1

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

NICOLLE W.,

Petitioner Below, Petitioner

v.) No. 24-ICA-5 (Fam. Ct. Mason Cnty. Case No. FC-26-2023-D-54) 

JARLANDO W.,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Nicolle W.1(“Mother”) appeals the Family Court of Mason County’s 

December 5, 2023, Final Order of Divorce that deviated from the presumption of equal 

(50-50) custodial allocation by designating Respondent Jarlando W. (“Father”) as the 

child’s primary custodial parent, awarded her parenting time every other weekend, and 

ordered her to pay child support based on her attributed income.2 Father filed a response in 

support of the family court’s decision. 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. 

The parties were married in November 2009 and separated in November 2017. They 

had one child during the marriage, who was born in September 2013. Prior to separating, 

the parties were living in San Diego, California, where Father was stationed as active 

military in the United States Marine Corps. Around November 2017, Mother was granted 

a 90-day military protection order against Father that ordered him to have no contact with 

her or the child. Mother subsequently left California with the child and moved into the 

home of the child’s maternal great-grandparents in Ohio. 

1 To protect the confidentiality of the juvenile 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 Nicolle W. is represented by William B. Summers, Esq. Jarlando W. is selfrepresented. 

FILED

September 4, 2024

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
2

After moving to Ohio, Mother became mentally unstable and left the child in the 

care of the maternal great-grandparents while she obtained medical care for her mental 

health. Between late 2018 and early 2019, upon learning that Mother was no longer 

residing with the child, Father retrieved the child and returned with him to live in 

California. The child continued to reside with Father in California until the COVID

pandemic spread in 2020 and school was cancelled. Because Father was active military 

and had no childcare provider, he permitted the child to live temporarily with the child's 

maternal great-grandparents, who had relocated to Alabama.

In January 2021, as Father was processing out of the military, he and the child 

moved to Alabama where they resided with the maternal great-grandparents. In November 

2021, he and the child relocated from Alabama to West Virginia. After their relocation to 

West Virginia, Mother began to exercise some parenting time and limited communication 

to the extent the parties were able to agree. 

In April 2023, Mother, without counsel, filed for divorce in the Family Court of 

Mason County, West Virginia.

3

In her petition, she alleged that Father prevented her from 

contacting the child until he moved to West Virginia.4 Even then, she alleged that he limited 

her contact with the child. Mother also addressed concerns with Father’s excessive 

drinking, his inappropriate and vulgar public posts on social media, and his inability to 

encourage a positive relationship between her and the child. Mother requested the family 

court to award her primary or equal custody of the child. 

Mother also moved for temporary relief when she filed for divorce, requesting that 

the family court determine custodial responsibility and time to be spent with the child. She 

further requested that Father furnish his military records, which she alleged would show a 

history of alcohol abuse and domestic violence. She also requested his fiancée’s custodial 

records since his fiancée did not have custody of her own children but was a stay-at-home 

parent for the parties’ child. 

On June 12, 2023, the family court held a temporary hearing on the divorce petition 

and entered a temporary order on June 16, 2023. In its order, the family court found that 

neither party presented evidence of a limiting factor that would warrant a limitation on 

3 The record indicates she was living in Boone County, Kentucky, and Father was 

living in Mason County, West Virginia, throughout the proceedings. 

4 Mother alleged that Father denied her all contact with the child in 2019 and refused 

to provide his mailing address so that she could send the child gifts. Mother alleged that 

the military also denied her any assistance and that in order to locate Father and her son, 

she called one of the two Domino’s Pizzas located on base and pretended to order a pizza 

and asked that they confirm her address. Only then was she able to mail her child gifts.
3

either parent’s parenting time. The court also found that the presumption of equal (50-50)

custody was rebutted because Mother was not significantly involved in the child’s life prior 

to the filing of her petition, and it was impractical since the parties lived two and a half 

hours apart. The court awarded primary custody to Father with Mother receiving parenting 

time every other weekend. The court set the final hearing for August 23, 2023. 

On July 25, 2023, Mother, by recently retained counsel, filed a motion to convert 

the final hearing into a pretrial hearing and to make the rules of discovery applicable. The 

family court granted this motion and ordered that each party was to respond within twenty 

days after a written discovery request was made. 

