                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


John L.,                                                                            FILED
Petitioner/Appellant Below, Petitioner                                            April 9, 2018
                                                                               EDYTHE NASH GAISER, CLERK
vs.) No. 17-0354 (Monongalia County 12-D-456)                                  SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Laura W., 

Respondent/Appellee Below, Respondent 



                              MEMORANDUM DECISION
        Petitioner John L., by counsel Daniel R. Grindo, appeals the Circuit Court of Monongalia
County’s March 1, 2017, order affirming the family court’s final order.1 Respondent Laura W.
did not file a response. On appeal, petitioner argues that the circuit court erred in concluding that
certain rules do not apply to pro se litigants, denying his petition to modify, and allowing
respondent to present evidence not previously disclosed.

       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.

        On June 5, 2013, the parties were divorced and the family court entered a parenting plan
governing their two children. Respondent was designated as the parent with primary custodial
responsibility and petitioner, who lives in Texas, was given custodial responsibility every school
spring break, Thanksgiving break, a portion of the school Christmas break, and for seven
continuous weeks each summer. Subsequent to the entry of this order, petitioner filed a petition
to modify and petition for contempt. Petitioner sought modification of the parenting plan so that
he would be designated the primary custodial parent. Petitioner also sought to have respondent
held in contempt for relocating to North Carolina without providing advance notice and in
violation of the family court’s prohibition pending resolution of the petition for modification.
Petitioner also sought to have respondent held in contempt for her failure to arrange counseling
for their children, as required by prior court order.

       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).


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         Finding that the proposed modification was not in the children’s best interests, the family
court denied petitioner’s petition to modify the parties’ parenting plan. In reaching this
conclusion, the family court noted that, when the parties were together, respondent was a stay-at-
home mother and the children’s primary caretaker. Further, the children had remained in
respondent’s primary care since the parties’ separation, except for a five-month period in 2015.2
Although the family court noted that the children, who were ten years old and twelve years old,
were not of an age where their wishes were controlling, it nonetheless noted that they expressed
their desire to remain in respondent’s primary care, and these wishes have remained consistent
since the filing of the divorce petition in 2012. Moreover, the guardian ad litem recommended
that it was in the children’s best interests to remain in respondent’s primary care.

       Nonetheless, the family court also found that respondent had “almost no credibility[.]”
The family court acknowledged that respondent mischaracterized her relationship with a young
man, with whom she became romantically involved when he was only sixteen years old.
Respondent denied a continuing relationship with him, but, in fact, married him in the summer of
2016. Respondent also informed the family court that she had no intention of moving to North
Carolina to live with the young man prior to a final ruling; however, respondent “almost
immediately” moved to North Carolina with the children to live with him.

        The family court further found that respondent had ignored the court’s orders regarding
counseling for the children on multiple occasions. Although respondent testified that she had
begun counseling for the children in North Carolina, she produced no substantiating evidence.
Thus, the family court found that respondent had been in contempt of the court’s orders at
different times in the past “without question.” The question before the family court became, “not
whether [respondent] deserves to be sanctioned – she does – but rather what sanction might be
appropriate.” Ultimately, the family court determined that modifying the parties’ parenting plan
to name petitioner the primary custodial parent would not “improve the children’s lives, and
indeed the [c]ourt is inclined to believe the children would suffer somewhat were they to be
placed in the primary care of [petitioner].”3 Conversely, the children were reportedly doing well
in school while in respondent’s care, described a positive relationship with respondent’s family,
and appeared healthy. Despite having reservations about each parent and their home environment
and finding that respondent was in contempt, the family court ultimately concluded that the
children’s best interests would not be served by a modification of the parenting plan. As a
sanction for respondent’s contempt, the family court awarded petitioner $600 for his “cost and
trouble in seeking to enforce the orders.” The family court memorialized these findings and
conclusions in its December 29, 2016, “Modification and Contempt Order.”



