                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Robert M., Petitioner                                                                FILED
                                                                                  June 13, 2014
vs) No. 13-0879 (Kanawha County 09-D-2302)                                      RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Jessica M., Respondent


                               MEMORANDUM DECISION
        Petitioner Robert M.1 (“Petitioner Father”) by counsel Lyne Ranson, appeals the July 8,
2013, order of the Circuit Court of Kanawha County affirming an order of the Family Court of
Kanawha County that denied his motion for immediate return of his minor child to West Virginia
and for modification of the parenting plan and transfer of custody following Respondent Jessica
M.’s (“Respondent Mother”) relocation to Wisconsin with the child. Respondent Mother, by
counsel Chelsea Walker-Gaskins, filed a response to which petitioner replied. Guardian ad litem
Sharon K. Childers filed a summary response in support of the circuit court’s order to which
petitioner also replied.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

      The parties were married on April 5, 2006. One child, T.M., was born unto the marriage
on March 26, 2009. The parties divorced on April 17, 2009.

        Respondent Mother has consistently been T.M.’s primary residential caretaker. By order
entered June 21, 2012, the family court designated Respondent Mother as the child’s primary
residential parent. Petitioner Father was awarded unsupervised parenting time that included
specified weeknights, weekends, and holidays.2

       1
           As is our customary practice in domestic relations cases involving minors, we refer to
the parties by using only the first initial of their last names and refer to the children by using only
their initials. See, e.g., In re Emily B., 208 W.Va. 325, 329 n.1, 540 S.E.2d 542, 546 n.1 (2000).
       2
         As explained by the guardian ad litem in the present appeal, Petitioner Father had
unsupervised parenting time prior to late 2011. In her summary response filed with this Court,
the guardian states that, in late 2011, Petitioner Father’s parenting time was terminated after
Respondent Mother filed an emergency motion


                                                  1

        On July 26, 2012, Respondent Mother filed a Notice of Relocation, seeking court
approval to relocate to Wisconsin to join her fiancé, who was transferred there after receiving a
promotion and significant pay raise at work. Respondent Mother indicated that she planned to
enroll at a nearby university and continue her employment with the same retail chain for which
she worked in West Virginia. Respondent Mother’s Notice of Relocation set September 30,



       as a result of a mental health episode that occurred during the time he had [T.M.].
       [Petitioner Father] suffered a couple of serious mental health episodes in
       September 2011, including holding a knife to his throat, while threatening to kill
       himself and his current wife. [He] voluntarily signed himself into Highland
       Hospital for a 72 hour period, per a mental hygiene order. These September
       episodes were most concerning to the mother because she found out through a
       third-party, several weeks later, causing her to file the emergency motion.

              [Petitioner Father] has suffered anger outbursts to the point of blacking
       out, anxiety, depression, irritability, mood swings, and nightmares for years.
       According to my interviews with the father and various family members, he has
       suffered from mental health issues since high school.

        The guardian further indicated that Petitioner Father has been hospitalized “for acute
episodes of behavioral agitation with physical violence at home, tearing up the house, emotional
dyscontrol, and passive suicide ideation.” He has been diagnosed with PTSD, depression, and
anxiety.” She also noted that, in 2010, he was charged with domestic battery and destruction of
property involving Respondent Mother. During this incident, he “lost control and became
violent” while holding T.M., who was then twenty-one months old. According to the guardian,
“[o]ne of the most concerning aspects is that [Petitioner Father] would go years without
consistently and appropriately treating his mental health conditions[,]” and, further, he “has a
history of poor parenting decisions affecting the welfare of his daughter and not properly treating
his mental health and anger issues.”

