-209. The family court determined that she interfered with Fa ther’s access to I.W. by “throw[ing] one impediment after another to th e Father’s meaningful pa renting time with the child.” Furthermore, the family court stated that Mother may have provided false testimony

when she claimed that Father abused her in June 2013. As to Father, the family court indicated that he may have committed domestic abuse ag ainst Mother and expressed its “domestic

violence concerns on the Father.”

Father argues that the family court failed to impose limitations on Mother designed to protect him and I.W. as required under subsecti on (b) of West Virginia Code § 48-9-209. He further argues that, to the extent the family court imposed limitations on Mother, it failed to make special written findings of fact that he a nd I.W. can adequately be protected from harm, as required under subsection (c) of West Virginia Code § 48-9-209. At oral argument, Father’s counsel, who drafted the family c ourt order, argued that the family court order she prepared is not clearly written and leaves this Court to “guess” the basis for any relief it granted.

We disagree. The family court recognized in its order that Father’s and Mother’s contentious relationship has resulted in the ha rmful conduct listed in subsection (a) of West Virginia Code § 48-9-209. To remedy the harm to I.W. that might resu lt from this harmful conduct, the family court provid ed that exchanges of I.W. w ould take place in a neutral, protected location, i.e. , a predesignated gas station with su rveillance video cameras. The family court further provided that a family court mon itor would be appointed to resolve parenting disputes between Father and Mother outside of c ourt, subject to judicial review. The family court explicitly stated in its order that this m easure would further “the expeditious, predictable decision making, [and] avoidanc e of prolonged uncertainty, re specting arrangements for the child’s care and control.” Therefore, the fam ily court imposed limitations on Mother which were

5reasonably calculated to protect I.W. from harm, as required under subsection (b) of West Virginia Code § 48-9-209, and it made special wr itten findings of fact explaining that this measure was adequate to protect I.W. from ha rm, as required under subsection (c) of West Virginia Code § 48-9-209. Based on the facts before the family court at the time it entered its order, we find no error on this point.

Second, Father argues that the family court’s allocation of 50% custodial responsibility to Mother violated West Virginia Code § 48-9-2 06(a) [2001], which provides that allocation of custodial responsibility must not be “manifestly harmful to the child.” Father claims that

manifest harm would result to I.W. because th e family court found that Mother may have provided false testimony against Father of domestic abuse and because she in terfered in Father’s relationship with I.W.

We review a family court’s application of law to facts under an abuse of discretion

standard. See Syl., Carr , 216 W.Va. 474, 607 S.E.2d. 803. The family court determined that allocation of 50% custodial responsibility to Mother was in I.W.’s best interests, which necessarily entails that it would not be manifestly harmful to him. 5 In making that determination, the family court considered the following: Mother has been the primary caretaker for I.W. his entire life; Mother puts I.W. as a priority; and two psyc hologists recommended that custodial responsibility be split between Father and Mother 50/50. Given the evidence that was before the family court at the time it issued its order, we find no abuse of discretion in the family

court’s determination that allocation of 50% custodial responsibility to Mother was in I.W.’s best interests, and therefore, not manifestly harmful to him. We find no error under West Virginia Code § 48-9-206.

Third, Father argues that th e family court erred by appointin g a family court monitor to resolve parenting disputes between him and Mother outside of court, subject to judicial review.

He claims that this measure wa s in violation of West Virginia Code § 48-9-207(a) [2001], which provides, in pertinent part, that : “Unless otherwise resolved by ag reement of the parents . . . the court shall allocate responsibility for making signif icant life decisions on behalf of the child, . . . to one parent or to two parents jointly, in acco rdance with the child’s best interest[.]”

We find no error under West Virginia C ode § 48-9-207. The family court’s order allocated shared decision-making responsibility ove r I.W. to Father and Mother. The purpose of the family court monitor was to provide a nonjudic ial process of dispute resolution when Father and Mother are unable to agree on a decision for I.W. – not to usur p their decision-making authority. This measure is authorized under West Virginia Code § 48-9-208(b) [2001], which states, in part, that:

5 For a discussion on the relationship between the “best interests” standard and the “manifestly harmful to the child” standard, See John D. Athey, The Ramifications of West Virginia’s Codified Child Custody Law: A Departure from Garska v. McCoy , 106 W.Va. L. Rev. 389, 401-02 (2004).

6The court may order a nonjudicial process of dispute resolution by designating with particularity the person or agency to conduct the process or the method for selecting such a person or agency. The disposition of a di spute through a nonjudicial method of dispute resolution that has been ordered by the court without prior parental agreement is subj ect to de novo judicial review.

Therefore, we find no error in the family court’ s provision that a family court monitor would be appointed in this case.

Fourth, Father argues that the family court erred by failing to grant his petition to change I.W.’s last name. We have held: “Any name ch ange involving a minor child may be made only upon clear, cogent, and convincing evidence that the change would signifi cantly advance the best interests of the child.” Syl. Pt. 3, Lufft v. Lufft , 188 W.Va. 339, 424 S.E .2d 266 (1992). Father argues that changing I.W.’s last name is necessary to keep him closely connected to his Puerto Rican heritage. He asserts that the family court’s finding to th e contrary was “racist and should not be tolerated.” However, we are presented with no evidence that changing I.W.’s last name is necessary to keep him closely connected to his Puerto Rican heritage or to advance his best interests in any other way. The family court di d not err when it denied Father’s request to change I.W.’s last name.