       2
         During this five-month period, the children resided with petitioner in Texas. While with
petitioner, the children were exposed to intense arguing and volatility between petitioner and his
new wife. The children reported being scared at times. Although criminal charges were not filed,
the police became involved following several of these arguments.
       3
        This finding was based on the events that transpired during the five-month period the
children lived with petitioner.
                                                 2

         Petitioner appealed this order to the circuit court. Petitioner raised three assignments of
error: first, the lower court erred in refusing to modify the parenting plan in light of respondent’s
continued contempt, interference with petitioner’s access to the children, relocation in violation
of West Virginia Code § 48-9-403, perjury, and refusal to provide the children with court-
ordered counseling. Second, the lower court erred in taking the children’s testimony in violation
of the procedures set forth in Rule 17 of the Rules of Practice and Procedure for Family Court
and Rule 8(b) of the Rules of Practice and Procedure for Child Abuse and Neglect Proceedings.
Third, the lower court erred in permitting respondent to testify and offer evidence after failing to
participate in discovery.

        The circuit court affirmed the family court’s December 29, 2016, order. The circuit court
found that respondent’s relocation did not warrant modification of the parenting plan because the
relocation did not impair petitioner’s ability to exercise his custodial responsibilities.4 The circuit
court also found that the move did not amount to a change in circumstances warranting
modification because the change does not negatively impact the proportionality of his custodial
responsibilities. Further, the children’s best interests continue to be best served by remaining in
respondent’s primary custodial care.

        With respect to respondent’s failure to consistently enroll the children in court-ordered
counseling, the circuit court concluded that respondent has not so neglected their mental health
so as to warrant terminating her primary custody. The circuit court noted no “present refusal,
failure or inability” to provide the children with counseling. Thus, it found that the children were
not being neglected under West Virginia Code. Even if they were, a proper “limit” would be to
admonish respondent.

        In addressing petitioner’s second assignment of error concerning the children’s
testimony, the circuit court found that the family court complied with the relevant rules. The
circuit court noted that both parties appeared pro se before the family court, and pro se litigants
are not entitled to be present during the interview or review the children’s testimony.

        Lastly, the circuit court found petitioner’s argument that respondent could not testify on
her own behalf before the family court “patently absurd[:] . . . . Essentially, [petitioner] asserts
that his due process rights were violated because [respondent] was afforded hers.” Thus, it found
no abuse of discretion in the family court’s allowing respondent to testify. These rulings were
memorialized in an order entered on March 1, 2017, and it is from this order that petitioner
appeals.

       We have previously held that

               [i]n 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


       4
        Petitioner lives in Granbury, Texas. According to the circuit court, petitioner’s home
was 1,274.5 miles from the children’s home in West Virginia, whereas he is now 1,309 miles
from the children’s North Carolina residence.
                                                  3

       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, 475, 607 S.E.2d 803, 804 (2004).

        Petitioner’s first argument on appeal is that the circuit court erred in finding that Rule
17(a) of the Rules of Practice and Procedure for Family Court and Rule 8(b) of the Rules of
Procedure for Abuse and Neglect do not apply to pro se litigants. Rule 17(a) of the Rules of
Practice and Procedure for Family Court provides that “Rules 8 and 9 of the Rules of Procedure
for Child Abuse and Neglect Proceedings shall govern the taking of testimony of children.” Rule
8(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings, in turn, provides that

       [t]he court may conduct in camera interviews of a minor child, outside the
       presence of the parent(s). The parties’ attorneys shall be allowed to attend such
       interviews, except when the court determines that the presence of attorneys will
       be especially intimidating to the child witness. When attorneys are not allowed to
       be present for in camera interviews of a child, the court shall, unless otherwise
       agreed by the parties, have the interview electronically or stenographically
       recorded and make the recording available to the attorneys before the evidentiary
       hearing resumes. Under exceptional circumstances, the court may elect not to
       make the recording available to the attorneys but must place the basis for a
       finding of exceptional circumstances on the record. Under these exceptional
       circumstances, the recording only will be available for review by the Supreme
       Court of Appeals. When attorneys are present for an in camera interview of a
       child, the court may, before the interview, require the attorneys to submit
       questions for the court to ask the child witness rather than allow the attorneys to
       question the child directly, and the court may require the attorney to sit in an
       unobtrusive manner during the in camera interview. Whether or not the parties’
       attorneys are permitted to attend the in camera interview, they may submit
       interview questions and/or topics for consideration by the court.

