                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Brian L.,
Respondent Below, Petitioner                                                       FILED
                                                                              September 9, 2019
vs) No. 18-0752 (Cabell County 13-D-886)                                        EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Heather E.,
Petitioner Below, Respondent


                               MEMORANDUM DECISION


        Petitioner Brian L., pro se, appeals the Circuit Court of Cabell County’s July 17, 2018,
order that affirmed a family court order denying his request for modification of an order directing
that he have no contact with his child. Respondent Heather E., by counsel Arik C. Paraschos and
Noel M. Olivero, filed a response in support of the circuit court’s order. Petitioner submitted a
reply.

       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 briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

       Petitioner Brian L. (“Father”) and Respondent Heather E. (“Mother”) are the parents of
C.L., who was born on February 10, 2012, in Virginia. The couple never married and ceased living
together on a consistent basis shortly after the child’s birth. Father moved to Texas and Mother
and child to Kentucky and, eventually, to West Virginia where Mother married.

        A custody battle immediately ensued, resulting in a complicated procedural history that is
set forth in detail in Brian L. v. Heather E., No. 14-1155, 2015 WL 6955142 (W.Va. Nov. 6, 2015)
(memorandum decision). For purposes of this appeal, the following facts related to those
proceedings are relevant: On January 8, 2013, Mother filed a temporary emergency protective
order against Father in the Magistrate Court of Cabell County after Father took the child to Texas
without her consent.1 Also in January of 2013, Mother filed a custody petition in Virginia, where


       1
       In Brian L. v. Heather E., No. 14-1155, 2015 WL 6955142 (W.Va. Nov. 6, 2015)
(memorandum decision), we described this incident as follows:



                                                  1
the child was born, and, ultimately, the couple entered into an order there in which they agreed to
joint (50/50) legal and physical custody of the child. On June 17, 2013, Father moved to dismiss
the temporary emergency protective order in Cabell County and remand the case to Texas on the
issue of custody, to which Mother responded and also sought to register the Virginia custody
decree. Following a hearing in the Family Court of Cabell County, Father filed, in Texas, a petition
to modify the agreed final order that was entered in Virginia and for a temporary restraining order
(“TRO”) against Mother. The TRO was granted. In response, Mother filed an emergency ex parte
petition in Cabell County to grant her full custody of the child until the jurisdictional matters were
resolved. The family court granted Mother’s emergency petition because, among other things,
Father instituted a judicial proceeding in Texas while a pending case under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”) was ongoing in West Virginia. According
to the family court, Father failed to inform the Texas court of the same, and, in so doing, Father
abused the judicial process in Texas. Ultimately, the family court determined that West Virginia
met the requirements to assume jurisdiction under the UCCJEA. The circuit court affirmed this
decision.

        Thereafter, following a hearing on the previously entered emergency ex parte order that
granted Mother full custody, and also on Mother’s petition for child support and for attorney’s
fees, the family court entered an order on July 29, 2014, that, relevant to this appeal, ordered that
the ex parte order shall remain in full force and effect and that Father have no contact with the
child while the outstanding action in Texas continues “since he is a flight risk with the child.”
Father was also ordered to pay Mother child support and $11,000.00 in attorney’s fees. Father
appealed this order to the circuit court, which affirmed. Father thereafter appealed the circuit
court’s order, as well as the prior order regarding jurisdiction, to this Court. This Court affirmed
both orders. See Brian L., 2015 WL 6955142.

                                              The present case

        On January 17, 2018, Father filed a petition for modification of the July 29, 2014, order
that ordered that he have no contact with the child. Father averred that he “surrendered his [Texas]


       The parties arranged a meeting on December 30, 2012, at a hotel in Barboursville,
       West Virginia, as Father and his grandmother were traveling back to Texas from
       Ohio after the holidays. The Family Court of Cabell County found that, although
       Father wished to take [the child] with him to Texas for an extended stay, Mother
       would not agree; rather, Mother offered to let Father visit with [the child] at the
       hotel for about an hour. Mother left the hotel at approximately 11:00 p.m., at which
       time Father and his grandmother departed the hotel and took the child to Texas.
       Although Father contends that he took [the child] to Texas with Mother's
       permission, Mother disagrees; furthermore, Father's grandmother testified that
       when Mother left the hotel, Mother told them that she would be back in an hour to
       get [the child]. Father refused to return [the child] to Mother.

Id. at *1 (footnote omitted).



