                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Richard D.,
Petitioner Below, Petitioner                                                      FILED
                                                                            November 3, 2014
vs) No. 14-0039 (Pleasants County 11-D-38)                                   RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Katheryn B.,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Richard D., by counsel Brian K. Carr, appeals the order of the Circuit Court of
Pleasants County, entered December 6, 2013, that denied his appeal of the final order of the
Family Court of Pleasants County, entered May 1, 2013. The family court adopted Respondent
Katheryn B’s proposed parenting plan for the parties’ daughter and determined Mr. D.’s child
support obligation. Ms. B., by counsel John M. Butler, filed a summary response in support of
the circuit court’s order, to which Mr. D. replied.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

       The parties, who were never married, have one child together, a daughter, B., who was
born on July 6, 2009, and would now be five years old. Mr. D.’s paternity was established via a
DNA test. The parties did not live together; however, Ms. B., B., and Ms. B.’s teenaged son had
occasional overnight visits at Mr. D.’s home. Otherwise, Ms. B. and her children resided with
Ms. B.’s mother (“B.’s grandmother”) at B.’s grandmother’s home.

        On May 14, 2011, Ms. B. and her children moved out of B.’s grandmother’s home.
Litigation commenced in this case three days later, on May 17, 2011, when Mr. D. filed an ex
parte petition seeking custody of B. on the ground that Ms. B. had removed B. from B’s
grandmother’s home and taken her to an unknown location. That same day, the family court
entered an ex parte order granting temporary custody to Mr. D. and setting a hearing. However,
soon thereafter, the order was dissolved, Ms. B. kept physical custody of B., and Mr. D. was
given visitation with B.

       Following various pre-trial hearings and continuances, the case came on for final hearing
on December 4, 2012, and December 27, 2012. Ms. B., Mr. D., B.’s grandmother, and Ms. B.’s
two brothers testified at these hearings. In summary, the evidence showed the following: Ms. B.
works forty hours a week, Monday through Friday. Mr. D. works fourteen days each month for
twelve hours a day. Mr. D. also works considerable overtime. However, Mr. D. does not work at

                                                1

all in the months of November and December. When B. was born, Ms. B. took a six to eight
week-long maternity leave and breast-fed B. Ms. B. claimed that Mr. D. missed only a day or so
of work as a result of B.’s birth. When Ms. B.’s maternity leave ended, B’s grandmother babysat
B. while Ms. B. worked. Mr. D. often stopped by B.’s grandmother’s house before and/or after
work, or when he was off work, to assist in caring for B. These visits lasted from twenty minutes
to three hours. Mr. D. claimed that he and B.’s grandmother provided the bulk of B.’s care, with
Ms. B. “trailing a distant third.” Mr. D. also claimed that when Ms. B. and B. visited his home,
he and Ms. B. shared caretaker duties for B. Conversely, Ms. B. claimed that (1) she bore the
majority of B.’s day-to-day care; (2) B.’s grandmother served as B.’s caretaker only when Ms. B.
was at work; (3) B.’s grandmother babysat B. whether Mr. D. was working or not; (4) when Ms.
B. and B. visited Mr. D. at his home, Ms. B. undertook the majority of B.’s care; and (5) during
the two months Mr. D. was off work each year, he never took sole responsibility for B.’s care.

         By final order entered May 1, 2013, the family court found the following. Ms. B. and B.’s
grandmother had provided the majority of B.’s care and Ms. B. served at all times relevant as
B.’s primary residential parent. Mr. D. failed to present sufficient evidence that he was entitled to
a parenting plan wherein each parent had equal custodial responsibility for B. Ms. B.’s proposed
parenting plan was in B.’s best interests, and was “fair and reasonable, and quite generous” given
that it granted Mr. D. more parenting time than he was due pursuant to West Virginia Code § 48­
9-201.1 Specifically, the family court granted Mr. D. two weekends per month, two overnights
every two weeks, two weeks in the summer, and alternate holidays for a total of 120 days with B.
each year.

