        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               JANUARY 2019 TERM

                                                                        FILED
                                                                    March 21, 2019
                                     No. 18-0025                        released at 3:00 p.m.
                                                                    EDYTHE NASH GAISER, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA


                                     NICOLE L.,
                             Petitioner Below, Petitioner

                                         V.

                                STEVEN W.,
                         Respondent Below, Respondent

         ________________________________________________________

                Appeal from the Circuit Court of Harrison County
                 The Honorable Christopher J. McCarthy, Judge

                             Civil Action No. 16-D-225-1

                       REVERSED AND REMANDED
        _________________________________________________________

                             Submitted: February 6, 2019
                                Filed: March 21, 2019



Delby B. Pool                                 Debra V. Chafin
Delby B. Pool & Associates                    Larry W. Chafin
Clarksburg, West Virginia                     Law Office of Debra V. Chafin, PLLC
Attorney for Petitioner                       Clarksburg, West Virginia
                                              Attorneys for Respondent



JUSTICE JENKINS delivered the Opinion of the Court.
                             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).” Syllabus point 1, Storrie v. Simmons, 225 W. Va. 317, 693 S.E.2d 70 (2010) (per

curiam).



              2.     For purposes of the parental relocation statute, West Virginia Code

§ 48-9-1 et seq., “custodial responsibility” includes duties innate to parenthood such as

those defined as caretaking functions in West Virginia Code § 48-1-210 (LexisNexis

2015).



              3.     Pursuant to     West Virginia Code § 48-9-403(d)(1) (LexisNexis

2015), if a parent who is exercising a significant majority of the custodial responsibility

for a child proves that a proposed relocation is in good faith for a legitimate purpose, the

location of the proposed move will be presumed to be reasonable. To overcome this

presumption, the opposing parent must prove that the purpose of the move is substantially

achievable without moving or by moving to a location that is substantially less disruptive

of the opposing parent’s relationship to the child.

                                             i
Jenkins, Justice:

              This is an appeal of an order entered December 7, 2017, in the Circuit Court

of Harrison County, that affirmed a family court order denying the petition for

modification filed by Petitioner Nicole L. (“Mother”)1 which was based on relocation

under West Virginia Code § 48-9-403 (LexisNexis 2015). Mother filed the petition

seeking to relocate with her children to Kentucky, and Respondent Steven W. (“Father”)

opposed the relocation. After the family court denied Mother’s petition for relocation, she

appealed the matter to the circuit court where the denial was upheld. While maintaining

that the lower courts properly denied Mother’s petition for relocation, Father also set forth

two cross-assignments of error,2 arguing that the family court abused its discretion by

failing to grant his motion to dismiss based on Mother’s failure to comply with the

relocation notice requirements, and that the family court abused its discretion by failing

to modify the parenting plan in accordance with Father’s proposal. Having considered the

briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the

applicable legal authority, this Court reverses the final order of the Circuit Court of

Harrison County, and remands for entry of an order granting Mother’s petition for

modification and establishing a new parenting plan.



              1
                 It is this Court’s customary practice in cases involving sensitive facts to
refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190
W. Va. 24, 26 n. 1, 435 S.E.2d 162, 164 n. 1 (1993).
              2
              See W. Va. R. App. P. 10(c)(10)(f) (providing for cross assignments of error
by respondents).

                                              1
                                            I.

                    FACTUAL AND PROCEDURAL HISTORY

             The parties were married in Tennessee in March of 2004 and last lived

together as husband and wife in Harrison County, West Virginia, in April of 2016. Two

children were born of the marriage, a daughter B.W., born in 2010, and a son T.W., born

in 2007.