        Notwithstanding the foregoing, the guardian indicated that the parenting schedule
gradually moved from supervised to unsupervised and, by August of 2012, Petitioner Father was
able to return to the original parenting schedule while continuing therapeutic treatment with his
counselor and medication. When Respondent Mother filed her motion for relocation, the
guardian conducted a thorough investigation and interviewed the parties. She recommended to
the family court that the request for relocation be granted based upon, among other things, the
fact that Respondent Mother “has been a stable, consistent, fit, primary caregiver for [T.M.] for
her entire life[;]” that the request to relocate was not made in bad faith; and that Respondent
Mother’s fiancé received a significant promotion in Wisconsin and was a source of emotional
and financial support to both Respondent Mother and T.M. The guardian specifically noted that
she had no concerns that Respondent Mother would move away and deny T.M. contact with her
father given that they had successfully followed all parenting schedules even though they did not
get along. In her brief to this Court, the guardian reiterated her initial recommendation that
relocation was in T.M.’s best interests “considering the totality of the circumstances and the
parents’ behavior, all the while ensuring [T.M.’s] safety while continuing parental relationships.”
                                                2

2012, as her date of relocation.3

        On September 21, 2012, nine days before Respondent Mother’s relocation date,
Petitioner Father filed a Notice of Relocation Hearing and a hearing was scheduled for
November 2, 2012.4

        By order entered October 5, 2012, the family court granted Respondent Mother’s request
to move to Oak Creek, Wisconsin, and approved her proposed parenting plan. In its order, the
family court specifically noted that “a period of sixty (60) days ha[s] passed and there were no
objections filed by the [father] to the relocation nor did [Respondent Father] seek to schedule a
hearing on the same until September 17, 2012, 53 days after the filing of the Notice of
Relocation.” (Emphasis in original). While acknowledging that, upon Petitioner Father’s request,
a hearing date of November 2, 2012, was set because that was the first date available to
Petitioner Father’s counsel, the family court determined that “[Petitioner Father] has been
dilatory in his request for a hearing” and that “[Petitioner Father] should not be rewarded for his
inaction.” The family court further found that “the verified Petition for Relocation shows that the
relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of
the purpose[;] [t]hat no verified objections have been filed to challenge the assertions of the
[mother] [;] [and] [t]hat [Respondent Mother] has submitted a proposed parenting plan . . . which
actually proposes more parenting time to [Petitioner Father] than he currently receives.”

       Petitioner Father filed a motion to stay the order granting relocation on October 15, 2012,
and on October 18, 2012, he filed a petition for appeal. On October 26, 2012, following a
hearing, the circuit court entered an order reversing and remanding the order granting
Respondent Mother’s relocation on the ground that no testimony or evidence on Respondent
Mother’s relocation request was heard below and Petitioner Father had no opportunity to cross-
examine her about the request.

        Following remand, a hearing was conducted in family court on Respondent Mother’s
Notice of Relocation on November 28, 2012. Thereafter, by order entered December 19, 2012,
the family court granted the relocation request.5 Among other things, the order noted that
Petitioner Father “failed to file, consistent with the relocation statute, a parenting plan consistent
with the relocation of [Respondent Mother] with the subject child to the [S]tate of Wisconsin nor
an alternative parenting plan consistent with the subject child remaining in the [S]tate of West
Virginia and [Respondent Mother] moving to the [S]tate of Wisconsin, pursuant to W.Va. Code

       3
         Petitioner Father’s present counsel filed a Notice of Appearance on or about August 6,
2012, but did not file a response and objection to the notice of relocation until October 26, 2012.
       4
          This date fell more than one month after Respondent Mother’s scheduled date of
relocation.
       5
         We note that the incident of domestic violence involving the parties that occurred in
2010 and the 2011 incident resulting in Petitioner Father becoming the subject of a mental
hygiene complaint were set forth in detail in the family court’s December 19, 2012, order. See
n.2, supra.
                                                  3

48-9-205.” The family court further noted that the parenting plan Respondent Mother filed
contemporaneously with her notice of relocation was “fair and equitable” and afforded Petitioner
Father more parenting time than he received under a prior family court order entered on June 21,
2012. The family court also incorporated by reference the written report of the guardian ad litem,
who recommended that the best interest of T.M. “would be represented by maintaining
[Respondent Mother] as the primary residential custodian and granting [her] Motion to Relocate
to Wisconsin with [T.M.].” The guardian ad litem further recommended that Petitioner Father
“should have as much parenting time as possible, given the distance between the parties.”
Although the guardian’s report opined that Respondent Mother’s proposed parenting plan was
“reasonable,” it recommended additional parenting time with Petitioner Father.