On August 17, 2023, Mother filed a motion for the family court to interview the 

child. The court subsequently took in-camera testimony of the child where the child 

testified that he desired to spend more time with Mother on the weekends and in the 

summer. At the conclusion, when asked if there was anything else he would like to tell the 

court, the child stated that he would like to live with Mother because he had been bullied 

at school during the previous school year.

On September 18, 2023, Father was served with Petitioner’s First Set of 

Interrogatories and Requests for Production of Documents Directed at the Respondent. 

This was hand delivered to him at the time of the child’s in-camera testimony. On October 

6, 2023, Father hand delivered his responses. However, Mother asserted that his responses 

were incomplete or deficient and sent him a letter requesting supplementation before the 

close of business on October 23, 2023. On November 6, 2023, two days before the final 

hearing, Mother filed a Motion for Sanctions requesting that the family court exclude any 

evidence related to the interrogatories and request for productions that Father did not 

respond to. 

At the beginning of the final hearing on November 8, 2023, the family court denied 

Mother’s Motion for Sanctions, based upon its timeliness. The court entered an order on 

December 5, 2023, divorcing the parties and entering a parenting plan on behalf of the 

minor child. In its order, the family court found that neither party had proven the other to 

be an unfit parent but found that the presumption of equal (50-50) custodial allocation had 

been rebutted under West Virginia Code § 48-9-203(f) (2022), finding that:

A. Mother had not been significantly involved in the child’s life for several 

years prior to the filing of her Petition, and the lack of her involvement 

was not the result of Father’s actions. Mother admits that she was not 

mentally stable during the first couple of years and that she subsequently 

sought proper medical diagnosis and treatment in order to become stable.

B. Father is a fit parent and has been the primary caretaker for the minor 

child for the past two years. 
4

C. Mother resides an approximate 2.5[-]hour drive from Father’s residence. 

A 50-50 parenting arrangement is impractical due to the distance between 

the parties’ homes. 

The family court found that it was in the child’s best interest to enter a parenting 

plan that awarded Father primary custody of the child. The plan granted Mother parenting 

time during the school year every weekend except on the first weekend of every month. 

During summer break, the court ordered the parties to alternate parenting time on a weekly 

basis, exchanging the child every Sunday at 6:00 p.m. 

Additionally, the family court ordered Mother to pay child support in the amount of 

$821.75 per month, effective December 1, 2023. The court found that Mother worked for 

thirty-four hours per week at $12.00 per hour at Castle Jewelry, for a monthly average 

gross income of $1,768.00. The court further found that at the time of the temporary divorce 

hearing in June 2023, Mother was employed as an admissions advisor with the Arizona 

College of Nursing where she earned $31.25 per hour at 40 hours per week, or $5,416.67 

gross per month and that she resigned from this job because her employer would not give 

her the day off to celebrate her son’s birthday. The court attributed Mother her previous 

income of $5,416.67 gross per month since she was not attending school full-time, not 

providing care for a preschool aged minor child, not pursuing a plan of economic selfimprovement, and did not have a disability that prevents her from working. It is from this 

final order that Mother now appeals. 

When reviewing the order of a family court, we apply the following standard of 

review: 

When a final order of a family court is appealed to the Intermediate Court of 

Appeals of West Virginia, the Intermediate Court of Appeals shall review 

the findings of fact made by the family court for clear error, and the family 

court’s application of law to the facts for an abuse of discretion. The 

Intermediate Court of Appeals shall review questions of law de novo. 

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W. 

Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family 

court orders).

This Court has previously stated that:

“Questions relating to alimony and to the maintenance and custody of the 

children are within the sound discretion of the court and its action with 

respect to such matters will not be disturbed on appeal unless it clearly 

appears that such discretion has been abused.” Syl. Pt., Nichols v. Nichols, 

160 W. Va. 514, 236 S.E.2d 36 (1977). The appellate court may reverse for 
5

abuse of discretion if “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 [lower court] makes a serious mistake 

in weighing them.” Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 

171, 179 n.6 (1995).

Jonathon F. v. Rebekah L., 247 W. Va. 562, 564, 883 S.E.2d 290, 292 (Ct. App. 2023). 

Keeping these standards in mind, we consider Mother’s issues raised on appeal. 