             After the parties separated in spring of 2016, mediation took place, and the

parties came together to create a parenting plan. Mother was designated the “primary

residential parent,” and the plan set out the following: Father was to have parenting time

with both children every other weekend from Friday after school through Monday

morning. The plan also granted Father every Wednesday with son T.W. Per the parenting

plan, the parties could agree on additional time if they decided to do so. Mother was to

have the remaining time with the children. Additionally, the parties agreed that Mother

“did not waive her right to seek a relocation to Kentucky without meeting a burden of a

substantial change in circumstances, and the same shall be expressly reserved to her.”3



             Although Mother previously worked in marketing and real estate in

Kentucky, she did not have a job outside the home after the parties relocated to West

Virginia and had children. For this reason, in November and December of 2016, she


             3
               This is a summarized version of the parenting plan. Father also was given
additional time at Christmas, while Mother was allotted the entire Thanksgiving break.
                                            2
undertook an extensive search for employment and ultimately accepted a position with a

company near Harrison County. By March of 2017, Mother realized that Father was not

going to provide adequate assistance with the children as evidenced by the fact that she

was required to care for the children during Father’s custodial time in addition to being

solely responsible for the children’s medication and school-related activities.



              Mother asserts that she sought to mediate with Father to address these issues,

but that he refused because he was not required to attend mediation again until May of

2017. Accordingly, Mother applied for employment in Kentucky because she believed its

job market offered higher income and better career opportunities, in addition to being in

close proximity to Mother’s family and friends who could provide her with support. After

an unsuccessful mediation in May of 2017, Mother filed a petition with the family court

to modify the parenting plan and to permit her relocation to Kentucky.



              On June 22, 2017, the family court held a hearing on Mother’s motion for

temporary relief. Prior to the hearing, Mother obtained employment in Kentucky for more

than double her then-current salary plus valuable medical and retirement benefits;

however, Mother could not relocate to Kentucky to begin employment under the

residential schedule of the existing parenting plan. As such, the family court modified the

parenting plan for the remainder of summer, and further ordered the parties to attend

additional mediation. Because of the family court’s temporary summer parenting plan,



                                             3
Mother accepted the Kentucky job, ceased working in West Virginia, and made an offer

to purchase a home in Kentucky.



              After another failed mediation in July, the family court held a final hearing

on Mother’s relocation motion on August 3, 2017. Following a review of extensive

evidence, such as the children’s medical records, a portion of the parties’ text messages,

and testimony from various witnesses, the family court ultimately denied Mother’s

petition for relocation.



              Based upon the evidence submitted during the hearing, the family court

determined that although Mother exercised a significant majority of custodial

responsibility for daughter B.W., she did not exercise a significant majority for son T.W.4

The family court further found that Mother’s relocation was not in “good faith for a

legitimate purpose” as required by West Virginia Code § 48-9-403(d)(1). Although the

family court conceded that Mother’s acceptance of employment in Kentucky making

substantially more money than at her job in West Virginia appeared to suggest that she

was legitimately pursuing a “significantly better employment opportunity in Kentucky[,]”


              4
                The parenting plan in place at the time of calculation provided that Mother
had 228 overnight visits with T.W. and 280 overnight visits with B.W. The lower courts
divided the number of overnights by 365 (days in a year). After this calculation, Mother’s
relative custodial responsibility percentages equated to sixty-three percent (63%) for T.W.
and seventy-seven percent (77%) for B.W. Because seventy percent (70%) is the number
that constitutes a significant majority under W. Va. Code § 48-9-403(d)(1) (LexisNexis
2015), Mother was deemed to be exercising a significant majority of custodial
responsibility for B.W. only.
                                            4
the family court went on to hold that because Mother “made no attempt to obtain more

lucrative employment in the North Central West Virginia Area[,]” her focus was on

removing herself from Father’s immediate area and not on improving her employment.



               The family court entered its final order on August 14, 2017, which gave

Mother less than twenty-four hours to return to Harrison County so the children could

begin school the following day. At that time, Mother did not have a residence in West

Virginia for the children and was unemployed, due to having to relocate back to West

Virginia, and quit her new Kentucky job. In September of 2017, Mother filed a petition

for appeal of the family court’s order in the Circuit Court of Harrison County. In

November of 2017, the circuit court held a hearing on the appeal, after which it denied her

petition for appeal and affirmed the family court’s Order denying her petition for

modification. It is from this ruling that Mother now appeals.



                                            II.

                              STANDARD OF REVIEW

               Mother asks this Court to review the decision by the Circuit Court of

Harrison County, denying her petition for appeal and affirming the family court’s order

denying her petition for modification. Our standard of review of the circuit court’s order

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
                                            5
              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).

