                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS

Nathan H.,
Petitioner below, Petitioner                                                        FILED
                                                                                 June 10, 2020
                                                                                    released at 3:00 p.m.
vs.) No. 19-0122 (Kanawha County 09-D-812)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Ashlee R.,
Respondent below, Respondent


                                 MEMORANDUM DECISION

        Petitioner Nathan H. (“the Father”),1 by counsel Timothy A. Bradford, appeals the January
11, 2019, and January 17, 2019, orders of the Circuit Court of Kanawha County reversing the
December 19, 2017, order of the Family Court of Kanawha County denying respondent Ashlee
R.’s (“the Mother”) request to relocate. The Mother, by counsel Paul S. Saluja, filed a response in
support of the circuit court’s orders.

        The Court has considered the parties’ briefs, oral arguments, and the appendix record on
appeal. 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 circuit court’s January 17, 2019, order is affirmed, and the circuit
court’s January 11, 2019, order is reversed, in part, and remanded to the family court for further
proceedings consistent with this memorandum decision.

        The Father and the Mother are the parents of H.J.H., a minor,2 and were divorced by order
entered on December 4, 2009. As part of the divorce proceeding, the family court adopted a
parenting plan in which the parties agreed to a fifty-fifty split of custodial responsibility. The
parenting plan was modified by agreed order entered October 5, 2012, due to the Mother’s
relocation to Raleigh County. With no objection by the Father, the parties agreed that the Father




       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved with the case. See In re K.H., 235 W.
Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
       2
         The minor child was three years old at the time of her parents’ divorce and is now thirteen
years old.

                                                 1
had approximately 35% custodial time with H.J.H., and the Mother had approximately 65%
custodial time.3

       On August 7, 2017, the Mother, by counsel, filed a Notice of Relocation, seeking to relocate
to White Sulphur Springs, West Virginia.4 While living in Raleigh County, the Mother received
and accepted an employment offer at the Greenbrier Clinic located in White Sulphur Springs in
Greenbrier County. By accepting this offer, the Mother increased her income from approximately
$60,000 per year to approximately $120,000 a year. The Mother sought to modify the October 5,
2012, parenting plan by reducing the Father’s parenting time with their child from 130 days to 113
days or from 35.6 % to 30.9 %. The Father objected to the relocation.

       On November 17, 2017, the family court held a hearing on the relocation issue in which
both the Father and the Mother testified. By order entered December 19, 2017, the family court
denied the Mother’s request to relocate. The family court found:

               50.     Employment is a legitimate purpose. However, the Notice of
       Relocation was also filed to carry out a “war” against the petitioner father
       on child related issues.
               51.     Under the circumstances of the recent lowering of father’s
       child support on December 19, 2016, it is reasonable to infer that the
       respondent mother was attempting to get the child support increased
       through the changed parenting schedule in her proposed relocation because
       the father would be with the child less overnights.5


       3
          In an ancillary matter, on October 24, 2016, a petition seeking modification of child
support was filed, which resulted in the lowering of the amount of child support paid by the Father.
This determination was affirmed by the circuit court and was not appealed to this Court. After the
Father’s child support amount was lowered, the Mother admitted that in January of 2017, she told
the Father that “there was a war.”

         The Father also filed a motion for a retroactive reduction of child support in conjunction
with the reduction in his child support payment. The family court ultimately found that the
Mother’s failure to make full financial disclosures including some $88,000 in income from the sale
of items on Ebay over the course of four years constituted a fraud perpetrated on the court and
ordered a $9,908.60 retroactive child support reduction. The Mother appealed the retroactive child
support determination to the circuit court, which upheld the family court’s decision on this issue
in its January 11, 2019, order. Neither party appeals that issue and, therefore, this Court does not
address it.
       4
         The Mother previously had filed a pro se Notice of Relocation to White Sulphur Springs
on March 8, 2017. The family court dismissed the Mother’s notice to relocate “as a matter of
equity and as a sanction[]” for the Mother’s failure to provide financial information relative to the
child support issue discussed supra note 3. This order was not appealed.
       5
         See generally Nichole L. v. Steven W., 241 W. Va. 466, 474, 825 S.E.2d 794, 802
(2019)(discussing appropriateness “for taking caretaking functions to be taken into consideration
                                                 2
              52.    The contemplated relocation may be, in-part, for a legitimate
       purpose. However it is not in good faith.
              53.    The relocation was reasonable in light of a legitimate
       purpose given the $120,000 salary and the benefits with the position.