On appeal, Mother asserts six assignments of error that we will address in turn. First, 

she argues that the family court erroneously denied her Motion for Sanctions, which asked 

the court to exclude any evidence relating to the interrogatories and requests for production

that Father did not respond to, for being untimely. She contends that she followed the 

family court’s discovery order, which had a short time frame, and attempted to resolve the 

issue prior to the final hearing. She suggests that the court’s decision to not sanction Father 

for disregarding numerous discovery requests deprived her of essential evidence necessary 

for a fair trial regarding equal (50-50) custody of the child. We are unpersuaded by her 

argument. 

The Supreme Court of Appeals has long held that “rulings on the admissibility of 

evidence and the appropriateness of a particular sanction for discovery violations are 

committed to the discretion of the trial court.” Syl. Pt. 1, in part, McDougal v. McCammon, 

193 W.Va. 229, 455 S.E.2d 788 (1995). Although Mother notified Father that he had until 

October 23, 2023, to supplement discovery, she did not file her Motion for Sanctions until

November 6, 2023. The family court, in denying Mother’s motion for being untimely, 

reasoned that she had waited two weeks after the October 23 deadline to file her motion, 

and it was filed less than forty-eight hours before the final hearing was set to begin.

Additionally, after a review of the final hearing, Mother made no objection or argument 

regarding the family court’s denial of her motion. “Generally, the failure to object 

constitutes a waiver of the right to raise the matter on appeal.” State v. Asbury, 187 W. Va. 

87, 91, 415 S.E.2d 891, 895 (1992). Thus, we conclude that the family court did not err in 

denying Mother’s Motion for Sanctions. 

Mother next assigns error to the family court’s finding that Father was a fit parent. 

She argues that the family court did not consider her testimony that highlighted Father’s 

alcohol consumption, legal issues, and parenting practices. She further asserts that the court 

did not adequately consider the numerous items of physical evidence presented, that 

consisted of video material depicting Father’s inability to appropriately care for the child, 

which would have rebutted the (50-50) presumption of custody. We disagree. 

This Court has previously held that: 
6

This Court cannot set aside a family court’s factual findings “unless they are 

clearly erroneous.” A finding is clearly erroneous only when “the reviewing 

court on the entire evidence is left with the definite and firm conviction that 

a mistake has been committed.” Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 

223, 470 S.E.2d 177 (1996). Under the clearly erroneous standard, an 

appellate court does not reweigh the evidence and cannot reverse a family 

court’s findings simply because it may have viewed the evidence differently. 

See Mulugeta v. Misailidis, 239 W. Va. 404, 408, 801 S.E.2d 282, 286 

(2017). Further, a family court is entitled to deference to the extent it relies 

on determinations it made of the parties’ credibility. See Thomas E. v. Amy 

F., No. 13-0176, 2013 WL 5708438, at *2 (W. Va. Oct. 21, 2013) 

(memorandum decision).

James W. v. Ciara R., Nos. 23-ICA-237, -238, and -239, 2024 WL 1740353, at *6 (W. Va. 

Ct. App., Apr. 22, 2024) (memorandum decision). Based on the record before us, the family 

court did consider Mother’s testimony and physical evidence but found that Mother failed 

to prove Father was an unfit parent. In particular, the court found that the videos and 

testimony were insufficient to prove that Father was intoxicated when the child was 

present. Therefore, we conclude that Mother is simply asking that we reweigh the evidence 

and rule in her favor, which we decline to do. 

For Mother’s third assignment of error, she argues that the family court erred by 

disregarding the child’s preference to live with her. She contends that the court failed to 

make any findings pursuant to West Virginia Code § 48-9-209(f)(5)(E) (2022) that the 

child was not sufficiently matured to justify its decision in awarding Father primary 

custody, which was not the child’s wish. We do not find merit in this argument. 

In determining whether the presumption for an equal (50-50) allocation of 

physical custody has been rebutted, a court shall consider all relevant factors 

including . . . [w]hether an equal (50-50) physical allocation is . . . [c]ontrary 

to the firm and reasonable preferences of a child who is 14 years of age or 

older; and to accommodate if the court determines it is in the best interests 

of the child, the firm and reasonable preferences of a child under 14 years of 

age, but sufficiently matured that he or she can intelligently express a 

voluntary preference for one parent. 