Syl. pt. 1, Storrie v. Simmons, 225 W. Va. 317, 693 S.E.2d 70 (2010) (per curiam) (internal

quotation marks omitted). With this standard in mind, we now address the arguments

presented.



                                            III.

                                      DISCUSSION

              Although Mother asserts six separate assignments of error, these issues will

be addressed in three distinct sections.5 Thus, we first address Mother’s challenge that the

lower courts failed to review the evidence of caretaking functions when addressing each

party’s percentage of custodial responsibilities. We will then address Mother’s assignment

of error based upon the circuit court’s affirmation of the family court’s refusal to allow

permanent relocation, and her argument pertaining to the awarding of attorney’s fees.



              Further, because this case is heavily focused on interpreting the statutory

provisions of West Virginia Code § 48-9-1 et seq., we are mindful that “[t]he primary



              5
               Mother’s assignments of errors A, B, C, and D are based on subparts of
W. Va. Code § 48-9-403 (“Modification of Parenting Plan – Relocation of a Parent”). As
such, we address those four assignments of error under the umbrella of a W. Va. Code
§ 48-9-403 analysis.
                                            6
object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361

(1975). In determining the intent of the Legislature, we “look first to the statute’s language.

If the text, given its plain meaning, answers the interpretive question, the language must

prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t, 195

W. Va. 573, 587, 466 S.E.2d 424, 438 (1995). Moreover, statutory construction is

necessary to ascertain the meaning of undefined words and phrases. “In the absence of any

definition of the intended meaning of words or terms used in a legislative enactment, they

will, in the interpretation of the act, be given their common, ordinary and accepted meaning

in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v. Hix, 123

W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v.

Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).



                             A. West Virginia Code § 48-9-403

              Under West Virginia Code § 48-9-403(c), when parental relocation affects

the custodial responsibilities currently being exercised by each parent, the courts will, “if

practical, revise the parenting plan so as to both accommodate the relocation and maintain

the same proportion of custodial responsibility being exercised by each of the parents.”

However, if it is not “practical” to maintain the same proportion, then the courts will

“modify the parenting plan in accordance with the child’s best interests and in accordance




                                               7
with the principles” set forth in in West Virginia Code § 48-9-403(d)(1-4).6 Accordingly,

it is well-established that if a parent is

              exercising a significant majority of the custodial responsibility
              for the child [that parent] 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 [or] . . . to pursue a significant
              employment or educational opportunity.

W. Va. Code § 48-9-403(d)(1) (emphasis added). If the relocation is found to be in “good

faith for a legitimate purpose and to a location that is reasonable in light of the purpose,”

but no parent has been exercising a significant majority of custodial responsibility, then

“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. at § 48-9-403(d)(2). However, if the court finds the proposed relocation is not in good

faith for a legitimate purpose then

               the court may modify the parenting plan in accordance with the
               child’s best interests and the effects of the relocation on the
               child. Among the modifications the court may consider is a
               reallocation of primary custodial responsibility, effective if and
               when the relocation occurs, but such a reallocation shall not be

               6
                The introductory language of W. Va. Code § 48-9-403(d) provides in full:
“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 [set forth in
subparts 1-4].” We will discuss the various subparts of § 48-9-403(d) throughout this
opinion in due course with our analysis of each of the parties’ arguments and assignments
of error.
                                              8
              ordered if the relocating parent demonstrates that the child’s
              best interests would be served by the relocation.

Id. at § 48-9-403(d)(3).

              In light of this framework, we now turn to the facts presented to determine

whether the respective lower courts properly applied the provisions of West Virginia Code

§ 48-9-403 when denying Mother’s petition to relocate with her children.



              1. Significant custodial responsibility. In her appeal, Mother argues that

that lower courts erred in failing to review evidence of caretaking functions when

determining custodial responsibility.      According to our statutory framework, “[i]n

determining the proportion of caretaking functions each parent previously performed for

the child under the parenting plan before relocation, the court may not consider a division

of functions arising from any arrangements made after a relocation but before a

modification hearing on the issues related to relocation.” W. Va. Code § 48-9-403(e).