(Footnote added). But despite the family court finding that “[n]either party put on any real
evidence on the effects of relocation on the minor child[,]” the family court found the Mother’s
proposed relocation and parenting plan were “not in the best interests of the child.” The family
court also moved the drop-off point for the child from Marmet, West Virginia, to Beckley, West
Virginia, and, sua sponte, ordered that the child support paid by the Father “be reduced by $200.00
per month to cover the petitioner father’s new long distance visitation costs,” due to this change.
Further, the family court gave the Father an additional week of parenting time during the summer
school vacation, modifying the 2012 agreed parenting plan.6

         The Mother appealed the December 19, 2017, order to the circuit court. The circuit court
held the first of two hearings on May 24, 2018. In the first hearing, the circuit court found that the
family court’s findings regarding the Mother’s relocation to White Sulphur Springs “were clearly
erroneous” and that the family court had abused its discretion “in not affording her the opportunity
to relocate under the circumstances[.]” The circuit court further determined that it was premature
for the family court to have reduced child support by $200 a month due to increased travel as there
was an absence of any type of evidence and remanded this issue back to the family court.

        On August 21, 2018, while the appeal was still pending before the circuit court,7 the Mother
filed another “Notice of Relocation and Motion of the Respondent for the Circuit Court to Retain
Jurisdiction.” This filing was due to the Mother’s remarriage on March 2, 2018. In this relocation
notice, the Mother planned to relocate with the child to Draper, Virginia, near Wytheville. The
Mother’s new husband was a physician and had accepted a job at the Wythe County Community
Hospital in Wytheville. Because of his duties, he had to reside within thirty minutes of the hospital.
The Mother was also pregnant with her new husband’s child. The Mother indicated that there
were no changes to her proposed modified parenting plan offered with her prior relocation notice
to White Sulphur Springs. The Mother asked that the circuit court retain jurisdiction given its
“prior ruling to grant the relocation previously requested by the Respondent [Mother] and the lack
of any impairment to the custodial responsibilities of the Petitioner [Father] there is no change of
circumstances under W. Va. Code § 48-9-403.”

        The Father objected not only to the motion to relocate, but also to the motion that the circuit
court retain jurisdiction. The Father argued that the circuit court did not have original jurisdiction

when calculating the proportion of each parent’s custodial responsibility” and not only each
parent’s overnight visits with the child).
       6
          The Mother raises no argument regarding the additional week given to the Father in her
petition for appeal filed with this Court.
       7
         The appeal was still pending due to additional documentation sought by the circuit court
regarding the retroactive child support issue. See supra note 3.

                                                  3
over the motion. The Father maintained that there is no concurrent jurisdiction of the family court
and the circuit court in cases involving relocation petitions. The Father contended that the circuit
court only has jurisdiction once an appeal from family court occurs.

       On November 26, 2018, the circuit court conducted a second hearing. The circuit court
found, over the Father’s objection, that the move to Wytheville, Virginia, instead of White Sulphur
Springs, West Virginia, was not “any material change” in what the circuit court previously ordered
and that the move was “in the best interest of” the minor child to be with her Mother and sibling-
to-be. The circuit court noted the Father’s continuing objection to its exercise of jurisdiction.