W. Va. Code § 48-9-209(f)(5)(E). 

The record reveals that the child was ten years of age at the time of the final hearing. 

Pursuant to West Virginia Code § 48-9-209(f)(5)(E), the family court was not required to 

make any specific findings that the child was mature or could intelligently express a 

voluntary preference for one parent because the court did not determine that the child’s 

preference was in his best interest; the court is not required to adopt the preference of a 
7

child who is under fourteen years of age. Stated another way, the family court is only 

required to make such findings when it determines that the preference of a child who is 

under fourteen years age is in the child’s best interest, thus rebutting the presumption. 

Regardless, the order indicates that the court considered the child’s preference but did not 

ultimately find it to be in the child’s best interest. Therefore, we conclude that the family 

court did not abuse its discretion by not adopting the child’s custodial preference. 

Next, Mother assigns error to the family court for rejecting an equal (50-50) 

parenting plan. She argues that the family court erroneously based its decision on the child 

residing primarily with Father for the last two years and Mother residing two and a half 

hours from them. In support of her argument, she asserts that the court did not consider the 

grandparents’ significant participation in the child’s life and how Father abruptly removed 

the child from their care, only assuming sole responsibility in the last two years. We are 

unpersuaded by this argument. 

This Court has previously stated that, 

West Virginia Code § 48-9-206(a) presumes equal (50-50) custodial 

allocation of parenting time unless otherwise resolved by agreement of the 

parties. However, the family court may deviate from equal custodial time if 

the court expressly finds that the arrangement would be harmful to the child 

or that a provision of West Virginia Code § 48-9-209(f) necessitates another 

arrangement.

Jonathan F. v. Rebekah L., 247 W. Va. 562, 564, 883 S.E.2d 290, 292 (Ct. App. 2023).

In the matter before us, the family court’s order acknowledged the grandparents’ 

significant involvement in the child’s life, the timeline of Father assuming primary 

custodial responsibility, and Mother’s absence in the child’s life. The court found that 

Father had indeed rebutted the presumption of equal (50-50) custody by proving that 

Mother had not been significantly involved in the child’s life prior to the filing of her 

petition, through no fault of Father, and that she lived two and a half hours away from 

Father and the child.

5 The court further found that the parenting plan was not harmful to 

5

In determining whether a party has rebutted the presumption of equal (50-50) 

custody, West Virginia Code § 48-9-209(f)(3)(D) requires courts to consider all relevant 

factors, including whether a parent: 

Has . . . not been significantly involved in the child’s life prior to the hearing, 

except when the lack of involvement is the result of actions on the part of the 

other parent which were, without good cause, designed to deprive the parent 
8

the child and was in the child’s best interest. Therefore, we conclude that the family court

justified its decision to deviate from equal (50-50) custodial allocation, by analyzing and 

considering certain provisions of West Virginia Code § 48-9-209(f) and thus, did not abuse 

its discretion. 

For her fifth assignment of error, Mother accuses the family court of exhibiting 

inappropriate deferential treatment to Father because he was unrepresented. Mother asserts 

that because she was represented by counsel, Father received an unfair advantage from the 

court that resulted in procedural discrepancies disadvantaging her throughout the 

proceedings. However, Mother cites to no specific location in the record on appeal. 

According to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, a 

petitioner’s “argument must contain appropriate and specific citations to the record on 

appeal, including citations that pinpoint when and how the issues in the assignments of 

error were presented to the lower tribunal.” That rule further provides that this Court “may 

disregard errors that are not adequately supported by specific references to the record on 

appeal.” Id. Because Mother neither included a citation to the record indicating where the 

family court was biased towards Father due to his status as an unrepresented party nor 

where she voiced any argument or related objection to the family court regarding her 

allegation, we decline to address this argument on appeal.

For her sixth and final assignment of error, Mother argues that the family court 

abused its discretion by attributing income to her for the purpose of calculating child 

support when she had no ability to pay the same. She contends that the court failed to 

consider her lack of assets, her loss of employment, her cohabitation with a roommate so 

she could afford rent, her educational attainment, her mental health issues, her criminal 

record, and her other employment barriers pursuant to West Virginia Code § 48-1-205(a)

(2023).6 However, Mother disregards the remaining language in subsection (b) and (c) of 

that code, and as explained in detail below, we disagree with her argument. 

of contact and involvement with his or her child or children without good 

cause[.]

