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No. 21-0253 – Jared M. v. Molly A.

WOOTON, Justice, dissenting:

In this case, the majority reverses and remands the case to the family court, 

“find[ing] that the family court’s finding of no substantial change in circumstances was 

clearly erroneous[.]” I disagree with the majority’s decision; under our established 

standard of review this case should be affirmed. Therefore, I respectfully dissent. 

At its core, this case is easily resolved by applying the sole syllabus point 

relied upon by the majority – the standard of review: 

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). 

The issue is whether the facts constitute a substantial change in 

circumstances that would warrant a modification of the parenting plan entered into between 

two unmarried parents. Therefore, resolution of this issue concerns the application of the 

law to the facts presented, which means the family court’s decision is reviewed under an 

abuse of discretion standard. See id. In this regard, the Court has previously stated that 

“we will not disturb a . . . court’s decision unless the . . . court 

makes a clear error of judgment or exceeds the bound of 

FILED

April 26, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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permissible choices in the circumstances.” Wells v. Key 

Commc’ns, L.L.C., 226 W.Va. 547, 551, 703 S.E.2d 518, 522 

(2010) (citation omitted). This Court has also observed that 

“[i]n general, an abuse of discretion occurs when a material 

factor deserving significant weight is ignored, when an 

improper factor is relied upon, or when all proper and no 

improper factors are assessed but the . . . court makes a serious 

mistake in weighing them.” Shafer v. Kings Tire Serv., Inc., 

215 W.Va. 169, 177, 597 S.E.2d 302, 310 (2004) (citation 

omitted). This Court has also invariably stated that “[u]nder 

abuse of discretion review, we do not substitute our judgment 

for the circuit court’s.” State v. Taylor, 215 W.Va. 74, 83, 593 

S.E.2d 645, 654 (2004) (Davis, J., dissenting) (citing Burdette 

v. Maust Coal & Coke Corp., 159 W.Va. 335, 342, 222 S.E.2d 

293, 297 (1976)). Thus, a family court’s decision is entitled to 

significant deference. Absent an abuse of discretion, this Court 

must refrain from substituting its judgment for that of the 

family court, even if this Court might have decided a case

differently. 

Amanda A. v. Kevin T., 232 W. Va. 237, 244-45, 751 S.E.2d 757, 764-65 (2013)

(emphasis added). 

 In order for a parenting plan to be modified, the law requires that the 

following burden of proof be met: 

West Virginia Code § 48-9-401(a) (2009) permits a 

court to modify a parenting plan order on the basis of a 

substantial change in circumstance that arises after the 

parenting plan order is entered if such change was not provided 

for in the parenting plan and modification is necessary to serve 

the best interests of the child.

Syl. Pt. 3, Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). Thus, under the 

above-referenced statute, a parent seeking modification of a parenting plan must produce 
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evidence of the following in order to be successful: (1) a substantial change in 

circumstance, and (2) modification must be in the best interests of the child. See id. 

The grounds for the petitioner, Jared M.’s, petition and motion seeking to 

modify the parenting plan were solely focused on employment – both the petitioner’s and 

the respondent Molly A.’s. Significantly, the petitioner’s reliance on his change in 

employment appeared to be targeted at reducing his child support obligation. The 

petitioner did not list the “child’s improved health” as one of the alleged substantial 

changes justifying modification, which explains why the family court’s order did not go 

into the child’s health in any great detail. 

At the family court hearing, which lasted some seven and one-half hours, the 

petitioner testified, produced eleven witnesses, and thirty-two exhibits. The respondent 

called a single witness to testify, the child’s pediatric endocrinologist.

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1 Despite the fact the petitioner never sought a modification of the parenting plan 

because of the improvement in his child’s medical condition, the majority ignores this fact, 

finding that it is “appropriate to consider [the child’s] medical condition in connection with 

[the petitioner’s] other alleged changes in circumstances.” Further, the majority takes on 

the role of a trier of fact when it makes the following factual finding: 

we find on these facts, and for this child, four years of time and 

childhood development, combined with the improvement in 

her medical condition, represented “a substantial change . . in 

circumstances of the child” for the purposes of West Virginia 

Code § 48-9-401(a) and that the family court committed clear 

error when it determined otherwise. 

Again, the petitioner never asked for (and the family court never made) such a 

determination in regard to the child’s medical condition. Consequently, it is unclear why 

the majority feels compelled to engage in an analysis of the child’s medical condition in its 
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In a very detailed order the family court made specific findings which 

included the fact that the respondent had begun to work outside the home. Specifically, 

the family court found that 

[t]he parties were never married. It was anticipated that the 

Respondent would begin to work outside of the home in the 

future because she would need to support herself and the child. 