        Mr. D. appealed the family court’s final order to the circuit court. The circuit court denied
Mr. D’s appeal by order entered December 6, 2013, on the ground that the family court “neither
made any clearly erroneous findings of fact nor . . . abused its discretion in the application of law
to those facts.” Mr. D. now appeals the circuit court’s order.

       We review a circuit court’s ruling on a final family court order 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).



       1
          West Virginia Code § 48-9-206(a) requires a family court to “allocate custodial
responsibility so that the proportion of custodial time the child spends with each parent
approximates the proportion of time each parent spent performing caretaking functions for the
child prior to the parents’ separation or, if the parents never lived together, before the filing of
the action. . . .”



                                                 2

        Mr. D. raises four assignments of error on appeal. Mr. D. first argues that the circuit court
erred in affirming the family court’s order, because the family court failed to adopt his parenting
plan which gave the parties equal custodial time with B. Relatedly, Mr. D. argues that the family
court erred in making conclusory findings of fact in regard to the caretaking functions he
performed on behalf of B.

        In the order on appeal, the circuit court found that the family court did not abuse its
discretion in adopting Ms. B.’s proposed parenting plan because, based on the testimony adduced
before the family court in this matter, Ms. B.’s parenting plan more closely represented the
percentage of caretaking by each party prior to the filing of this action. The circuit court also
found (1) that Ms. B. performed a majority of the day-to-day caretaking of B, and (2) that it was
uncontroverted that, prior to the initiation of these proceedings, Mr. D. had B. for very few
overnight visits without Ms. B. present. Based on this evidence, and our review of the record on
appeal, we cannot say that the circuit court erred in affirming the family court’s adoption of Ms.
B.’s parenting plan.

       With regard to Mr. D.’s claim that the circuit court erred in affirming the family court’s
allegedly conclusory findings, we note that Mr. D. focuses on the fact that the family court did
not determine the percentage of time he served in various caretaker functions for B. However,
we also note that Mr. D.’s counsel admitted that Mr. D. failed to complete the family court’s
parenting plan form which asks each parent to list the percentage of time he or she performed
various caretaker functions for their child(ren). Therefore, we find it disingenuous that Mr. D.
now claims error on this ground given that he had the opportunity to provide those percentages to
the family court, but failed to do so.

        Mr. D.’s second assignment of error regards West Virginia Code § 48-13-501, which
requires use of the extended shared parenting child support formula where each parent has the
child for more than 127 days per year, as follows:

       Child support for cases with extended shared parenting is calculated using
       Worksheet B. The following method is used only for extended shared parenting:
       That is, in cases where each parent has the child for more than one hundred
       twenty-seven days per year (thirty-five percent).

(Emphasis added.) Based on his claim that the family court granted him 135 overnights with B.
each year, Mr. D. argues that the family court erred in failing to calculate his child support
obligation using the extended shared parenting child support formula, as opposed to the basic
shared parenting child support formula.

       We first note that Mr. D. fails to explain how Ms. B.’s parenting plan, which was adopted
by the family court, grants him 135 overnights with B. each year. We also note that West
Virginia Code § 48-13-501 mentions the number of days a child spends with a parent, and not
the number of overnights the child spends with a parent. Here, the parenting plan adopted by the
family court grants Mr. D. 120 days with B. each year. One hundred and twenty-days is
obviously less than the threshold of “more than 127 days” provided by West Virginia Code § 48­
13-501. Therefore, the family court rejected the extended shared parenting child support formula,

                                                 3

and correctly applied the basic shared parenting formula in calculating Mr. D.’s child support
obligation.