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residence indefinitely[,]” that the Texas case has been dismissed,2 and that “[t]his was done to
satisfy the respondent[’]s counsel who implied that a Texas case made the father a ‘flight risk.’”
Father also averred that he had moved to West Virginia where he enrolled his older child in school.
Father “ask[ed] the court for a reinstatement of shared parenting, so the child can be reunited with
siblings and extended family.”3

         On March 7, 2018, Mother filed a motion to dismiss the petition for modification. She
argued that Father, who had previously been ordered to pay $11,000.00 in attorney’s fees, had paid
only $305.00 of that amount and that this matter should not be permitted to proceed further until
Father has paid all outstanding attorney’s fees. Mother requested that Father be held in contempt
for failure to pay. She further argued that the petition for modification failed to allege any change
of circumstance. Mother objected to any request for parenting time, stating that the child has had
no contact with Father for four years and that Father “is essentially a stranger to him. . . . [Father]
will remain a flight risk as it is obvious from his filing that he has taken no responsibility for his
prior bad conduct.”4

         A hearing on Father’s petition for modification was conducted in family court on March
29, 2018. In an order entered on April 4, 2018, the court dismissed the petition, finding that,
although Father “demonstrated a possible change of circumstances [i.e., moving from Texas to
West Virginia,] [he] provided no evidence [that] a modification of the current no contact [o]rder
is in the child’s best interest or promotes the child’s best interest.” Further, the family court found
that Father claims to be a resident of West Virginia but “he still maintains a driver’s license in
another state, he listed Texas as his contact address for all of his documentation with the [c]ourt
and otherwise his testimony on his residency was muddled at best.” Although Father testified that
he relocated to West Virginia to be near the child, he also testified that he became homeless
following a 2017 hurricane in Texas, that he lived “in the Tri-State area in a hotel for a couple of
months in late 2017[,]” entered into a six-month lease in West Virginia in 2018, and “does not
know if he will be able to maintain that lease after June 2018.” The court determined that Father
“had not had contact with his son for several years and that he had a right to bring a petition [for


       2
           The Texas case was dismissed in November of 2015. Father explained that he delayed
seeking a modification of the “no contact” order because he was not in a favorable financial
position to do so given the costs associated with traveling to and from West Virginia. Father
testified that he lost his home and all of his belongings, including his vehicle, as a result of a 2017
hurricane.
       3
          Father has full custody of a son by a prior relationship and shared custody of a daughter
who resides in Texas. He has a large extended family, photos of whom he presented to the family
court in support of his argument that the child at issue should be permitted to have a relationship
with them.
       4
          In his petition for modification, Father reiterated his argument that the evidence did not
support a finding that he fled from West Virginia to Texas with the child without Mother’s consent
and that jurisdiction in the Family Court of Cabell County was improper.



                                                  3
modification] at a much earlier date after the dismissal of his Texas case. [Father] cho[se] not to
do so and this passage of time and reintroduction into the child’s life is a significant event that
needs to be taken into consideration.” Finally, the family court found that Father was previously
found to be a “flight risk” and that “[h]e provided no convincing evidence . . . that he was no longer
a flight risk.”5

       Father appealed the family court’s order to the Circuit Court of Cabell County, which
affirmed by order entered on July 17, 2018. This appeal followed.

       We review the circuit court’s 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.

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

        In order to modify the “no contact” provision that is currently in place, Father was required
to show that there was a substantial change in circumstances and that modification is in the best
interest of the child. See Andrea H. v. Jason R.C., 231 W. Va. 313, 318, 745 S.E.2d 204, 209
(2013). In Syllabus Point 3 of Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011), we held
that

               West Virginia Code § 48-9-401(a) (2009)6 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.

(Footnote added). In his first assignment of error, Father argues that the family court erred in
concluding that he failed to produce evidence that a modification of the “no contact” order is in


       5
         The family court also concluded that Father is in contempt for failing to pay the previously
ordered attorney’s fees and ordered that he begin to make regular payments in satisfaction of that
order.
       6
           West Virginia Code § 48-9-401(a) provides as follows:

       Except as provided in section 9-402 [§ 48-9-402] or 9-403 [§ 48-9-403], a court
       shall modify a parenting plan order if it finds, on the basis of facts that were not
       known or have arisen since the entry of the prior order and were not anticipated
       therein, that a substantial change has occurred in the circumstances of the child or
       of one or both parents and a modification is necessary to serve the best interests of
       the child.