It could not be expected that Petitioner and Respondent’s father 

would support Respondent the rest of her life. The Court does 

not believe that, and the Court does not believe Respondent’s 

starting work when the child started school is a significant 

change of circumstances. 

Further, the family court found that the petitioner’s change in employment was not a 

significant change in circumstances. In this regard, the family court found that the 

petitioner “is a full-time independent contractor who spends time in the corporate office. 

The Petitioner travelled 30,000 miles in 2016 and 2017 . . . which is significant travel time.” 

Thus, the family court determined that the petitioner’s new job was not a significant change 

from his prior job where he worked in the office three to four days a week, in terms of time 

spent away from the home. Further, the family court found that the petitioner’s evidence 

that he was a “good father” failed to constitute a change in circumstances, and that there 

was “insufficient evidence that Respondent worked significant overtime that would impact 

her ability to care for the child.” The family court also considered evidence from the child’s 

medical doctor, who testified that he could not opine “as to the Petitioner’s caretaking skills 

determination that there was a substantial change of circumstances as a matter of law. 

Moreover, it is unclear just what determination the family court made in this regard that 

the majority finds to be clear error. 
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for a medically fragile child[,]” because he had had limited interaction with the petitioner. 

In this same vein, the doctor also testified that the six-year-old child is medically fragile, 

requires medicines throughout the day, has restrictions on activities, and could take a quick 

turn for the worse. Finally, the family court also rejected the petitioner’s attempt to show 

that the respondent was a bad parent. In this regard, the family court found the petitioner’s 

assertion that “a substantial change in circumstances occurred because the child receiv[ed] 

a failing grade on a butterfly picture test in Kindergarten,” to be without merit.2

 

Having heard and considered all the evidence offered in support of the 

petitioner’s position first hand, the family court concluded that the petitioner had failed to 

prove that a substantial change of circumstance warranting a modification of the parenting 

plan had occurred, although it did make a minor change to the parenting plan in regard to 

the “first babysitter” provision. The court also found that the respondent was entitled to 

attorney fees and ordered the petitioner to pay $5,000 for attorney fees. 

On appeal, the circuit court affirmed the family court’s decision.3

 In so 

doing, the circuit court found that its 

2 The family court also noted that “[t]he Petitioner spent a voluminous amount of 

the Court’s time presenting his case to prove that a substantial change in circumstances 

ha[d] occurred.” 

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On the petitioner’s first appeal of this case, we remanded with instructions to the 

circuit court that it entered a new order containing findings of fact and conclusions of law 

sufficient to allow a meaningful review. See Jared M. v. Molly A., 2020 WL 7233165 (W. 

Va. filed Dec. 7, 2020) (memorandum decision). Upon remand, the circuit court entered a 

detailed eight-page order, which forms the basis for the instant appeal.
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review of the October 26, 2018, hearing supports the Family 

Court’s ruling that [the petitioner’s] evidence and witnesses 

emphasized that he is good parent, but did not support and 

further his burden to prove that a substantial change in 

circumstances has occurred during the intervening three-year 

time period [since the original parenting plan was put in place.]

Under this Court’s precedent, the family court’s decision is entitled to 

significant deference. Accordingly, absent an abuse of discretion, the majority should 

have refrained from substituting its judgment for that of the family court, even if the 

majority would have decided the case differently. Amanda A. v. Kevin T., 232 W. Va. 237, 

244-45, 751 S.E.2d 757, 764-65 (2013). However, it appears that the majority has deviated 

from our established standard of review. More precisely, the majority assumed the role of 

factfinder and, upon re-examination and reweighing the evidence, substituted its judgment 

for that of the family court and concluded that a substantial change in circumstances 

existed.

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 In light of the fact that there is no abuse of discretion apparent from the appendix 

record, the family court’s and circuit court’s decisions should have been affirmed. 

For the foregoing reasons, I respectfully dissent. 

4 I further question the majority “find[ing] that the family court erred . . . by failing 

to decide whether further modification of the parenting plan was necessary for the child’s 

best interests. . . .” See W. Va. Code § 48-9-401(a). Given that the family court did not 

find any substantial change in circumstances warranting a modification of the parenting 

plan, a “best interests” analysis was unnecessary. The majority correctly acknowledges this 

fact, but goes on to find error in the family court’s failure to decide the best interests 

component. The need to find error in this regard was avoidable. In light of the majority’s 

determination that a substantial change in circumstances was supported by the evidence, 

all it had to do was remand the case for a “best interests” determination in accordance with 

West Virginia Code § 48-9-401(a).