        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                January 2013 Term
                                                               FILED
                                                            June 5, 2013
                                                            released at 3:00 p.m.
                                    No. 12-0435             RORY L. PERRY II, CLERK
                                                          SUPREME COURT OF APPEALS
                                                              OF WEST VIRGINIA




                                ANDREA H.,
                          Respondent Below, Petitioner


                                        V.


                                  JASON R. C.,
                          Petitioner Below, Respondent




                Appeal from the Circuit Court of Jefferson County
                       Honorable David H. Sanders, Judge
                           Civil Action No. 10-FS-58

                        REVERSED AND REMANDED



                              Submitted: May 15, 2013
                                 Filed: June 5, 2013


Cinda L. Scales                                   Joanna L.S Robinson
Martinsburg, West Virginia                        Trump & Trump, LC
Attorney for the Petitioner                       Martinsburg, West Virginia
                                                  Attorney for the Respondent

The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT



              1.       “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).



              2.     “West Virginia Code § 48-9-401(a) (2009) 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.” Syllabus point 3, Skidmore

v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011).



              3.        “To justify a change of child custody, in addition to a change in

circumstances of the parties, it must be shown that such change would materially promote

the welfare of the child.” Syllabus point 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669

(1977).




Per Curiam:

                                              1
              The respondent below and petitioner herein, Andrea H.1 (hereinafter “mother”),

appeals from an order entered March 1, 2012, by the Circuit Court of Jefferson County. By

that order, the circuit court denied the mother’s petition for appeal and upheld the family

court’s November 22, 2011, order, which modified primary custody of the children. The

mother argues that she is a fit primary caretaker; thus, she contends that the lower courts

erred in modifying the parties’ prior custodial arrangement and awarding primary custody

to the petitioner below and respondent herein, Jason R. C. (hereinafter “father”). Based on

the parties’ briefs,2 the appendix record designated for our consideration, and the pertinent

authorities, we reverse the rulings made by the lower courts and remand this case for entry

of an appropriate order.



                                              I.

                     FACTUAL AND PROCEDURAL HISTORY

              At the heart of this case is the custodial allocation of the parties’ two minor

children: T.C., a son, and M.C., a daughter.3 The children were ten and six years of age,

respectively, at the time of the lower court proceedings. Until 2007, the siblings lived with

              1
               “We follow our past practice in juvenile and domestic relations cases which
involve sensitive facts and do not utilize the last names of the parties.” State ex rel. W. Va.
Dep’t of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
(1987) (citations omitted).
              2
               The case was not argued orally before this Court. Rather, it was submitted on
briefs, along with portions of the underlying record that were designated for our review.
              3
               T.C. was born in 2001; and M.C.’s date of birth is in 2005.

                                              2
their mother and father in the State of Colorado.4 At that time, the mother and father

divorced and the mother was awarded primary custody of the minor children subject to

visitation by the father. Both parties testified that they had deviated from the Colorado

visitation schedule to allow the father to have additional time with the children.



              In December 2009, the father moved to the State of Virginia and worked in the

Washington, D.C., area as a member of the Armed Forces. The children remained with their

mother in Colorado. Thereafter, in June 2010, the mother moved with the children to

Jefferson County, West Virginia. The family court found that the mother’s relocation was

“for the primary purpose of having the children have more contact with [their

father]. . . . [The mother] desired that the children have a more meaningful relationship with

[their father] than they would have been able to experience if they had continued to reside

across the country from him in Colorado.”5



              4
             From the record, it appears that, even when the family lived together, there
were times when the father was away from home for extended periods of time due to his
work.
              5
               The family court pointed out that this is the most difficult case it has had
occasion to review. The lower court commented that the father’s behavior was arrogant and
self-centered. While juxtaposing the father’s attitude with the mother’s concern for her
children, as evidenced by the fact that she moved across the country to allow the father to
have additional involvement in his children’s lives, the family court also acknowledged that
the relationship between the mother and T.C. was strained, resulting in T.C. receiving
counseling for his anger issues. However, the record reveals that some of the son’s anger
towards the mother may have been due to the father’s comments to the son suggesting that
the mother was to blame for the son’s inability to play local sports.

