1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Saundra J., Petitioner Below, Petitioner

vs.) No. 17-1145 (Kanawha County 2010-D-2381)

Robert S., Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Saundra J., by counsel Claude S. Smith, III, appeals the Circuit Court of Kanawha County’s December 21, 2017, order denying her appeal of the Kanawha County Family Court’s November 30, 2017, order. 1 In that order, the family court denied petitioner’s motion to change venue and held petitioner in contempt for failure to abide by the family court’s prior orders regarding visitation between th e minor child, M.J., and respondent father. Respondent Robert S., by counsel Brandy L. Hughart , filed a response to pe titioner’s appeal. On appeal, petitioner argues that the family court erred in finding that it had jurisdiction over the initial custody determination of M.J.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court reverses and remands th e circuit court’s December 21, 2017, order and the family court’s November 30, 2017, order due to a l ack of jurisdiction. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appr opriate to resolve the issues presented.

In September of 2010, petitioner filed a “Uni form Interstate Family Support/Paternity Petition” in Kanawha County, West Virginia, a lleging that respondent was the father of the minor child, M.J. At the time of filing, petitioner and the child were residents of Maryland, and respondent was a resident of West Virginia. In July of 2011, the family court entered a “Final Paternity and Child Support Orde r” and found that respondent was the biological fa ther of M.J.; that the child had been in petitioner’s custody si nce April of 2010; and that respondent failed to fully support the child during th is time. The family court or dered that respondent pay $12,537.12 dollars in arrears for this period and $783.57 dolla rs per month in child support. However, the

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); Melinda H. v. William R. II , 230 W.Va. 731, 742 S.E.2d 419 (2013);

State v. Brandon B. , 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990). 

### FILED
February 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 family court made no findings regarding the allo cation of custody between the parents or of the implementation of a parenting plan.

Respondent filed a petition for modification of child support in 2012, but did not request a parenting plan. The family court modified respondent’s monthly ch ild support obligation. Later, in June of 2012, the family court entered a supplemental order confirming the modification of child support. In this order, th e family court awarded care, custody, and control of the child to pe titioner even though neithe r party requested a child custody determination. The family court also made no speci fic findings regarding jurisdicti on, providing only that “[t]he [c]ourt has jurisdiction of the subject matter and the parties to this action, and venue is proper in this [c]ourt.” Respondent filed tw o subsequent petitions for modi fication of child support, which

were denied.

In June of 2016, respondent filed a “Petition for Allocation of Custodial Responsibility.” In his petition, respondent alleged that petition er and the child had lived in Prince George’s County, Maryland for a period of more than one year, and pe titioner refused to allow him meaningful contact with the chil d. This petition was respondent’s first formal motion for contact with the child and a custody determination.

The family court held a hearing in June of 2016 on respondent’s motion. By order entered on November 23, 2016, the court found the following: petitioner and the child have resided in Prince George’s County, Maryland, since the child ’s birth; respondent liv ed in West Virginia during that time; respondent and the minor child have not developed a bond, but respondent desires to do so; and th at a gradual transition period should be implemented so that the child can become acquainted with respondent. Further, the family court ordered that video or telephone calls between respondent and the ch ild continue and that the parties “work t ogether to schedule the visits.” The family court made no jurisdictional findings in this order.

The family court held a status conference in January of 2017. 2 The family court reasoned that no further litigation was necessary in the matter because the prior order established a parenting plan and set forth re spondent’s child support obligation. Accordingly, the family court ordered that video and telephone cal ls continue as required in th e prior order and dismissed the case from the active docket. The family court included language indicating to the parties that this was a final order and subject to appeal . Neither party appealed this order.

In July of 2017, respondent filed a “Peti tion for Order to Show Cause Why Petitioner Should Not Be Held in Contempt” alleging that respondent had one successful video contact with the child, but, despite multiple further attemp ts, was unable to make further contact due to the child’s unavailability or the child’s desi re not to talk with respondent. Additionally, respondent alleged that his counsel wrote a letter to petitio ner in an attempt to “set out specific

times that calls would occur.” Fi nally, respondent alleged that peti tioner influenced the child and purposefully hindered communicatio n, and that those actions amount ed to parental alienation.