        Mr. D. also claims that the family court erred with respect to its determination of his
gross income, the valuation of his overtime pay, and the credit due him for that portion of his
health insurance premium attributable to B.’s coverage. In its final order, the family court
provided a detailed accounting of the manner in which it applied the basic shared formula in this
case. For example, in calculating Mr. D.’s child support obligation, the family court used the
“gross pay” amount listed on his 2012 W-2,2 and the overtime pay listed on his end-of-year pay
stubs for 2010, 2011, and 2012. The family court then averaged Mr. D’s overtime pay for 2010
through 2012, divided that amount by thirty-six months to determine Mr. D’s average monthly
overtime, and properly assessed one-half that monthly amount in calculating Mr. D’s child
support obligation.3 The family court also credited Mr. D. for that portion of his health insurance
premium attributable to cost of B.’s coverage.4 The circuit court reviewed the family court’s
child support calculation in light of the record on appeal and found no abuse of discretion.
Following our own review of the record on appeal, we find that the circuit court did not err in
affirming (1) the family court’s use of the basic shared parenting formula; (2) its determination
of Mr. D.’s gross income, overtime, or credit for health insurance premiums; or (3) its
calculation of Mr. D.’s child support obligation.

        Mr. D.’s third assignment of error is that the family court erred in failing to credit him for
in-kind child support contributions for which he did not have a receipt. The family court gave
Mr. D. credit for in-kind child support contributions for which he provided documentary
evidence; however, it refused to give any such credit for unsubstantiated in-kind child support.
On appeal, the circuit court found that the “decision to disregard unsubstantiated in-kind support
was wholly in the discretion of the family court judge.” We concur. Although we have said that
in-kind benefits may be considered when a family court sets a child support obligation,5 the party
seeking a credit for in-kind support bears the burden of proving that the contributions, in fact,
have been rendered. Here, Mr. D. failed to meet that burden. As such, we find that the circuit
court did not err in regard to this assignment of error.



       2
           West Virginia Code § 48-1-228(a) defines “gross income” as “all earned and unearned
income.”
       3
         West Virginia Code § 48-1-228(b)(6) provides that “gross income” includes, but is not
limited to, “[a]n amount equal to fifty percent of the average compensation paid for personal
services as overtime compensation during the preceding thirty-six months. . . .”
       4
          West Virginia Code § 48-13-602(c) provides that “[a]fter the total child support
obligation is calculated and divided between the parents in proportion to their adjusted gross
income, the amount of the health insurance premium added to the basic child support obligation
is deducted from the support obligor’s share of the total child support obligation. . . .”
       5
        See Hicks v. Hicks, 206 W.Va. 492, 526 S.E.2d 14 (1999); Rogers v. Rogers, 197 W.Va.
365, 475 S.E.2d 457 (1996).
                                                  4

        Mr. D.’s fourth and final assignment of error is that the family court erred in failing to
allocate the dependent tax exemption for B. to Mr. D. in alternating years. West Virginia Code §
48-13-801 provides that,

       [u]nless otherwise agreed to by the parties, the court shall allocate the right to
       claim dependent children for income tax purposes to the payee parent except in
       cases of extended shared parenting. In extended shared parenting cases, these
       rights shall be allocated between the parties in proportion to their adjusted gross
       incomes for child support calculations. In a situation where allocation would be of
       no tax benefit to a party, the court need make no allocation to that party. However,
       the tax exemptions for the minor child or children should be granted to the payor
       parent only if the total of the payee parent’s income and child support is greater
       when the exemption is awarded to the payor parent.

(Emphasis added.) As we noted above, pursuant to West Virginia Code § 48-13-501, the
extended shared parenting formula applies only where “each parent has the child for more than
one hundred twenty-seven days per year. . . .” Given that Mr. D. was granted only 120 days with
B. each year, the extended shared parenting formula does not apply. Therefore, in accordance
with West Virginia Code § 48-13-801, the family court properly allocated to Ms. B. the right to
claim B. for income tax purposes, because she is the “payee parent” in this case.

       For the foregoing reasons, we affirm.
                                                                                        Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                5