                                              3
              While the mother was securing new employment and a residence, she allowed

the children to remain with their father6 from the end of May until mid-August 2010. When

the mother finished the transition of relocating her home and employment to West Virginia,

she planned to retrieve the children from their father. Preemptively, on August 5, 2010, the

father filed an Emergency Motion to Modify Custody in Virginia, which was dismissed for

lack of jurisdiction. Subsequent thereto, the father filed the current action in West Virginia

as a Motion for Modification and Expedited Hearing. The parties have agreed that

jurisdiction is proper in West Virginia.



              On May 5, 2011, the family court entered an order appointing a psychologist,

Dr. Krieg, to perform a custody evaluation. The minor son already had been seeing a

counselor, Dr. Shade, and both experts offered their opinions at the hearing held August 24,

2011, before the family court. The experts both declared that it is in the children’s best

interests for the father to have primary custodial responsibility even though they admitted

that both parties are fit parents.   Both experts’ opinions were based, in part, on T.C.’s




              6
                The father had remarried and was living with his new wife and her teenaged
daughter. The stepmother does not work outside of the home and provides much of the
childcare for the minor children when they are under their father’s care. There is no dispute
that the children have an excellent relationship with their stepmother. Conversely, the
mother works during the weekdays, which requires that the children receive short periods of
childcare before school and for approximately one hour after school.

                                              4
preference to live with his father.7 The expert witnesses testified that the son believes it is

in his best interests to have the lifestyle that can be provided in the father’s home, and that,

as a single parent, his mother cannot provide the structure that he desires. The lower court

found that the children view life with their mother as “stressful and chaotic” and life with

their father as “more predictable.” Six-year-old, M.C., met with Dr. Krieg, and she also

expressed a desire to reside with her father, though her request appears to have been

motivated by the fact that she wanted to live with her older brother.



              According to the lower court order, both Dr. Krieg and Dr. Shade stated that

“life was more predictable for the children in the home of the [father] because he has a wife

present to take care of the children.” To that end, the family court recognized in its order that

“Dr. Krieg said that he would not recommend the change of custody to have the children

reside primarily with the [father] if it were not for the step-mother being home to care for the

children[,]” and that “the step-mother is responsible for providing for the needs of the

family.” Conversely, the family court found that the mother “is a single parent and must

stretch her activities to include covering her work schedule, home activities, the children’s

activities, school, homework, house cleaning, cooking, etc.” While the family court found

that it “is unfair to punish the [mother] for being a working parent and not being able to

provide the luxury of home cooked meals[,]” it also found that the father was not faced with


              7
               T.C. was ten years old at the time. However, all parties conceded that he was
mature for his young age.

                                               5
similar time constraints because his new wife stayed home and took care of the chores for

him.



              Based on its determination that both children made mature preferences to live

with their father, the family court entered its Final Custodial Allocation Order on November

22, 2011, awarding primary custodial responsibility to the father, with the mother being

awarded visitation. During the school year, the mother would have two out of three

weekends per month, with additional visitation every Wednesday evening. The children

were ordered to reside with the mother during the summer, with the father exercising

alternating weekends and Wednesday evening visits.