Petitioner argues that references to the word “attorney” in these rules do not preclude the rules’
application to pro se litigants, and he further argues that he should have been provided with a
recording of his children’s testimony.

        Petitioner offers no law or analysis to support his contention that the lower court’s failure
to provide him with a recording of his children’s testimony amounts to reversible error or would
result in him being awarded primary custody. The Rule allows a court not to make the recording
available in exceptional circumstances. Although the lower courts did not articulate any
exceptional circumstances, we nevertheless find no merit to petitioner’s argument that such
failure results in him being awarded primary custody. To begin, we note that the children’s
testimony did not form the primary basis for denying petitioner’s modification request. The
family court acknowledged that, due to their children’s age, their wishes were not controlling and
did not accord those wishes undue weight. Rather, the lower courts gave paramount
consideration to the children’s best interests. In reaching the conclusion that the children’s best
interests were served by leaving respondent as the primary custodian, the lower courts noted that,

                                                 4

prior to the parties’ separation, she was a stay-at-home mom and the primary caretaker. Except
for a five-month period in 2015 that was not a positive experience for the children, they have
remained in respondent’s custody. The lower courts noted that the children do well in school,
appear healthy, and “appear to be doing well in respondent’s home” and with respondent’s
family. Moreover, the lower courts noted that the guardian ad litem recommended that
respondent be awarded primary custody on two separate occasions. Finally, the lower courts
found that, due to the volatile situation reported in petitioner’s home, the children may suffer if
placed in his primary custody. “In . . . custody matters, we have traditionally held paramount the
best interests of the child.” Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996);
State, ex rel. W.Va. Dep’t of Health & Human Res. v. Ruckman, 223 W.Va. 368, 674 S.E.2d 229
(2009) (“The best interests of the child remains the overarching consideration of courts in
making custody decisions[.]”). Because the lower courts found that the children’s best interests
would be served by remaining in respondent’s primary custody, we find no merit to petitioner’s
argument that any violation of Rule 8 results in him being awarded custody.

        Petitioner’s second assignment of error is that the lower courts erred in not granting his
petition to modify the parties’ parenting plan. Petitioner submits that respondent’s relocation
constitutes a material change in circumstances and highlights that it was hidden from the court
and, therefore, not in good faith. Petitioner also contends that the lower courts “failed to
recognize the existence of a limiting factor;” namely, that respondent’s refusal to comply with
the lower courts’ counseling orders renders the children “neglected” as defined in West Virginia
Code § 49-1-201.

       West Virginia Code § 48-9-401 provides that

               (a) Except as provided in section 9-402 or 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.

               (b) In exceptional circumstances, a court may modify a parenting plan if it
       finds that the plan is not working as contemplated and in some specific way is
       manifestly harmful to the child, even if a substantial change of circumstances has
       not occurred.

               (c) Unless the parents have agreed otherwise, the following circumstances
       do not justify a significant modification of a parenting plan except where harm to
       the child is shown:

                      (1) Circumstances resulting in an involuntary loss of income, by
                          loss of employment or otherwise, affecting the parent’s
                          economic status;

                      (2) A parent’s remarriage or cohabitation; and



                                                5

                       (3) Choice of reasonable caretaking arrangements for the child by
                           a legal parent, including the child’s placement in day care.

               (d) For purposes of subsection (a) of this section, the occurrence or
       worsening of a limiting factor, as defined in subsection (a), section 9-209, after a
       parenting plan has been ordered by the court, constitutes a substantial change of
       circumstances and measures shall be ordered pursuant to section 9-209 to protect
       the child or the child’s parent.

