                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                   FILED
In re The Child of
                                                                                June 17, 2019
                                                                              EDYTHE NASH GAISER, CLERK
Jeremiah W.,                                                                  SUPREME COURT OF APPEALS
Petitioner Below, Petitioner                                                      OF WEST VIRGINIA



vs) No. 17-1139 (Wood County 17-D-63)

Chandra O.,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Jeremiah W.,1 pro se, appeals the November 16, 2017, order of the Circuit Court
of Wood County denying his appeal from a September 22, 2017, order of the Family Court of
Wood County that allocated parenting time between the parties with regard to their minor child.
Respondent Chandra O., pro se, filed a response. The minor child’s guardian ad litem, Attorney
Robin S. Bonovitch, filed a response. Petitioner filed a separate reply to each response.

        The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the family court is affirmed, in part, and
reversed, in part, and this case is remanded to the family court with directions to strike the
provision from its September 22, 2017, order, which allocated parenting time to respondent for the
holidays of Hanukkah and Kwanzaa as the record reflects that neither parent celebrates those
holidays.

        The parties were never married, but have a six-year-old child together. Their case
originated in Washington County, Ohio. In 2013, the Washington County Common Pleas Court

       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
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designated respondent as the primary residential parent and awarded petitioner standard visitation
with the child in accordance with Ohio law. However, the parties’ case was subsequently
transferred to Wood County, West Virginia, as respondent and the child now reside there. On
February 10, 2017, petitioner filed a petition in the Wood County Family Court (“family court”)
seeking allocation of parenting time between the parties. By temporary order entered April 18,
2017, the family court found that respondent “shall remain the primary residential custodial parent
of the child.” The family court allocated petitioner parenting time with the child from 5:00 p.m. to
9:00 p.m. every Wednesday and from 5:00 p.m. on Friday to 5:00 p.m. on Sunday every other
weekend. During the school year, the family court ruled that petitioner’s Wednesday parenting
time shall continue overnight with the child “return[ing] to the care of [respondent] on Thursday
morning” and that, on those Mondays when there is no school, petitioner’s weekend parenting
time shall continue through Monday at 5:00 p.m. The family court awarded petitioner phone
contact with the child on Mondays between the hours of 7:00 p.m. through 8:00 p.m. Finally, the
family court appointed Attorney Robin S. Bonovitch as the child’s guardian ad litem (“GAL”).

        The family court held a status hearing on June 9, 2017. The family court found that the
parties needed to agree on which elementary school the child would attend for kindergarten during
the 2017-2018 school and set the parties’ case for a final hearing on August 7, 2017. At the
beginning of the August 7, 2017, final hearing,2 the GAL reported that the elementary school issue
had been resolved with respondent’s enrollment of the child at an appropriate school. Thereafter,
petitioner asked for parenting time to be evenly divided between the parties. The family court
denied petitioner’s request, finding that no factual basis existed for such a ruling given that there
was no past history of petitioner exercising equal parenting time. On the other hand, the family
court found that respondent could not place limitations on petitioner’s parenting time and denied
respondent’s requests to be petitioner’s “first choice” for daycare when he has to work during his
parenting time and to prohibit petitioner from having his girlfriend supervise the parties’ child
when he is unavailable. The family court found that there was no evidentiary basis for it to prohibit
petitioner’s girlfriend from supervising the parties’ child. The family court informed respondent
that she could re-raise the issue if new evidence was revealed. At that point, the GAL confirmed
to the family court that she investigated and found that the parties’ mutual allegations of domestic
violence in each other’s household to be unsubstantiated. The GAL further confirmed that the
parties were “decent people,” but that each was unable to cooperate with the other.

         The family court then considered both parties’ proposed parenting plans, but adopted
respondent’s parenting plan for the school year as modified by the court. Respondent proposed
that petitioner have parenting time with the child on Tuesdays and Thursdays from 5:00 p.m. to
8:00 p.m. Petitioner countered that he should be allowed to continue with Wednesday overnight
visitation because it gave him more time with the child. The family court agreed with petitioner,
finding that he may take the child to school Thursday mornings. However, the family court denied
petitioner’s request to extend his weekend visitation overnight into Monday mornings based on
respondent’s objection to the same. Regarding summer break, the family court adopted petitioner’s
proposal that each party have parenting time with the child one week at a time, beginning at 6:00
p.m. on Sunday and ending at 6:00 p.m. on the following Sunday. During one parent’s week, the

       2
           The video recording of the August 7, 2017, final hearing has been reviewed.
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family court found that the other parent has the Wednesday overnight visitation except for one
“vacation week” designated by each parent when there would be no Wednesday overnight
visitation.