         Additionally, the family court order found Respondent Mother’s relocation with T.M. to
be for the legitimate purpose of being with their support network—i.e., Respondent Mother’s
fiancé and companion for more than two and one half years who was promoted by his employer
to a management position in Wisconsin “with a substantial increase in income, benefits, and
additional opportunities for upward management mobility in the company.” The family court
determined that Respondent Mother’s fiancé was “a significant support network for her as she
testified . . . that significant fundamental services have been cut off to her because of her inability
to afford them as a result of her fiancé moving to Wisconsin. . . .”

        Furthermore, the family court specifically found the relocation to be for a legitimate
reason given that employment opportunities for Respondent Mother in her profession as a
phlebotomist are “limited” in Charleston because the hours available are not conducive to child-
rearing. Respondent Mother proved to the family court by a preponderance of the evidence that
there are phlebotomy jobs available in Milwaukee, Wisconsin, that would allow her to work
more traditional hours while T.M. was in daycare. Respondent Mother testified that the
numerous retail jobs she has held were only temporary in nature until she is able to find a
phlebotomy position in Wisconsin. The family court “commend[ed] [Respondent Mother] for
engaging in retail [work], temporary or otherwise, as it shows her serious work ethic.” The
family court concluded that Respondent Mother “has proven by a preponderance of the evidence
of the legitimacy of ‘any other purpose,’ which is to be with her fiancé who supports her
substantially and to pursue significant employment opportunity in another location.” Petitioner
Father filed a motion to stay the order and a petition for appeal. In December of 2012,
Respondent Mother moved to Wisconsin with T.M.

        Petitioner Father appealed the family court’s order to the circuit court and also filed a
motion to stay the order pending the outcome of the appeal. Following a hearing on January 10,
2013, the circuit court denied Petitioner Father’s motion to stay and deferred consideration of the
petition for appeal. The circuit court also directed the parties to attempt to resolve their
outstanding disagreements. With input from the guardian ad litem, a revised parenting plan was
agreed upon and submitted to the circuit court. On February 12, 2013, the circuit court entered
an agreed order that included a revised schedule for Petitioner Father’s visitation and parenting
time based upon the child’s relocation to Wisconsin. The petition for appeal was dismissed, with
prejudice.

       On March 29, 2013, Petitioner Father filed the instant motion for immediate return of the

                                                  4

child to West Virginia and modification of the parenting plan and custody, requesting that the
order granting relocation be vacated based upon Respondent Mother’s failure to marry her fiancé
in March of 2013. Petitioner Father alleged that the relocation was not in good faith and was
based on a “sham.”6 Petitioner Father requested an immediate hearing.7 By order entered April
10, 2013, the family court denied Petitioner Father’s motion finding that “there has been no
substantial change of circumstances. The Court’s previous decision was not predicated upon the
upcoming marriage of the mother, but rather the significance of the relationship, and the support
provided through that relationship.”

        Petitioner Father appealed the family court’s April 10, 2013, order to the circuit court and
also filed a Rule 60(b) motion to set aside the order. By order entered June 24, 2013, the circuit
court denied Petitioner Father’s petition for appeal and affirmed the order of the family court.8
This appeal followed.

       Our review of the circuit court’s order is governed by 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).

Syl. Pt. 1, Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012).

        Petitioner Father raises several related assignments of error. The crux of his argument is
that Respondent Mother’s failure to marry her fiancé in March of 2013 after she was permitted to
relocate with T.M. to Wisconsin and after entry of the parenting order constituted a substantial
change of circumstances under West Virginia Code § 48-9-401(a). West Virginia Code § 48-9­
401(a) provides as follows:

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

See Syl. Pt. 3, Skidmore v. Rogers, 229 W.Va. 13, 725 S.E.2d 182 (2011) (“West Virginia Code
§ 48–9–401(a) (2009) permits a court to modify a parenting plan order on the basis of a

       6
           Respondent Mother did not file a response to this motion.
       7
           The circuit court denied Petitioner Father’s request for a hearing
       8
           It does not appear that the circuit court ruled on Petitioner Father’s Rule 60(b) motion.
                                                   5