              The mother appealed the family court’s order to the Circuit Court of Jefferson

County to challenge the legal conclusions and applications made by the family court

regarding custodial allocation. The factual findings were not challenged. While recognizing

the mother’s argument that the family court never made a finding of a substantial change in

circumstances that would warrant a modification, the circuit court found that the failure by

the family court to make such a finding was not fatal because the reasons for the family

court’s findings were implicit in its order. However, the circuit court agreed with the mother

that “the record contains evidence of a number of factors which suggest that the child[ren]’s

welfare will not be significantly improved by a change in custody.” Specifically, the circuit

court pointed out that the father was self-centered; meanwhile, “the mother has sacrificed a

                                              6
lot by moving from Colorado to facilitate meaningful visitation with the father and acting in

the best interests of the children[.]” The circuit court also found it troubling that the lower

court improperly heard testimony regarding the stepmother’s ability to provide childcare

versus the outside childcare that the mother had to use so that she could work outside of the

home. Despite these concerns, the circuit court determined that the family court considered

the relevant factors and, further, that it did not abuse its discretion. The Order Denying the

Petition for Appeal was entered by the circuit court on March 1, 2012. This appeal followed.



                                               II.

                                 STANDARD OF REVIEW

               Generally,

                      [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 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). Specific to the custody

issues before this Court, in considering the proper placement for children, we are reminded

that “[q]uestions relating to . . . 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., in part, Nichols v. Nichols, 160

W. Va. 514, 236 S.E.2d 36 (1977). Further, “[i]n . . . custody matters, we have traditionally


                                                7
held paramount the best interests of the child.” Syl. pt. 5, in part, Carter v. Carter, 196

W. Va. 239, 470 S.E.2d 193 (1996). Mindful of these principles, we will consider the

substantive issues raised herein.



                                             III.

                                       DISCUSSION

              On appeal to this Court, the mother asserts three assignments of error: (1) the

lower court erred in modifying custody based, in large part, on the fact that the father’s new

wife is a stay-at-home mom who could provide childcare; (2) the lower court erred in

considering the preferences of the two young children, aged ten and six; and (3) the lower

court erred in modifying custody against the best interests of the children. Generally, the

mother asserts that the father failed to meet his burden to show a change in circumstances

warranting modification of custody. Further, as argued by the mother, there was no showing

that the custody change would materially benefit the children. In response, the father

contends that the lower courts properly recognized a substantial change in circumstances,

primarily the expressed preferences of the parties’ children and the mother’s relocation from

Colorado to West Virginia. Moreover, the father states that the lower courts properly

decided that a modification of custodial allocation would promote the best interests of the

parties’ children.



              In reviewing the underlying courts’ decisions that child custody should be

                                              8
modified, we are mindful that a parenting plan order may only be modified under certain

circumstances, which are set forth in W. Va. Code §§ 48-9-401 (2001) through 404 (2001).

While no specific code section is delineated by the parties, the court documents, including

the initial Petition for Modification, demonstrate that the current modification request was

based upon allegations of changed circumstances and the best interests of the children.8

Thus, the current modification request is governed by W. Va. Code § 48-9-401 (2001) (Repl.

Vol. 2009).9


               8
                The father’s request for modification, based upon his asserted facts, did not
invoke W. Va. Code § 48-9-402 through 404. Section 402 provides for modification without
a showing of changed circumstances, section 403 provides for modification upon the
relocation of a parent, and section 404 provides for modification due to a parent’s military
service. See generally Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). While
section 403 specifically applies in cases of parental relocation, it sets forth that “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.” In the present case, the mother’s
relocation did not impair the father’s ability to exercise his visitation rights. In fact, the
mother’s relocation made the father’s visitation feasible. Thus, the relocation by the mother
did not constitute a substantial change in circumstances under W. Va. Code § 48-9-401(a).
Further, the father’s relocation in 2009 was never the impetus of a petition for modification.
               9
                W. Va. Code § 48-9-401 (2001) (Repl. Vol. 2009) provides, in full, as follows:

                       (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
                                                                                   (continued...)

                                               9
            This Court previously has had occasion to review this statute, at which time we

held that

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



            9
             (...continued)
            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

                          (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.