Courts are also required to consider whether equal (50-50) custody is “[i]mpractical 

because of the physical distance between the parties’ residences.” W. Va. Code § 48-9-

209(f)(5)(A).

6 West Virginia Code §48-1-205(a) provides that “attributed income” is: 

[I]ncome not actually earned by a parent, but which may be attributed to the 

parent because he or she is unemployed, is not working full time, or is 

working below full earning capacity, or has nonperforming or 

underperforming assets. Income may be attributed to a parent if the court 

evaluates the specific circumstances of the parent to the extent known, 
9

Subsection (b) of West Virginia Code § 48-1-205 states, in relevant part:

(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his 

or her pattern of employment so as to be unemployed, underemployed, or 

employed below full earning capacity; (2) is able to work and is available for 

full-time work for which he or she is fitted by prior training or experience; 

and (3) is not seeking employment in the manner that a reasonably prudent 

person in his or her circumstances would do, then an alternative method for 

the court to determine gross income is to attribute to the person an earning 

capacity based on his or her previous income.

In Porter v. Bego, 200 W. Va. 168, 488 S.E.2d 443 (1997), the Supreme Court of Appeals 

recognized that a family court must consider the three-part test, set out in subsection (b) of 

West Virginia Code § 48-1-205 above, when determining whether to attribute income. 

In the instant case, the family court’s conclusions of law indicate that the court 

correctly applied the facts of this case to the three-part test articulated in West Virginia 

Code § 48-1-205(b) and recognized in Porter. First, the court found that Mother voluntarily 

left her employment where she was working forty hours per week and earning $31.25 per 

hour for a job where she works approximately thirty-four hours per week at $12.00 per 

hour. Second, the court implied that Mother was available to work full-time by finding that 

she was not attending school full-time, was not providing care for a preschool aged child, 

was not pursuing a plan of economic self-improvement, and did not have a disability that 

prevented her from working. Third, the court found that attributing Mother’s former 

income to her was appropriate because her voluntary income reduction was not reasonable 

under the circumstances, explaining that Mother resigned from her former employment 

simply because her employer would not allow her to take paid time off for the child’s 

birthday. The family court additionally found that the statutory exceptions to attribution of 

income pursuant to West Virginia Code §48-1-205(c)7 were not present. Therefore, we 

including such factors as the parent’s assets, residence, employment and 

earnings history, job skills, educational attainment, literacy, age, physical 

and mental health, criminal record, and other employment barriers, and 

record of seeking work, as well as the local job market, the availability of 

employers willing to hire the parent, prevailing earnings level in the local 

community, and other relevant background factors in the case. Income may 

also be attributed to a parent if the court finds that the obligor has 

nonperforming or underperforming assets.

7

Income shall not be attributed to an obligor who is unemployed, underemployed, 

or is otherwise working below full earning capacity if any one of four conditions exist. W. 

Va. Code § 48-1-205(c). Those four conditions are as follows: 
10

conclude that since the evidence supported the family court’s findings and decision, the 

court did not abuse its discretion by attributing Mother’s former income to her for purposes 

of calculating child support.

Accordingly, based on the foregoing, we affirm the Family Court of Mason 

County’s December 5, 2023, Final Order of Divorce. 

Affirmed.

ISSUED: September 4, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

(1) The parent is providing care required by the children to whom both of the 

parties owe a legal responsibility for support and the children are of preschool 

age, or are handicapped, or otherwise in a situation requiring particular care by 

the parent;

(2) The parent is pursuing a plan of economic self-improvement which will 

result, within a reasonable time, in an economic benefit to the children to whom 

the support obligation is owed, including, but not limited to, self-employment 

or education: Provided, That if the parent is involved in an educational program, 

the court shall ascertain that the person is making substantial progress toward 

completion of the program;

(3) The parent is, for valid medical reasons, earning an income in an amount 

less than previously earned; or

(4) The court makes a written finding that other circumstances exist which 

would make the attribution of income inequitable: Provided, That in the case 

the court may decrease the amount of attributed income to an extent required to 

remove inequity.

W. Va. Code § 48-1-205(c).