              Mother contends that the lower courts failed to review the evidence of the

proportion of caretaking functions she performed for the two children prior to her

relocation, which she asserts was seventy percent (70%) or more. Rather than examine the

caretaking functions performed by both parties, the lower courts simply counted overnight

visits. Once overnight visits were calculated, it was determined that Mother had the

majority of custodial responsibility for the daughter, but not for the son.




                                             9
              Father responds that the lower courts properly found that Mother did not

exercise the majority of custodial responsibility for their son. According to Father, Mother

erroneously contends that courts should apply caretaking functions, as defined by West

Virginia Code § 48-1-210, in determining the parties’ respective percentages of custodial

responsibility. Father explains that if the Legislature intended for courts to consider

caretaking functions when calculating custodial responsibility, then it would have been a

simple matter for it to make a cross-reference in the Code; yet, it did not do so.



              However, after a thorough review of the governing law, we find nothing that

states a court can use only overnight visits when calculating custodial responsibility. In

fact, the West Virginia Code specifically provides that “custodial responsibility refers to

physical custodianship and supervision of a child. It usually includes, but does not

necessarily require, the exercise of residential or overnight responsibility.” W. Va. Code

§ 48-1-219 (LexisNexis 2015) (emphasis added).



              We agree with Mother’s contention that the lower courts should have

considered caretaking functions when determining the percentage of her custodial

responsibility. In analyzing the “significant majority of custodial responsibility” of the two

children at issue, the lower courts ignored the clear language of the statute and made

contradictory findings based on the wrong criteria. Specifically, the family court relied

solely on the number of overnight visits each parent had per the agreed parenting plan

because it found that “the West Virginia child support formula is based upon a counting of
                                             10
overnights. . . .” Therefore, the family court “assume[d] that the significant majority

calculation should also be based on overnights as there is no statutory guidance nor court

decision of record otherwise.” However, this reasoning is clearly erroneous. This case has

nothing to do with child support, and, as such, clarified guidance is needed as to the

determination of custodial responsibility for the purposes of W. Va. Code § 48-9-403.



              Here, when counting overnight visits, the lower courts found that Mother

exercised a majority of the custodial responsibility for the daughter, but not for the son.

However, if the courts had considered the caretaking functions performed by both parties,

it would have been evident that Mother exercised the majority of custodial responsibility

for both children because she was primarily responsible for the children’s education,

transportation, medical visits, extracurricular activities, and daily care. At the hearings

below, Mother presented several witnesses including school personnel and medical

professionals, who all testified to her participation in school events and activities, as well

as to issues with Father’s failure to administer medications to the children. Mother also

testified extensively7 to instances where she was required to assume Father’s

responsibilities under the parenting plan, including picking the children up from school on

days Father had custody and taking the son to extracurricular activities that Father was




              7
               In Respondent’s Brief, Father did not include any statement of facts or any
other section detailing his version of the underlying facts in this matter. Furthermore,
Father repeatedly notes in his Brief that many of the facts are “unrebutted” or
“uncontested.”
                                             11
scheduled to attend with the child. She also testified to instances where Father refused to

care for the children as scheduled.



              In its current form, the parental relocation statute provides limited guidance

on how to calculate custodial responsibility. In fact, other than stating that seventy percent

constitutes a significant majority, the Legislature has never defined the criteria examined

when calculating significant custodial responsibility. Nevertheless, we find some guidance

in West Virginia Code § 48-9-206 (LexisNexis 2015):

                      If the court is unable to allocate custodial responsibility
              under § 48-9-206(a) of this code because the allocation under
              § 48-9-206(a) of this code would be harmful to the child, or
              because there is no history of past performance of caretaking
              functions, as in the case of a newborn, or because the history
              does not establish a pattern of caretaking sufficiently
              dispositive of the issues of the case, the court shall allocate
              custodial responsibility based on the child’s best interest,
              taking into account the factors in considerations that are set
              forth in this section and in § 48-9-209 and § 48-9-403(d) of this
              code and preserving to the extent possible this section’s
              priority on the share of past caretaking functions each parent
              performed.