        Following this hearing, the circuit court entered two orders in January of 2019. The
January 17, 2019, order reflected its rulings from the May 24, 2018, hearing, including finding the
Mother’s requested relocation to White Sulphur Springs to be warranted. Specifically, the circuit
court found that

               [t]he requested relocation of the [r]espondent [Mother] was
       warranted as a move made in good faith for a legitimate purpose and to a
       location reasonable in light of that purpose. That the [f]amily [c]ourt
       findings to the contrary were clearly erroneous, that [the family court]
       abused [its] discretion in not affording [respondent] the opportunity to
       relocate under the circumstances.

Further, the circuit court remanded to the family court for specific findings relating to a $200 credit
towards the Father’s child support obligation for travel expenses.

        The circuit court’s January 11, 2019, order set forth its rulings from the November 26,
2018, hearing. In that order, the circuit court found that because it was a court of general
jurisdiction, it had jurisdiction to rule on the second relocation notice filed by the Mother wherein
she requested to relocate to Wytheville, Virginia. The circuit court found that the Mother’s
“proposed relocation to Wytheville, Virginia, where her current spouse is gainfully employed, will
not substantially interfere with this Court’s previously adopted parenting plan[,]” and that “[t]he
proposed relocation is consistent with the terms of W. Va. Code § 48-9-403(d)(2) and is therefore
APPROVED, RATIFIED, CONFIRMED, and ADOPTED by the Court.” 8 It is from these two
orders that the Father appeals.

         The Father raises four assignments of error on appeal. Initially, the Father argues that the
circuit court exceeded its jurisdiction by considering the Mother’s second notice of relocation. The
Father also argues that the circuit court erred in reversing the family court’s order denying the
Mother’s first notice of relocation to White Sulphur Springs. Additionally, the Father argues that


       8
         The circuit court also ordered that the Mother repay the Father $9,908.60 for retroactive
child support, finding the family court did not err on this issue. Again, this issue is not appealed
by the Mother. See supra note 3.



                                                  4
the circuit court erred in denying his objection to the Mother’s relocation to Wytheville, Virginia.
Finally, the Father assigns as error the circuit court’s ruling that remanded the case to the family
court for further findings on the child support reduction due to travel expenses. We will address
each assignment of error in turn.

        Our standard of review of circuit court’s orders is well settled:

                      “‘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).” Syllabus point 1, Storrie
               v. Simmons, 225 W. Va. 317, 693 S.E.2d 70 (2010) (per curiam).

Nicole L., 241 W. Va. at 468, 825 S.E.2d 796, Syl. Pt. 1.

        The first issue concerns the circuit court’s jurisdiction to entertain the Mother’s second
notice of relocation to Wytheville, Virginia. The Father argues that both the Legislature and this
Court have determined that the family court has jurisdiction to hear questions regarding parenting
plans and allocation of custodial responsibility—not the circuit court. According to the Father, the
proper procedure was for the family court to hear evidence on the proposed relocation to Virginia.
The filing of a notice of relocation—which the Mother filed in family court while the case was on
appeal to the circuit court—did not give the circuit court the right to disregard the jurisdiction of
the family court as set forth in West Virginia Code § 51-2A-2, as there is no dual or concurrent
jurisdiction on these types of issues.9 We agree.


       9
          We disagree with the Mother’s argument that our decision in Lindsie D.L. v. Richard
W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003), gave the circuit court concurrent jurisdiction to hear
the relocation issue. Instead, we find that the facts of the Lindsie D.L. case make it distinguishable
from the instant case.

        The issue in Lindsie D.L. involved a minor seeking visitation with her minor half-sibling.
The circuit court had dismissed the action finding that there was no statutory or common law right
of visitation between the minor and her minor half-sibling and, therefore, the circuit court had no
jurisdiction. Id. at 752-53, 591 S.E.2d at 310-11.