2 According to the record, a new family court judge assumed this case following the

November 2016 election.3 Petitioner filed a “Notice of Foreign Custody Determination” that indicated the Kanawha County Family Court order was re gistered in the Circuit Cour t of Prince George’s County, Maryland. Additionally, petitioner filed a pro se motion for change of venue alleging that the child lived in Maryland since birth and that Maryland had jurisdiction over the child. This motion was petitioner’s firs t objection to jurisdiction.

The family court held a hearing on petitioner’s motion for change of venue and respondent’s order to show cau se petition in November of 2017. The family court found that petitioner failed to make the chil d available for transitional parenting time as required by the June 21, 2016, court order, and that she was willful ly in contempt of that order. Further, the family court found that respondent was entitle d to “make-up time” for the missed parenting and ordered that the child spend December 22, 2017, through December 31, 2017, with respondent in West Virginia. In regard to ju risdiction, the family court found that no other court has requested jurisdiction during the proceedings and that petitioner never challe nged or objected to jurisdiction in West Virginia. Ul timately, the family court deni ed petitioner’s motion and found petitioner in contempt in its November 30, 2017, or der. Petitioner appealed the family court’s November 30, 2017, order to the circuit court on December 20, 2017. The circuit court found that the family court’s order wa s not clearly erroneous nor did it abuse its discretion and affirmed the family court’s order on December 21, 2017. Petitioner now appeals.

We review the matter under the following standard:

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

On appeal, petitioner argues that the Kanawh a County Family Court did not have subject matter jurisdiction over the custody of the infa nt child and erred in exercising jurisdiction. According to petitioner, Maryland is the child ’s “home state” and sh ould have been given priority when determining jurisd iction. Respondent does not dispute th at West Virginia is not the child’s home state. However, respondent assert s that petitioner accepted the family court’s jurisdiction for several years w ithout objection or appeal and, thus, is unable to challenge jurisdiction now. Upon our review , we concur that the Kanawh a County Family Court did not have jurisdiction over the child.

“The [UCCJEA] is a jurisdictional statute, and the requirements of the statute must be met for a court to have the power to adj udicate child custody disputes.” Syl. Pt. 6, Rosen v.

Rosen , 222 W.Va. 402, 664 S.E.2d 743 (2008) . The UCCJEA is found in West Virginia Code § 48-20-201(a) and specifies that:

(a) Except as otherwise provided in secti on 20-204 [§ 48-20-204], a court of this State has jurisdiction to make an initia l child custody determination only if:4 (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 20-207 [§ 48-20- 207] or 20-208 [§ 48-20-208], and:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant

connection with this State othe r than mere physical presence;

and

(B) Substantial evidence is availabl e in this State concerning the child’s care, protection, traini ng and personal relationships;

(3) All courts having jurisdiction under subsection (1) or (2) of this

subdivision have declined to exerci se jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody

of the child under sec tion 20-207 or 20-208; or

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3) of this subsection.

This Court has outlined the proper analysis in determining jurisdiction as such:

[A] court of this state must satisfy one of the four bases of juri sdiction set forth in Section 201(a). These four bases have b een aptly summarized as 1) “home state” jurisdiction; 2) “significant connection” jurisdiction; 3) “jur isdiction because of declination of jurisdiction”; and 4) “default” jurisdiction. See Rosen v. Celebrezze, 117 Ohio St.3d 241, 883 N.E.2d 420, 427 ( 2008). These jurisdictional bases do not operate alternatively to each other, but rather, in order of priority—reaching the next basis of jurisd iction only if the preceding basis does not resolve the jurisdictional issue.

In re K.R. and P.R. , 229 W.Va. 733, 740, 735 S.E.2d 882, 889 (2012). “To determine whether a state qualifies as a child’s ‘home state’ for purposes of determin ing initial jurisdiction under W. Va. Code § 48–20–201(a) (Repl.Vol.2009), a court mu st analyze whether any state qualified as the child’s ‘home state’ at any time with in the six months immediately preceding

commencement of the action.” Id. at 734, 735 S.E.2d at 883, syl. pt. 3.