(Emphasis added). From this excerpt, it is evident that the Legislature took note of the

interconnectedness of custodial responsibility and caretaking functions. As previously

noted, in the present case, the lower courts simply counted overnight visits. However,

after a careful review of Chapter 48 – Article 9 of the West Virginia Code, the body of

case law pertaining to this chapter of the code, we find it is necessary to clarify this issue.

While overnight visits can provide an important starting point, custodial responsibility

consists of much more than merely providing a shelter for overnight visits. Rather, the
                                              12
Legislature has specifically recognized that custodial responsibility encompasses the

essential functions of parenthood such as:

                             (1) Performing functions that meet the daily
                    physical needs of the child. These functions include,
                    but are not limited to, the following:
                                   (A) Feeding;
                                   (B) Dressing;
                                   (C) Bedtime and wake-up routines;
                                   (D) Caring for the child when sick or hurt;
                                   (E) Bathing and grooming;
                                   (F) Recreation and play;
                                   (G) Physical safety; and
                                   (H) Transportation.
                            (2) Direction of the child’s various
                    developmental needs, including the acquisition of motor
                    and language skills, toilet training, self-confidence and
                    maturation;
                            (3) Discipline, instruction in manners,
                    assignment and supervision of chores and other tasks
                    that attend to the child’s needs for behavioral control
                    and self-restraint;
                            (4) Arrangements for the child’s education,
                    including remedial or special services appropriate to the
                    child’s needs and interests, communication with
                    teachers and counselors and supervision of homework;
                            (5) The development and maintenance of
                    appropriate interpersonal relationships with peers,
                    siblings and adults;
                            (6) Arrangements for health care, which includes
                    making medical appointments, communicating with
                    health care providers and providing medical follow-up
                    and home health care;
                            (7) Moral guidance; and
                            (8) Arrangement of alternative care by a family
                    member, baby-sitter or other child care provider or
                    facility, including investigation of alternatives,
                    communication with providers and supervision.

W. Va. Code § 48-1-210 (LexisNexis 2015). Accordingly, we hold that for purposes of

the parental relocation statute, West Virginia Code § 48-9-1 et seq., “custodial
                                             13
responsibility” includes duties innate to parenthood such as those defined as caretaking

functions in West Virginia Code § 48-1-210 (LexisNexis 2015).



              Because it is appropriate for caretaking functions to be taken into

consideration when calculating the proportion of each parent’s custodial responsibility, it

is clear that the lower courts erred by considering only each parent’s overnight visits with

the children. Based on the evidence presented below, when caretaking functions are

considered, it becomes evident that Mother unquestionably exercised the significant

majority of custodial responsibility (more than seventy percent) for both children.8



              8
                 By focusing entirely on the number of overnight visits in the agreed
parenting plan, the lower courts ignored the fact that Mother provided most of the
caretaking responsibilities for the children, regardless of the overnight schedule in the
plan. Even assuming, arguendo, that Father exercised more than thirty percent of the
parenting time for one child, the question becomes how to address the best interests of
both children, not just one in isolation as the lower courts did. Instead of averaging the
children’s time together or considering the best interests of both children, the lower courts
chose to ignore the daughter’s best interests entirely by hypothetically analyzing only
those of the son. Although this Court does not direct parties to conduct an averaging of
each party’s percentage of custodial allocation, we would like to take this opportunity to
emphasize the importance of sibling relationships. “In our case law, we have [ ] developed
a policy that stable relationships should be preserved whenever feasible. We have held
that the best interests of the child often include being kept with his or her siblings.” State
ex rel. Treadway v. McCoy, 189 W. Va. 210, 213, 429 S.E.2d 492, 495 (1993) (citing
James M. v. Maynard, 185 W. Va. 648, 658, 408 S.E.2d 400, 410 (1991)). See also
Frankel v. Frankel, 209 W. Va. 587, 590, 550 S.E.2d 377, 380 (2001) (per curiam)
(“Likewise, we have recognized the importance of keeping siblings together.”); Kirby v.
Fox, 206 W. Va. 497, 526 S.E.2d 19 (1999) (per curiam) (finding that siblings in a post-
divorce custody battle should be kept together because of their close relationship).
Accordingly, we strongly encourage family and circuit courts to be mindful of sibling
relationships when addressing the relocation of a parent or other issues that may impact
the strong bond of siblings.