                                           10
Syl. pt. 3, Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). Thus, the applicable

code provision in the case sub judice requires two components for a successful request for

modification of child custody: (1) a substantial change in circumstance, and (2) modification

must be in the best interests of the children.10 See Syl. pt. 2, Cloud v. Cloud, 161 W. Va. 45,

239 S.E.2d 669 (1977) (“To justify a change of child custody, in addition to a change in

circumstances of the parties, it must be shown that such change would materially promote

the welfare of the child.”).



               The lower courts’ decisions that there was a substantial change in circumstance

relied on the mother’s relocation from Colorado to West Virginia, as well as on the stated

preference of the children as to their custodial placement. As we previously explained, the

mother’s relocation did not impair the father’s ability to exercise his visitation rights. In fact,

the mother’s relocation made visitation possible for the father, and was not a substantial

change in circumstances under W. Va. Code § 48-9-401(a). See note 8, supra.



               Therefore, we turn to the issue of the preferences asserted by the children to

live with their father. T.C., age ten, and M.C., age six, both voiced a desire to live with their



               10
               Alternatively, if a parenting plan is found to be manifestly harmful, a
modification can occur even in the absence of a change in circumstances. See W. Va. Code
§ 48-9-401(b). There is no assertion of manifest harm to the children in the present case. In
fact, the experts testified, and the underlying courts found, that both parents were fit
caregivers.

                                                11
father. Because of the children’s ages when the petition to modify the parenting plan was

filed, W. Va. Code § 48-9-402(b)(3) (2001) (Repl. Vol. 2009), which provides for

modification based on “the reasonable and firm preferences of a child who has attained the

age of fourteen,” does not apply. Nevertheless, this Court recently has found that a child’s

significant advancement from the age of four to the age of eleven, which was not provided

for in the original parenting plan, can be a substantial change of circumstance on which a

modification of the parenting plan order may be based pursuant to W. Va. Code § 48-9-401.

See generally Skidmore, 229 W. Va. 13, 725 S.E.2d 182. The Skidmore opinion cautions,

however, that the

              advance in a child’s age will [not] necessarily constitute a basis
              for a modification of a parenting plan order in all cases.
              Whether any change in circumstance that was not anticipated in
              a parenting plan can serve as the basis for a modification is a
              case specific question, and courts must consider the best interest
              of the child in each individual case.

Id., 229 W. Va. at __ n.3, 725 S.E.2d at 191 n.3.



              It is clear, therefore, that while an advancement in age can be considered a

change in circumstance sufficient to warrant a modification of custody, the change in custody

also must be in the children’s best interests. Because we find that the change in custody did

not serve the best interests of the children, we need not examine whether the advancement

in the children’s ages nor their stated preferences constituted a change in circumstances.




                                             12
              The Legislature has declared “that a child’s best interest will be served by

assuring that minor children have frequent and continuing contact with parents who have

shown the ability to act in the best interest of their children[.]” W. Va. Code § 48-9-101

(2001) (Repl. Vol. 2009). Moreover, a child’s best interests are served by ensuring

              (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.

W. Va. Code § 48-9-102 (2001) (Repl. Vol. 2009). In determining the children’s best

interests, the child’s preferences should be considered.11


              11
                See Skidmore, 229 W. Va. at __ n.5, 725 S.E.2d at 191 n.5 explaining that the
child’s

              preferences should be considered in determining whether a
              modification based on a substantial change in circumstance is in
              his best interest. This Court has previously recognized that a
              child’s preferences with regard to custody matters should be
              considered when that child’s age and maturity level so warrants,
                                                                                 (continued...)

                                             13
              In the present case, T.C. and M.C. both expressed a desire to live with their

father. M.C.’s reasons were based primarily on the desire to live wherever her older brother

lived. T.C. had been showing some anger issues towards his mother, for which he was

receiving counseling. This Court is concerned, however, because there is evidence in the

record suggesting that T.C.’s anger towards his mother was exacerbated by the father. For

example, the father would enroll T.C. in weekend sports programs and then, when it was the

mother’s turn to exercise visitation, the father would comment that the mother was

preventing T.C. from being able to participate in the sports activities. The expert witnesses

testified that the son believes it is in his best interests to have the lifestyle that can be

provided in the father’s home and that, as a single parent, his mother cannot provide the

structure that he desires. The lower court found that the children view life with their mother

as “stressful and chaotic” and life with their father as “more predictable.”