Fifth, Father argues that the family court e rred in calculating child support due to Mother, who is a full-time student with no job. He claims that a car Mother received as a gift from a family friend should have been attributed to her as “income.” He cites West Virginia Code § 48

- 1-228 [2001], which provides that “gross income” for purposes of calculating child support includes: “in kind payments, such as busines s expense accounts, business credit accounts and tangible property such as automobiles and meals[ .]” Father asserts that, because a car is an automobile, Mother’s receipt of he r car as a gift qualifies as an “in kind payment.”

We have held that: “Undefined words and term s used in a legislative enactment will be given their common, ordinar y, and accepted meaning.” Wooddell v. Dailey , 160 W.Va. 65, 68, 240 S.E.2d 466, 469 (1976). A “payment” is co mmonly and ordinarily defined as “the performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation[,]” or, “The money or ot her valuable thing so delivered

in satisfaction of an obligation .” Black’s Law Dicti onary 1243 (9th ed. 2009) (emphasis added). The car Mother received was voluntarily given to her as a gift, not as a payment. We find no error in the family court’s calcu lation of child support.

Sixth, Father argues that th e family court erred by failing to order Mother to pay his attorney fees. He cites to Banker v. Banker , 196 W.Va. 535, 474 S.E.2d 465 (1996), in which

this Court outlined the factors a court should cons ider in determining whether to award attorney

fees in divorce actions . This case is a custody dispute, not a divorce action. Therefore, Banker is not controlling in this case.

Generally, the imposition of attorney fees is a matter within the family court’s discretion. Under West Virginia Code § 48-1-305(b) [2001]:

7(b) The court may compel either party to pay attorney’s fees . . . reasonably nece ssary to enable the ot her party to prosecute or defend the action[.]”

. . . .

(c) When it appears to the c ourt that a party has incurred attorney fees and costs unnecessarily because the opposing party

has asserted unfounded claims or defenses . . . the court may order the offending party . . . to pay reas onable attorney fees and costs to the other party.”

(Emphasis added). It is well-esta blished that, “the word ‘may’ is inherently permissive in nature

and connotes discretion.” Daily Gazette Co. Inc. v. W.Va. Development Office , 206 W.Va. 51, 64, 521 S.E.2d 543, 556 (1999) (interna l quotations and citations om itted). We find no abuse of discretion in the family court’s decision to not order Mother to pay Father’s attorney fees.

Seventh, Father argues that the family court erred by resolving certain factual disputes in Mother’s favor when presented wi th conflicting evidence. We ha ve provided that: “findings of fact made by the family court judge [are review ed] under the clearly err oneous standard” Syl.,

Carr , 216 W.Va. 474, 607 S.E.2d. 803. Father fails to point us to any factual finding made by the family court that was without evidentiary s upport. We find that th e circuit court did not clearly err by resolving certain factua l disputes in Mother’s favor.

Eighth, Father argues that the family court erred by calling him a “litigation bully” in its order. We are pointed to no law prescribing a remedy for this allege d error. In fact, Father cited no legal authority whatsoever in arguing that th e family court erred by calling him a “litigation bully.” Therefore, we decline to ad dress this assignment of error.

Father’s ninth and final assignment of error pe rtains to the circuit court. He argues that

the circuit court erred under West Virginia Rule of Practice and Procedure for Family Court 31(c) [2005] because it failed to gr ant him an oral argument before it refused his petition for an appeal. Rule 31(c) provides:

“ Granting Order . If a petition for appeal is granted, the circuit court shall enter an order gr anting the petition for appeal. If oral argument was requested in writing by either of the parties, or

if the circuit court desires oral argument, the granting order shall set forth a date and time for oral argument.”

(Boldface in original). Rule 31(c) is limited to cases in which the circuit court grants a petition for appeal from a family court order. The rule clearly does not apply he re, where the Father’s petition for appeal was refused. Therefore, we decline to gr ant the Father relief under West Virginia Rule of Practice and Procedure for Fa mily Court 31(c). In summary, we find no merit in any of the Father’s nine assigned errors.

8However, at oral argument, this Court was alerted by the Guardian ad Litem that, after the family court entered its order, circumstances regarding Father’s and Mother’s ability to share custodial and decision-making responsib ility over I.W. may have changed. 6 Upon this Court’s request, the Guardian ad Litem submitted three documents: (1) a Guardian ad Litem’s report on I.W.’s wellbeing; (2) a transcript from a hearing, conducted on August 8, 2017, in which the family court considered whether to temporarily modify its previous allo cation of custodial and decision-making responsibility; and (3) an orde r, entered on September 28, 2017, in which the family court temporarily modified its decision to allocate 50% custodial and decision-making responsibility to Mother, pendi ng the outcome of this appeal. In light of these new developments, we remand this case to the family court for a new hearing as to whether a change

in circumstances warrants a modification of its allocation of 50% custodial and decision-making responsibility to Mother. The family court is dire cted to consider the Guardian ad Litem’s report and its findings pursuant to the August 8, 2017, hearing and its September 28, 2017, order. The hearing shall be conducted within four weeks of entry of this decision. Finall y, the clerk is

directed to issue the mandate in this case forthwith.

Remanded with Instructions.

ISSUED: March 8, 2018

CONCURRED IN BY : Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

6 On November 16, 2016, the family court permitted the family court monitor to withdraw from this case because she was no longer engaged in the practice of law. The family court did not appoint a replacement family court m onitor in this case. Not surprisingly, Father

and Mother were unable or unwil ling to cooperate in making pare nting decisions for I.W., which resulted in further litigation before the family court after Father petiti oned this Court for an appeal.

9