                                             14
Accordingly, we find that the lower courts committed reversible error when they failed to

consider evidence of caretaking functions when calculating custodial responsibility.



              2. “Good faith for a legitimate purpose.” Mother next argues that the

lower courts committed reversible error when they determined that her proposed relocation

was not in good faith. The lower courts looked to the language of the statute and found

that Mother’s relocation to Kentucky for a better paying job was indeed for a legitimate

purpose. However, in the order denying modification of custodial allocation, the family

court reasoned that “because of Mother’s lack of attempts to obtain local employment, the

Court does not find that the relocation would be in good faith, nor is there any evidence to

support that the location is reasonable in light of the purpose.”



              In his brief, Father argues that the lower courts properly determined that

Mother’s proposed relocation was not in “good faith for a legitimate purpose” because she

failed to conduct a proper job search in the Harrison County area. Father alleges that

Mother limited her job search when seeking jobs in West Virginia (sought jobs in her

chosen field), but widened her job scope when searching for jobs in Kentucky (looked

outside of her chosen field). Father contends that Mother’s calculated job search is the

reason she found numerous opportunities in Kentucky, and also the reason that her

relocation was not being sought in “good faith.”




                                             15
              Under West Virginia Code § 48-9-403(d)(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.

(Emphasis added). After examining the plain language of the statute, it is clear that “when

the factors set forth in subsection (1) [of W. Va. Code § 48-9-403(d)] are met, the Court

should allow the parent who has been exercising the significant majority of custodial

responsibility to relocate with the children, and shall modify the parenting plan

accordingly, in a manner that is in the children’s best interests.” Storrie v. Simmons, 225

W.Va. 317, 325, 693 S.E.2d 70, 78 (2010) (per curiam) (emphasis in original). Although

not stated in express terms, it is evident that the statutory language creates a presumption

of reasonableness when the relocation is found to be legitimate. To bring clarity to this

issue, we now expressly hold that pursuant to West Virginia Code § 48-9-403(d)(1), if a

parent who is exercising a significant majority of the custodial responsibility for a child


                                             16
proves that a proposed relocation is in good faith for a legitimate purpose, the location of

the proposed move will be presumed to be reasonable. To overcome this presumption, the

opposing parent must prove that the purpose of the move is substantially achievable

without moving or by moving to a location that is substantially less disruptive of the

opposing parent’s relationship to the child.



               In this case, as stated above, the family court found that Mother’s proposed

relocation was legitimate, but not “reasonable.” However, Father failed to present any

evidence to illustrate unreasonableness. Therefore, the initial finding of legitimacy was

not rebutted, and the circuit court erred in concluding that Mother did not seek relocation

that was “reasonable in light of the purpose.” Because Mother showed that her proposed

relocation was legitimate, the burden should have shifted to Father to show that the purpose

of Mother’s relocation could have been achieved by not moving, or by staying near

Harrison County. The lower courts’ findings that Mother’s request to relocate was

legitimate but not done in good faith or otherwise reasonable is contrary to the

preponderance of the evidence that her economic opportunities in Kentucky more than

doubled her income available in West Virginia; that she had a support network of family

and friends in Kentucky; and that she gave as much notice as practicable in light of Father’s

refusal to go to mediation in March of 2017. Specifically, the family court found as

follows:

                    Based upon the clear language of the statute, which
              does not include any requirement to seek comparable
              employment where [Father] resides, the Court finds that
                                               17
              [Mother]’s relocation to Kentucky for the job she has procured
              is for a legitimate purpose. However, because of [Mother]’s
              lack of attempts to obtain local employment, the Court does not
              find that the relocation would be in good faith, nor is there any
              evidence to support that the location is reasonable in light of
              the purpose – particularly because it was unreasonable to not
              look for improved employment in Harrison and surrounding
              counties. [Mother] failed to show that the alleged purpose of
              her move, an increase in income, would not be substantially
              achievable without the move.

The lower courts’ findings that Mother’s relocation was not reasonable required an

erroneous application of the applicable statute and the evidence presented.