        Regarding holidays, each party wanted to take the child trick-or-treating for Halloween,
but respondent stated that it was her favorite holiday. Accordingly, the family court allocated
parenting time to respondent on Halloween every year, finding that trick-or-treating occurs at
various times and at various locations around Halloween. The family court found that petitioner
could take the child trick-or-treating during his regular parenting time. Petitioner then raised the
issue of the Fourth of July, stating that he would like to return the child to respondent at a later
time because he wanted to take the child to see fireworks. Respondent responded that she put 8:00
p.m. as the end time for holiday visitation because that was the time suggested by petitioner.
Petitioner conceded that he suggested 8:00 p.m., but stated that there should be an exception for
Fourth of July fireworks. The family court ruled that 8:00 p.m. was the end time for the Fourth of
July holiday, finding that fireworks were held at the various times throughout the year and for
various events and that petitioner could take the child to see fireworks on one of those occasions.
Regarding the Christmas holiday, petitioner requested that the family court divide the entire
December break from school between the parties. The family court denied petitioner’s request,
dividing only Christmas Eve and Christmas Day between the parties based on alternating even and
odd years. The family court found that dividing the entire Christmas break in addition to Christmas
Eve and Christmas Day would lead to frequent transfers between potentially bickering parents and
it was not going to subject the child to such acrimony. Therefore, the family court generally
adopted respondent’s parenting plan with regard to holidays, but found that petitioner’s proposed
holiday schedule was “pretty close to [respondent’s].”

        The family court memorialized its rulings from the August 7, 2017, final hearing in an
order entered September 22, 2017. In its order, the family court did not note the parties’ rejected
requests regarding the allocation of parenting time or respondent’s rejected requests to restrict
petitioner’s authority to choose daycare and to allow his girlfriend to supervise the parties’ child
during his parenting time. Rather, the family court set forth the parenting time schedule as
fashioned at the final hearing. The family court found that “all other provisions and orders not
modified herein shall remain in effect[.]” Among those “other provisions” were the family court’s
designation of respondent as the primary residential parent and petitioner’s phone contact with the
parties’ child on Mondays between the hours of 7:00 p.m. through 8:00 p.m. as previously set forth
in the April 18, 2017, temporary order. Problematically, in its September 22, 2017, order, the
family court also allocated respondent parenting time for Hanukkah and Kwanzaa despite the fact
that those holidays were never discussed at the final hearing and the record reflects that neither
parent celebrates them.

        Petitioner appealed the family court’s September 22, 2017, order to the Wood County
Circuit Court (“circuit court”). Petitioner argued that the family court failed to consider his
proposed parenting plan and erred in its allocation of parenting time between the parties. By order
entered November 16, 2017, the circuit court denied petitioner’s appeal, finding that the family
court “considered the proposed parenting plans submitted by the parties” and that “the parenting
plan adopted by the [f]amily [c]ourt was not an abuse of discretion[,] but was reasonable and fair
                                                 3
in its allocation of parenting time and custodial responsibility and consistent with the child’s best
interests.”

      Petitioner now appeals the circuit court’s denial of his appeal from the family court’s
September 22, 2017, order allocating parenting time between the parties with regard to their child.
We review this matter 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).