        West Virginia Code § 48-9-403, however, specifically provides that “[t]he relocation of a
parent constitutes a substantial change in the circumstances under subsection 9-401(a) of the
child only when it significantly impairs either parent’s ability to exercise responsibilities that the
parent has been exercising.” (Emphasis added). Given that petitioner lives in Texas, the
parenting plan was already tailored to accommodate the same approximate distance between the
parties. Petitioner does not allege that respondent’s relocation impairs his ability to exercise the
responsibilities he has been exercising. Accordingly, we find that respondent’s relocation does
not constitute a substantial change in circumstances here.

        Petitioner further argues that because respondent failed to provide advance notice of the
relocation, it was not in good faith and warrants modification of the parenting plan. Failure to
comply with the notice requirements “may be a factor in the determination of whether the
relocation is in good faith under subsection (d) of this section and is a basis for an award of
reasonable expenses and reasonable attorney’s fees to another parent that are attributable to such
failure.” Id. at § 48-9-403(b)(5). Where a court determines that a relocation was not made in
good faith, “the court may modify the parenting plan in accordance with the child’s best interests
and the effects of the relocation on the child.” Id. at § 48-9-403(d)(3). Therefore, the controlling
factor here is the children’s best interests. As outlined above, modification is not in the children’s
best interests, and we find no error in the circuit court’s refusal to modify the parenting plan even
if respondent’s relocation was not made in good faith.

        Petitioner’s final argument concerning modification is that respondent’s failure to provide
the children with court-ordered counseling renders them neglected children and warrants
modification. As quoted above, West Virginia Code § 48-9-401(d) provides, in sum, that the
occurrence of a “limiting factor” constitutes a substantial change of circumstances “and measures
shall be ordered pursuant to section 9-209 to protect the child[.]” West Virginia Code § 48-9-
209(a) specifies that a parent who has “abused, neglected or abandoned a child” constitutes a
limiting factor. A “neglected child” is one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child’s parent, guardian or custodian to supply the child
       with necessary food, clothing, shelter, supervision, medical care or education,
       when that refusal, failure or inability is not due primarily to a lack of financial
       means on the part of the parent, guardian or custodian[.]

Id. at § 49-1-201. If a party is found to have engaged in a limiting factor, “the court shall impose
limits that are reasonably calculated to protect the child . . . from harm.” Id. at § 48-9-209(b).

                                                  6

Although respondent previously failed to comply with the family court’s order of counseling for
the children, she testified that she was actively seeking to enroll the children in consistent
counseling at their new home in North Carolina. In other words, no “present refusal, failure or
inability” to provide the children with the court-ordered counseling has been established. Even
assuming that petitioner had established that the children were neglected, modification is not
necessarily warranted. Instead, a court must “impose limits that are reasonably calculated to
protect the child[.]” Id. We find no error in the circuit court’s conclusion that modification would
not be a proper limitation due to the finding that the children’s best interests continue to be
served by remaining in respondent’s primary custody.

        Petitioner’s final assignment of error is that the family court erred in allowing respondent
to present evidence at the final hearing due to her purported failure to respond to discovery
concerning her living arrangements and relationships or comply with the scheduling order.
Petitioner contends that he was denied due process as a result of this error. Petitioner, however,
fails to identify any specific evidence introduced by respondent that he was prejudiced by or
unable to counter. In advance of the final hearing on petitioner’s petition for modification, the
family court entered a scheduling order providing that each party was to serve the other with a
financial statement. The scheduling order provided for no other discovery. Although the parties
were directed to submit pretrial memoranda, the scheduling order provided that a failure to do so
“may result in sanctions, including a finding the party has defaulted on all contested issues, and
the imposition of the other party’s costs[.]” (Emphasis added). Not only does the scheduling
order fail to support petitioner’s argument that the family court had a mandatory duty to exclude
respondent’s testimony, but petitioner also fails to cite any law supporting his position or his
claim that he was denied due process. Therefore, we find no error in the family court’s
permitting respondent to testify at the final hearing.

        For the foregoing reasons, the circuit court’s March 1, 2017, order affirming the family
court’s order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 9, 2018

CONCURRED IN BY:

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




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