              First, the unrebutted evidence, ignored by both courts, is that Mother

searched for employment in areas of reasonable proximity to Harrison County in

November and December of 2016 before ultimately accepting a position in the Harrison

County area. Once it became clear that she had minimal parenting support from Father,

Mother sought employment in Kentucky where her friends, brother, and nephews resided

and with whom she maintained a strong bond over the years.9 Father proposed certain

exhibits that included potential jobs for Mother, but during the August 1, 2017 hearing,

she testified that she lacked the requisite qualifications for all the jobs Father suggested.10


              9
               This Court previously has found that relocations to be near family is a
legitimate purpose under the statute. See, e.g., Robert W. v. Paulette W., No. 15-1010,
2016 WL 2971191 (W. Va. May 20, 2016) (memorandum decision) (“West Virginia Code
§ 48-9-403(d)(1) provides that in such situations, a parent can relocate for a legitimate
purpose to be with ‘significant family or other support network.’”).
              10
                 At the August 1, 2017 hearing, Mother provided testimony as to
employment positions in West Virginia, which were suggested by Father in a potential
exhibit provided to her attorney before the hearing; however, the exhibit was not filed in
                                              18
Thus, because of the limited employment opportunities related to her skillset in the area,

Mother’s relocation to Kentucky was reasonable to achieve the purpose of advancing her

economic opportunities. There is little evidence to support the lower courts’ finding that

Mother failed to timely and actively search for employment in North Central West

Virginia, given her extensive search in November and December of 2016 – just a few

months before her notice of relocation was filed.



              Second, it is unrebutted that when Mother moved to Kentucky after the sale

of the marital home, she lived with her close friends for a week before moving in with her

brother pending a final ruling from the family court. As such, it is clear that her friends

and family provided her with a strong support system in Kentucky. Despite this evidence,

the family court somehow concluded that there was insufficient evidence to suggest

Mother had a support network in Kentucky.



              After a thorough review of this State’s law, we are unable to find cases or

statutes that specifically define what constitutes a good faith relocation. We find the

family court’s application of the term “good faith relocation” in this case to be misguided.

Cf. Storrie, 225 W.Va. 317, 325, 693 S.E.2d 70, 78 (2010) (per curiam) (“[T]he family

court ignored the clear statutory directive that permits a parent who has been exercising a




the record or offered into evidence during said hearing. Further, the jobs identified by
Father were in Wood County, Monongalia County, Pennsylvania, and Connecticut—not
Harrison County.
                                            19
substantial majority of custodial responsibility to relocate with the child when the move

is legitimate and reasonable.”). The Storrie Court wisely avoided attempting to define

good faith, given its amorphous meaning. See Black’s Law Dictionary, 693 (6th ed. 1990)

(“Good faith is an intangible and abstract quality with no technical meaning or statutory

definition, and it encompasses, among other things, an honest belief, the absence of malice

and the absence of design to defraud or to seek an unconscionable advantage. . . .”).



              By January of 2017, it was clear that, despite his new, flexible job, Father

did not intend to help Mother with the children, given that she continued to provide all

medical and educational care for the children, in addition to most of the transportation to

both children’s extracurricular activities. In fact, as early as November of 2016, Father

indicated that he expected Mother to pick the children up from school on his custodial

days. Mother offered to mediate these issues in March of 2017, but Father refused.



              Given these circumstances, Mother’s stated desire to relocate to Kentucky

to be near a support network to help her care for the children warrants a finding of “good

faith” and “reasonableness.” Because this Court finds that the unrebutted evidence shows

Mother’s relocation was legitimate and in good faith, the lower courts clearly erred in

denying her request.11


              11
                  In light of our holding that the lower courts erred in denying Mother’s
petition for relocation, we need not address Father’s contention that the family court erred
by failing to adopt his proposed parenting plan. Further, after reviewing Father’s cross-
assignment of error in which he argues that the family court erred in denying his motion to
                                            20
               B. Refusal to Uphold Relief Sought in Temporary Order

             Given that the family court had already modified the parenting plan on a

temporary basis to permit Mother to sell the marital home and begin employment in

Kentucky, Mother contends that the ultimate denial of her request to relocate was clear

error. She argues that this is especially true when considering the effect on the children

of forcing Mother to return to West Virginia the day before school began with no home or

employment. Further, evidence from a psychologist showed that the children should be

established in their new residence prior to the school year, which could not be achieved

under the family court’s timeline. Despite Mother’s reliance on the temporary summer

parenting plan, this Court does not find that the lower courts erred when they entered a

final order denying Mother’s relocation simply because the temporary order

accommodated Mother’s relocation.