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.”) Petitioner Father argues that he relied upon Respondent Mother’s
representation that she was to be married in March of 2013 when he agreed to the parenting plan
entered by the circuit court on February 12, 2013. He further argues that Respondent Mother
failed to satisfy the provisions of West Virginia Code § 48-9-403(d)(1), which sets forth
legitimate purposes for which a custodial parent may relocate with the child;9 that the best
interests of T.M. were not properly considered; and that his ability to parent T.M. has been
significantly impaired as a result of her relocation ten hours away. See W.Va. Code § 48-9­
102(a) (setting forth primary objective of article involving allocation of custodial and decision
making responsibilities of children as “serv[ing] the child’s best interests, by facilitating[,]” inter
alia, “(1) [s]tability of the child; . . . (3) [c]ontinuity of existing parent-child attachments; . . .
[and] (4) [m]eaningful contact between a child and each parent. . . .”).

        In reviewing the circuit court’s order and record on appeal, we find no clear error or
abuse of discretion. Notwithstanding Petitioner Father’s argument to the contrary, Respondent
Mother’s request to relocate was not based primarily upon Respondent Mother’s marriage to her
fiancé in March of 2013.10 As both the family court and circuit court determined, Respondent

       9
           West Virginia Code § 49-8-403(d)(1) provides:

       (d) When the relocation constituting changed circumstances under subsection (a)
       of this section renders it impractical to maintain the same proportion of custodial
       responsibility as that being exercised by each parent, the court shall modify the
       parenting plan in accordance with the child's best interests and in accordance with
       the following principles:

       (1) 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. A relocation is for a legitimate purpose if it is to be close
       to significant family or other support networks, for significant health reasons, to
       protect the safety of the child or another member of the child’s household from
       significant risk of harm, to pursue a significant employment or educational
       opportunity or to be with one’s spouse who is established, or who is pursuing a
       significant employment or educational opportunity, in another location. The
       relocating parent has the burden of proving of the legitimacy of any other
       purpose. A move with a legitimate purpose is reasonable unless its purpose is
       shown to be substantially achievable without moving or by moving to a location
       that is substantially less disruptive of the other parent's relationship to the child.
       10
         In her brief to this court, the guardian stated that “[t]he undersigned did not cite the
mother’s marriage as a determining factor when recommending the court grant the relocation. It
was not the undersigned’s understanding that the parties’ parenting agreement hinged on the
                                                  6

Mother’s fiancé—with whom she has been in a long-term relationship and who received a
substantial promotion at work with attendant increases in pay and benefits—provided continuing
stability for Respondent Mother and T.M. and was a significant support network. The family
court further determined that, based upon her testimony, Respondent Mother proved by a
preponderance of the evidence that, as compared with Charleston, there are more jobs available
to her in Milwaukee, Wisconsin, in her chosen profession with hours conducive to parenting
T.M. We note further that both the family and circuit courts incorporated by reference the
guardian’s report, which opined that it was in T.M.’s best interest to remain with Respondent
Mother as the primary residential custodial parent and to allow relocation. See W.Va. Code § 48­
9-403(d)(1). Given these findings, and under the specific facts of this case, the failure of
Respondent Mother and her fiancé to marry in March 2013 does not constitute a substantial
change of circumstances such that a modification in the parenting plan is warranted. See W.Va.
Code § 48-9-401.11

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 13, 2014

CONCURRED IN BY:

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




mother’s marriage.”
       11
          Petitioner Father also argues that, in affirming the family court’s order, the circuit court
erroneously stated that Petitioner Father was afforded the opportunity to present evidence at a
family court hearing on his motion for the return of T.M. and for modification of the parenting
plan and custody. He argues that, in fact, no such hearing occurred and, further, that his request
for a hearing should have been granted so that he could have presented evidence of a substantial
change in circumstances based upon Respondent Mother’s failure to marry her fiancé in March
of 2013. We disagree. As previously established, the family court made clear that Respondent
Mother’s request for relocation was for the good faith and legitimate purposes of being with her
fiancé, who was found to be a significant support network, and to pursue employment
opportunities in her field more conducive to raising T.M. See W.Va. Code § 48-9-403(d)(1).
Therefore, we find no clear error or abuse of discretion in this regard.
                                                  7