In this case, the family court properly exer cised jurisdiction over the parties’ original child support dispute pursuant to the Uniform Interstate Fam ily Support Act (“UIFSA”), West5 Virginia Code §§ 48-16-101 to -903 , as respondent was a resident in the state of West Virginia and petitioner resided outside of the state. 3 However, that statute does not confer jurisdiction to all domestic disputes to the courts of this stat e. Rather, the jurisdictional statutes for child support orders and child custody alloca tions are separate and distinct. See Ellithorp v. Ellithorp

, 212 W.Va. 484, 492, 575 S.E.2d 94, 102 (2002) (apply ing the jurisdictiona l statutes of the UIFSA and the UCCJA, predecessor of the UCCJEA , separately). Therefore, the family court was required to meet the jurisd ictional requirements of the UCCJEA in order to allocate custodial responsibility, regard less of the fact that it had s ubject matter juri sdiction over the original child support dispute.

Further, pursuant to syllabus point three in In re K.R. , the family court was required to analyze if any state qua lified as the “home state” of the ch ild before assuming jurisdiction. On appeal, it is undisputed that the home state of the child is Mary land. The family court found that

the child has lived in that state with petitioner since April of 2010, which satisfies the statutory requirement of six months or more. West Virgin ia could only be afforded jurisdiction over that

child if the “court of the home stat e of the child has declined to exercise jurisdiction.” However,

there is no evidence in the record that Maryland declined to exer cise jurisdiction. Therefore, because the requirements of the UCCJEA were not met, the family court did not have jurisdiction to a llocate custodial responsibility in its June of 2012 order when it granted petitioner care, custody, and control of the child, sua sponte. Likewise, the family court erred by exercising jurisdiction in June of 2016 over res pondent’s “Petition for Allocation of Custodial Responsibility.” Instead, the family court should ha ve considered the home state of the child and determined whether the Maryla nd court desired to exercise jurisdiction over the matter.

Although we acknowledge that petitioner did not object to the family court’s jurisdiction until later in the proceedings, we reiterate that “[s]ubject matte r jurisdiction under the [UCCJEA] cannot be conferred by consent, waiver, or estoppel.” Rosen , 222 W.Va. at 404, 664 S.E.2d at 745, syl. pt. 5. Respondent’s assertion that “[a] lit igant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal” has no application in this case. Syl. Pt. 1, Maples v. W.Va. Dep’t of Commerce , 197 W.Va. 318, 475 S.E.2d 410 (1996). The record does not reflect that petitione r invited or actively contributed to this jurisdictional error. Responde nt acknowledges that the family court issued its

first custodial allocation sua sponte and it appear s the second jurisdictional error was an oversight by the family court following that prior allocation.

Accordingly, for the foregoing reasons, we reverse the circuit court’s December 21, 2017, order affirming the family court’s November 30, 2017, order and the fa mily court’s “Order Finding Petitioner in Contempt of Court and Fi nal Order Dismissing Motion to Change Venue.” Further, we find it necessary to reverse the fami ly court’s “Final Supplemental Order,” entered September 4, 2012; “Proposed Order From J une 21, 2016,” entered November 23, 2016; and “Final Order,” entered February 4, 2017, in as much as these orders affect the custodial

3 West Virginia Code § 48-16-401(a)(1) provid es that “[i]f a support order entitled to recognition under this article ha s not been issued, a responding tribunal of this state with personal jurisdiction over the partie s may issue a support order if . . . [t]he individual seeking the order resides outside this state[.]”6 allocation over M.J. only 4 and remand this case to the circuit court with direction to forthwith remand to the family court for further proceedings to determine the proper jurisdiction for this matter in accordance with West Virginia Code § 48-20-201 and this Court’s prior holdings. The family court is hereby ordered to hold the appr opriate hearings and issue an order on these findings within sixty days. The Clerk is hereby di rected to issue the mandate contemporaneously

herewith.

Reversed and remanded.

ISSUED : February 15, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

4 The family court’s orders addressi ng child support remain in effect.