                                                  4
the child’s best interests. He contends that the court failed to consider the factors set forth in West
Virginia Code § 48-9-102(a), the “primary objective” of which “is to serve the child’s best interests
. . . .” Id. According to West Virginia Code § 48-9-102(a), such interests are served by facilitating
the following:

       (1) Stability of the child;
       (2) Parental planning and agreement about the child’s custodial arrangements and
       upbringing;
       (3) Continuity of existing parent-child attachments;
       (4) Meaningful contact between a child and each parent;
       (5) Caretaking relationships by adults who love the child, know how to provide for
       the child’s needs, and who place a high priority on doing so;
       (6) Security from exposure to physical or emotional harm; and
       (7)Expeditious, predictable decision-making and avoidance of prolonged
       uncertainty respecting arrangements for the child’s care and control.

Additionally, Father references West Virginia Code § 48-9-102(b), which provides that “[a]
secondary objective of [the] article is to achieve fairness between the parents.”

        The family court found that Father “demonstrated a possible change of circumstances” by
relocating to West Virginia. (Emphasis added). Clearly, however, the court was not entirely
convinced that Father had permanently moved to West Virginia, finding that “his testimony on his
residency was muddled at best” and that “even if [Father] is a resident of . . . West Virginia, this
does not in itself promote or benefit the welfare of the child. It is however a change of
circumstances if, in fact, he now lives in West Virginia.” (Emphasis added). Nonetheless, during
the course of the hearing on the petition for modification, the family court repeatedly instructed
Father that he was required to meet “the higher threshold” of presenting evidence that it is in the
best interest of the child to modify the “no contact” order. Indeed, this Court has repeatedly held
that “‘[i]n a contest involving the custody of an infant the welfare of the child is the polar star by
which the discretion of the court will be guided.’ Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va.
801, 187 S.E.2d 601 (1972).” Syl. Pt. 3, In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015). See
also Syl. Pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996) (“In visitation as well
as custody matters, we have traditionally held paramount the best interests of the child.”); David
M. v. Margaret M., 182 W. Va. 57, 60, 385 S.E.2d 912, 916 (1989) (“The child’s welfare is the
paramount and controlling factor in all custody matters.” (Citations omitted)).

        Though Father now argues that the court failed to consider the “best interest” factors set
forth in West Virginia Code § 48-9-102(a), he fails to point to any evidence of record establishing
that any of the factors were satisfied. To the contrary, the evidence showed that Father’s relocation
to West Virginia was tenuous at best. Indeed, at the very least, the evidence that Father continued
to maintain a driver’s license in Texas, used a Texas address as a contact address for family court
purposes in West Virginia, and was uncertain as to whether he would be able to maintain his
current West Virginia housing after June of 2018, would be counter to favorable findings of
“stability,” W. Va. Code § 48-9-102(a)(1), “[c]ontinuity of existing parent-child attachments[,]”
W. Va. Code § 48-9-102(a)(3), and “[m]eaningful contact between” Father and the child. W. Va.
Code § 48-9-102(a)(4). Based upon the record before us, we thus conclude that the family court

                                                  5
did not abuse its discretion in determining that Father failed to prove that modification of the “no
contact” order is in the best interest of the child.

         Relatedly, Father also argues that the family court erred in finding that the testimony of
Father’s private investigator was not relevant to Father’s request to modify the “no contact” order.
Father argues that the investigator, whom Father hired to determine where Mother was residing,
testified that he surveilled Mother’s residential address of record “over a period of time and
checked the activities of the comings and goings . . . and . . . determined that there was no one
living there.” Father argues that this testimony was relevant “to show the current level of stability
of his son. By demonstrating that [Mother] does not live where she has previously told the [c]ourt
[sic], [Father] showed that his son was currently in a potentially unstable living environment.”
Because “stability of the child” is a factor to consider in determining the “best interests of the
child,” W. Va. Code § 48-9-102(a)(1), Father argues that the investigator’s testimony was relevant
as to whether Father established a change in circumstances sufficient to warrant a modification of
the “no contact” order.

        We find no error. Although Father’s private investigator testified that he believed Mother
did not live at her address of record, Father testified that he had looked into the matter on his own
and knew where she was living. Neither he nor the investigator testified that Mother’s home or the
child’s living conditions were unstable or unsafe. Thus, the family court did not abuse its discretion
in concluding that the private investigator’s testimony was not relevant to whether a modification
of the “no contact” order was warranted. See Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511
S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.”).

         Next, Father argues that the family court’s order denying his petition for modification
effectively terminated his parental rights without affording him due process of law. See Syl. Pt. 1,
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“In the law concerning custody of minor
children, no rule is more firmly established than that the right of a natural parent to the custody of
his or her infant child is paramount to that of any other person; it is a fundamental personal
liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United
States Constitutions.”). He contends that he has never been determined to be an abusive or unfit
parent and that the court erred in failing to impose a less restrictive remedy such as supervised
visitation.