        On appeal, petitioner raises a multitude of objections to the family court’s final order as
assignments of error. Respondent and the GAL counter that petitioner’s assignments of error are
without merit. We note that petitioner’s many arguments amount to a request that we reweigh the
evidence before the family court. However, “[a]n appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.” State v.
Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). Based on our review of the
appellate record, including the video recording of the August 7, 2017, final hearing, we find that
the evidence and testimony was such that the family court was free to allocate parenting time
between the parties as it did in its September 22, 2017, order, except for the allocation of parenting
time to respondent for Hanukkah and Kwanzaa. We find that no evidence suggests that either
parent celebrates those holidays and that the family court allocated respondent parenting time for
Hanukkah and Kwanzaa despite the fact that neither holiday was raised at the final hearing.
Because there is no support in the record for allocating respondent parenting time for Hanukkah
and Kwanzaa, we find that the family court abused its discretion in doing so. While inclusion of
those holidays in the September 22, 2017, order, may have been inadvertent, given the acrimony
existing between the parties, we find it proper to reverse the circuit court’s denial of petitioner’s
appeal from the family court’s September 22, 2017, order and remand this case to the family court
with directions that the court strike this provision from its order.

       We also address two assignments of error that are based on statutory law. Petitioner first
argues that the family court should have reduced respondent’s parenting time pursuant to West
Virginia Code § 48-9-209(a)(4) because she persistently interferes with the exercise of his
parenting time. West Virginia Code § 48-9-209(b) provides, in pertinent part, that “[i]f a parent is
found to have engaged in any activity specified by subsection (a) of this section, the court shall
impose limits that are reasonably calculated to protect the child or child’s parent from harm.”3

       3
        While West Virginia Code § 48-9-209 also permits the restriction of parenting time based
on credible information that a parent has committed domestic violence, as noted supra, the GAL
investigated and found that the parties’ mutual allegations of domestic violence in each other’s
household to be unsubstantiated.
                                                  4
Upon review of the record, we find that petitioner’s reliance on West Virginia Code § 48-9-209 is
misplaced. As reported by the GAL at the final hearing, each of the parties experiences difficulty
in cooperating with the other. While such uncooperativeness disadvantages the child, we find that
neither party’s actions warrant the application of West Virginia Code § 48-9-209 given the GAL’s
report that the parties were “decent people” despite the fact that they cannot cooperate with each
other.

        Second, petitioner argues that the family court failed to set forth a complete parenting plan
in its September 22, 2017, order as required by West Virginia Code § 48-9-205. In Skidmore v.
Rogers, 229 W.Va. 13, 19, 725 S.E.2d 182, 188 (2011), we found that “[p]ursuant to West Virginia
Code § 48-9-205, [parenting] plans must establish the child’s living arrangements, designate each
parent’s custodial responsibility, create a visitation schedule for the other parent[,] and allocate
decision-making responsibility between the parents.” Here, the family court noted that “all other
provisions and orders not modified herein shall remain in effect.” Based on a review of the record,
we find that, when viewed as a whole, the family court’s rulings in the April 18, 2017, temporary
order, its rulings at the August 7, 2017, final hearing, and its rulings in its September 22, 2017,
order satisfied West Virginia Code § 48-9-205 by establishing the child’s living arrangements,
designating each parent’s custodial responsibility, creating a visitation schedule for the other
parent, and allocating decision-making responsibility between the parents. In addition, except for
the erroneous allocation of parenting time to respondent for Hanukkah and Kwanzaa, we concur
in the circuit court’s finding that the family court’s parenting plan was “reasonable and fair . . .
and consistent with the child’s best interests.” See Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996) (holding “[a]lthough parents have substantial rights that must be protected, the
primary goal in cases involving . . . family law matters . . . must be the health and welfare of the
children”); Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (finding
that “the best interests of the child is the polar star by which decisions must be made which affect
children”).

        As explained supra, the erroneous allocation of parenting time to respondent for Hanukkah
and Kwanzaa necessitates a remand for the limited purpose of striking that provision from the
family court’s September 22, 2017, order. For the foregoing reasons, we reverse the circuit court’s
November 16, 2017, order denying petitioner’s appeal and affirm, in part, and reverse, in part, the
family court’s September 22, 2017, order. We reverse the family court’s September 22, 2017, order
only with regard to that provision allocating parenting time to respondent for the holidays of
Hanukkah and Kwanzaa and remand this case to the family court with directions that the court
strike the provision from its order as the record reflects that neither parent celebrates those
holidays.


                                                               Affirmed, in part, Reversed, in part,
                                                               and Remanded with Directions.


ISSUED: June 17, 2019

                                                 5
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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