        This Court granted a writ of habeas corpus and remanded the case to the circuit court for a
hearing, finding that the circuit court had concurrent jurisdiction with the family court to decide
the half-sibling visitation issue under the facts before it, stating:

                       Applying this rule [that concurrent jurisdiction between the
               family court and circuit court existed] to the instant facts, we note
               that neither W. Va. Code § 51-2A-2 nor §§ 48-1-101 et seq.
               specifically authorizes family courts to hear sibling visitation issues
                                                  5
        The West Virginia Constitution, West Virginia Code § 51-2A-2, and the West Virginia
Rules of Practice and Procedure for Family Court10 expressly indicate that the matter sub judice
should have been heard first by the family court. Specifically, the West Virginia Constitution
provides: “Family courts shall have original jurisdiction in the areas of family law and related
matters as may hereafter be established by law.” W. Va. Const. art. VIII, § 16. Further, West
Virginia Code § 51-2A-2(a)(9) provides that “[t]he family court shall exercise jurisdiction over the
following matters . . . ; (9) All motions for modification of an order providing for a parenting plan
or other allocation of custodial responsibility or decision-making responsibility for a child or for
child support or spousal support.” This statutory provision also provides for concurrent
jurisdiction of the circuit court with the family court only as follows:

                If an action for divorce, annulment, or separate maintenance does
                not require the establishment of a parenting plan or other allocation
                of custodial responsibility or decision-making responsibility for a
                child and does not require an award or any payment of child
                support, the circuit court has concurrent jurisdiction with the family
                court over the action if, at the time of the filing of the action, the
                parties also file a written property settlement agreement executed by
                both parties.


                like the instant one. Said another way, sibling visitation cases like
                the one at issue are not confined exclusively, or at all, to family
                courts. We conclude, therefore, that the circuit courts have
                jurisdiction.

214 W. Va. at 756, 591 S.E.2d at 314 (footnote omitted). In the instant case, in contrast to Lindsie
D.L. and as discussed more fully above, West Virginia Code § 51-2A-2 specifically authorizes
only the family courts to hear parenting plan modification issues.

       10
            Rule 3(b) of the West Virginia Rules of Practice and Procedure for Family Court
provides:

                Effective January 1, 2002, all family court cases pending before the
                circuit court, whether on review of recommended order or
                otherwise, shall be transferred to the jurisdiction of the family court.
                In those cases where a recommended order has been previously
                filed, the family court shall enter a final order as soon as practical
                after transfer; provided, however, that if the parties have previously
                filed objections to a recommended order, the family court judge
                shall consider those objections and rule upon them as part of the
                family court final order. Where a circuit court has conducted
                evidentiary proceedings in a case prior to January 1, 2002, the circuit
                court may request, by January 31, 2002, pursuant to W.Va. Code §
                51-2A-19(b), and taking into account the circumstances of the case,
                that the circuit court judge be appointed as a family court judge in
                such case.
                                                   6
Id. § 51-2A-2(b) (emphasis added).11

        Pursuant to the express provisions of West Virginia Code § 51-2A-2(a)(9), because parent
relocation issues necessarily involve motions to modify “parenting plan[s] or other allocation of
custodial responsibility or decision-making responsibility for a child,” they fall within the
jurisdiction of the family court and the circuit court does not have concurrent jurisdiction over
these matters. The circuit court, therefore, did not have jurisdiction to resolve the second Notice
of Relocation filed by the Mother to relocate to Wytheville, Virginia. We reverse the circuit court
and remand to the family court for further proceedings on this issue.12 As it was represented during
oral argument before this Court that the Mother has relocated to Virginia, upon remand, the
relocation issue should be resolved by the family court in an expedited manner through a hearing
on the notice to relocate to Virginia within sixty days from the date this memorandum decision is
issued.

        The Father next argues that the circuit court erred when it reversed the family court’s order,
which denied the Mother’s first notice of relocation to White Sulphur Springs. According to the
Father, the circuit court was focused primarily on the job opportunity for the Mother and not the
best interests of his minor child. The mother argues that she sought to advance the economic best
interests for herself and her child. She contends that she only sought to rearrange the parenting
plan, “not impair the schedule or reduce the time” that the Father could spend with their child. The
Mother maintains that the move was in good faith and for a legitimate purpose.