         As previously discussed, any type of modification of the “no contact” order required that
Father establish that there has been a substantial change in circumstances and that modification is
necessary to serve the child’s best interests. See Skidmore, 229 W. Va. at 15, 725 S.E.2d. at 184,
syl. pt. 3. In matters such as the one before us, “the welfare of the child is the polar star by which
the discretion of the court will be guided.” Syl. Pt. 1, in part, Lively, 155 W. Va. at 801, 187 S.E.2d
at 602 (citation omitted). We have concluded that the family court did not abuse its discretion in
determining that, at the time of the March 29, 2018, hearing, Father failed to present evidence
demonstrating that modification would serve the child’s best interests. Under an abuse of
discretion standard, “we will not disturb a . . . court’s decision unless the . . . court makes a clear
error of judgment or exceeds the bound of 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). See State

                                                  6
v. Taylor, 215 W. Va. 74, 83, 593 S.E.2d 645, 654 (2004) (“Under abuse of discretion review, we
do not substitute our judgment for the circuit court’s.”) (Citing Burdette v. Maust Coal & Coke
Corp., 159 W.Va. 335, 342, 222 S.E.2d 293, 297 (1976)).7

        In his next assignment of error, Father argues that, even though he filed a petition for
modification of the “no contact” order, the “no contact” provision in the July 29, 2014, family
court order is, in fact, no longer in effect. He argues that the order provided that “this [c]ourt will
allow [Father] NO contact with the child while the outstanding action in Texas continues . . . .”
According to Father, the “no contact” restriction was only to last as long as the Texas case was
pending, and, once the Texas action was dismissed in 2015, the “no contact” restriction was no
longer in effect and there was no need to modify it.

       Father’s interpretation of the family court’s July 29, 2014, order is seriously flawed. The
order more fully stated as follows:

        This [c]ourt is concerned that there is still an outstanding [c]ourt action in Texas
        which includes in its file an Order for Custody of the child in that state.

        This [c]ourt will allow [Father] NO contact with the child while the outstanding
        action in Texas continues since he is a flight risk with the child.

        That after the resolution of the Texas case, this matter can be set for an evidentiary
        hearing on [p]arenting time for [Father] with [the child].

        Under the plain language of the order, the “no contact” restriction did not automatically
expire upon dismissal of the Texas case nor did the dismissal automatically reinstate the shared
(50/50) parenting agreement or other parenting time. Clearly, under the July 29, 2014, order, once
the Texas case was dismissed, Father was required to request a modification of the “no contact”
order so that a hearing could be conducted “on [p]arenting time for [Father] with [the child].”
Thus, Father proceeded correctly in filing a petition for modification and his assignment of error
that he was not required to do so is without merit.

         Father’s final assignment of error concerns the family court’s finding that Father remains
a “flight risk.” According to its July 29, 2014, order, “[t]his [c]ourt is concerned that there is still
an outstanding [c]ourt action in Texas which includes in its file an Order for Custody of the child
in that state. This [c]ourt will allow [Father] NO contact with the child while the outstanding action


        7
          We are mindful that Father has expended considerable time, effort, and resources in order
to garner parenting time with his child, including relocating from Texas to West Virginia with an
older son despite not having steady employment or a support system of family and friends. He has
not been determined to be an unfit parent and his parental rights have not been terminated. In the
future, should he seek to modify the “no contact” order, he is not foreclosed from doing so, keeping
in mind that he would still be required to establish a substantial change in circumstances and that
modification is necessary to serve the child’s best interests, pursuant to West Virginia Code §§ 48-
9-401(a) and -102(a). See Skidmore, 229 W. Va. at 15, 725 S.E.2d at 184, syl. pt. 3.


                                                   7
in Texas continues since he is a flight risk with the child.” The family court further found that
Father “provided no convincing evidence on today’s date that he was no longer a flight risk.”
Father argues that the finding that he remains a “flight risk” is not based upon any evidence or
argument presented below. Rather, Father argues, the basis for finding that he was a “flight risk”
in the first place no longer exists because Father dismissed the Texas case in 2015. Thus, Father
argues, the family court erred in finding that he continues to be a “flight risk.” We find no error.

         The evidence supports the family court’s finding that Father remains a “flight risk.” Father
testified that he was uncertain whether he would be able to maintain his lease in West Virginia
after June 2018 and admitted that he had not obtained a West Virginia driver’s license and that he
used a Texas address as a contact address for family court purposes. Further, in his petition for
modification and his pleadings filed with this Court, Father repeatedly denies that he fled to Texas
with the child without Mother’s consent. Given these facts, we do not find that the family court
abused its discretion in finding that Father remains a “flight risk.”

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: September 9, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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