              11
                (...continued)
              even if the child has not yet reached the age of fourteen. See
              State ex rel. Jeanne U. v. Canady, 210 W. Va. 88, 96-97, 554
              S.E.2d 121, 129-30 (2001) (“While [the child] is not yet
              fourteen years of age, his age and maturity level should be
              considered, and his desires concerning visitation with his
              biological father must be examined.”). In this case, the guardian
              ad litem’s report represents that [T.C.] is “bright,” “articulate”
              and “mature for his age,” and that he expressed a clear desire to
              spend more time with his father. Under these circumstances,
              [the child’s] clearly expressed preference should be among the
              factors considered in determining whether a modification is in
              his best interest.

                                             14
               Significantly, a large part of the underlying decision seems to be based on an

improper analysis of the effect of the stepmother’s involvement in the children’s lives when

they are at their father’s home and the fact that the mother must use outside childcare when

she has the children. While the family court found that it “is unfair to punish the [mother]

for being a working parent and not being able to provide the luxury of home cooked

meals[,]” it also found that the father was not faced with similar time constraints because his

new wife stayed home and took care of the chores for him. “Dr. Krieg said that he would

not recommend the change of custody to have the children reside primarily with the [father]

if it were not for the step-mother being home to care for the children[ ]” and that “the step-

mother is responsible for providing for the needs of the family.”



               We note that W. Va. Code § 48-9-101(c) expressly states that “the following

circumstances do not justify a significant modification of a parenting plan . . . . (2) A parent’s

remarriage or cohabitation; and (3) Choice of reasonable caretaking arrangements for the

child by a legal parent, including the child’s placement in day care.” (Emphasis added). In

reality, the modification of custody did not further the relationship between the children and

their father. Rather, it enhanced the relationship between the children and their stepmother,

while also damaging the relationship they have with their biological mother.                 The

considerations of the stepmother’s ability to provide childcare and the mother’s need for

outside childcare were improper components of a custody arrangement to be considered by

the lower courts.

                                               15
              Moreover, the evidence shows that the best interests of the children are best

served by continuing their custody relationship with their mother. The lower court found that

the father’s behavior was arrogant and self-centered and that his refusal to relocate was not

in the children’s best interests.12 Meanwhile, the mother’s concern for her children was

evidenced by the fact that she moved across the country to allow the father to have additional

involvement in his children’s lives, and was in the best interests of her children.

Significantly, the lower courts found that the mother is a fit parent, and the circuit court’s

order specifically stated that “the record contains evidence of a number of factors which

suggest that the child[ren]’s welfare will not be significantly improved by a change in

custody.”



              Because the father was unable to prove a substantial change in circumstances

under W. Va. Code § 48-9-401 and, further, because the best interests of the children are

served by maintaining primary custodial responsibility with their mother, the lower courts

erred in modifying custody and awarding primary custodial responsibility to the father.




              12
                  The mother’s relocation to West Virginia brought the households in closer
proximity and the lower courts suggested that the father move from Virginia to West Virginia
to facilitate visitation. This recommendation was based on the fact that the father commuted
to work, and his travel time would remain consistent even after such a move. However, the
father was unwilling to move.

                                             16
                                            IV.

                                     CONCLUSION

              For the foregoing reasons, the Circuit Court of Jefferson County’s order of

March 1, 2012, which denied the mother’s petition for appeal and upheld the family court’s

November 22, 2011, order, is reversed. Further, this case is remanded for entry of an order

reversing the family court’s order that granted the father’s Motion for Modification.



                                                                 Reversed and Remanded.




                                            17