      We begin our discussion of this issue by noting that the parties conceded that neither of
them exercised a significant majority of the custodial responsibility for the child as defined by
West Virginia Code § 48-9-403.13 Because neither party exercises the statutory seventy percent of



       11
           Moreover, West Virginia Code § 51-2A-11(a) sets forth the jurisdiction of the circuit
court as an appellate court by providing for an appeal of a family court order to the circuit court
within thirty days following the entry of a final order.
       12
          Because the circuit court did not have jurisdiction to resolve the Mother’s second Notice
of Relocation to Wytheville, thereby necessitating a remand to the family court for resolution, we
find the Father’s assigned error regarding the circuit court’s denial of his objection to the Mother’s
relocation to Virginia to be moot.
       13
            West Virginia Code § 48-9-403(d)(1), provides:

                         A parent who has been exercising a significant majority of
                the custodial responsibility for the child should be allowed to
                relocate with the child so long as that parent shows that the
                relocation is in good faith for a legitimate purpose and to a location
                that is reasonable in light of the purpose. The percentage of custodial
                responsibility that constitutes a significant majority of custodial
                responsibility is seventy percent or more.
                                                  7
custodial time constituting a “significant majority,” West Virginia Code § 48-9-403(d)(2) sets forth
the necessary analysis that a court must undertake:

                        If a relocation of the parent is in good faith for legitimate
                purpose and to a location that is reasonable in light the purpose and
                if neither has been exercising a significant majority of custodial
                responsibility for the child, the court shall reallocate custodial
                responsibility based on the best interest of the child, taking into
                account all relevant factors including the effects of the relocation on
                the child.

Id. Accordingly, if a parent’s desired relocation is in good faith, for a legitimate purpose and to a
location that is reasonable in light of that purpose, the court’s inquiry turns to reallocating custodial
responsibility based upon the child’s best interests. Id.

        Based upon our review of the record, the circuit court agreed with the family court’s order
finding the Mother’s relocation to White Sulphur Springs was for a legitimate purpose and to a
reasonable location “given the vast increase in salary to $120,000.00 and the benefits with the
position.” The circuit court, however, found that the family court clearly erred and abused its
discretion in ruling that the relocation was not in good faith and was not in the child’s best interest.
Specifically, the circuit court stated in response to the Father’s argument that the relocation was
not in his child’s best interest:

                [W]hy isn’t it in the child’s best interest for the mother to be able to
        provide for the child like that, and have that much more salary, that much
        more position, that much more of a position of frankly, prominence, and be
        able to take care of the child better?

                ....

                But it does [benefit the child]. I mean, to me . . . it’s helpful for the
        child for the mother to be working in Greenbrier County. The child to be
        educated in Greenbrier County. If something happens at school, if she
        needs to pick her up, it’s – it just works.

Based upon the foregoing, we conclude that the circuit court did not err in its determination that
the family court erred in denying the Mother’s relocation to White Sulphur Springs.

        Finally, the Father argues that the circuit court erred in remanding the case to the family
court for further findings on the child support reduction of $200 the family court ordered due to
travel expenses. The Father argues that the family court had a right to make an adjustment under
West Virginia Code § 48-13-70214 and the family court’s ruling should not be disturbed. We


        14
          West Virginia Code § 48-13-702 provides for a deviation from the child support
guidelines for “[l]ong distance visitation costs.”

                                                   8
disagree. The circuit court properly found that the family court failed to make specific findings
relating to the reasons for the $200 credit or deviation from the child support guidelines. Our
review of the record shows it is devoid of any evidence supporting such a deviation. Accordingly,
we affirm the circuit court’s ruling sending this case back to the family court for further findings.

        For the foregoing reasons, we reverse the circuit court’s January 11, 2019, order, in part,
and remand the matter to the family court for further proceedings, including a hearing on the
Mother’s notice to relocate to Virginia within sixty days from the date this memorandum decision
is issued, and as further set forth in this decision; and we affirm the circuit court’s January 17,
2019, order.

                                                                                 Affirmed, in part;
                                                                   Reversed, in part, and remanded
                                                                                    with directions.


ISSUED: June 10, 2020

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




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