             By amending the parenting plan to provide for alternate weeks of custody,

the summer parenting plan gave Mother the flexibility to move to Kentucky to begin her

new employment. After quitting her job in West Virginia and beginning her employment

in Kentucky, she was successful in obtaining financing for a new home and made a

monetary deposit thereon. However, despite her earnest efforts, Mother ignored the fact


dismiss based upon Mother’s failure to comply with the relocation notice requirements of
W. Va. Code § 48-9-403(b), we find that the lower courts did not abuse their discretion by
refusing to grant his motion to dismiss. West Virginia Code § 48-9-403(b) is clear in
describing the notice requirements for parental relocation, and after considering the
specific facts of this case, we find that the lower courts properly found Mother’s notice
substantially complied with said requirements.
                                           21
that the temporary parenting plan was a limited-in-time modification done for the

children’s summer vacation. Essentially, Mother erroneously relied on the family court’s

summer parenting plan in moving to Kentucky to start her new employment and purchase

a home—all the while ignoring that this temporary plan would naturally expire in August

of 2017, regardless of the family court’s final decision.



              In short, the family court’s ruling does not amount to an abuse of discretion,

considering that the summer parenting plan had a definitive expiration date. Mother took

a risk when she decided to relocate based upon a temporary plan, and, unfortunately, the

court’s ultimate decision did not end in her favor. While this Court understands the effect

that it had on her life and the lives of her children, the court was under no duty to grant a

permanent relocation simply because it issued a temporary modification of the plan that

accommodated her relocation. As such, this Court finds no error.



                 C. Attorney’s Fees under West Virginia Code § 48-1-305

              Lastly, Mother argues that the lower courts erred by failing to order Father

to pay her attorney’s fees under West Virginia Code § 48-1-305 (LexisNexis 2015).

Particularly, Mother contends that an award of attorney’s fees is warranted because Father

has “asserted unfounded claims or defenses for vexatious, wanton, or oppressive

purposes.” West Virginia Code § 48-1-305. We find this argument to be without merit.




                                             22
              “‘The decision to award or not to award attorney’s fees rests in the sound

discretion of the circuit court, and the exercise of that discretion will not be disturbed on

appeal except in cases of abuse.’ Syl. pt. 2, in part, Beto v. Stewart, 213 W. Va. 355, 582

S.E.2d 802 (2003).” Syl. pt. 1, Murthy v. Karpacs-Brown, 237 W. Va. 490, 788 S.E.2d

18 (2016). More specifically, “the imposition of attorney fees is a matter within the family

court’s discretion.” E.O.R. v. M.D.W., No. 17-0355, 2018 WL 1218023 (W. Va. Mar. 8,

2018) (memorandum decision). Under West Virginia Code § 48-1-305(b):

                     (b) The court may compel either party to pay attorney’s
              fees and court costs reasonably necessary to enable the other
              party to prosecute or defend the action. . . .

                     (c) When it appears to the court that a party has incurred
              attorney fees and costs unnecessarily because the opposing
              party has asserted unfounded claims or defenses . . . the court
              may order the offending party . . . to pay reasonable attorney
              fees and costs to the other party.

(Emphasis added). From a review of the evidence, we do not find that Father’s claims

were “unfounded,” “vexatious,” “wanton,” or “oppressive.” The family court acted within

its discretion in not ordering Father to pay attorney’s fees, and, as such, this Court finds no

error.



                                             IV.

                                      CONCLUSION

              For the reasons explained in the body of this opinion, the order of the Circuit

Court of Harrison County entered December 7, 2017, is hereby reversed, and this matter is


                                             23
remanded for entry of an order granting Mother’s petition for modification and establishing

a new parenting plan that allows Mother to relocate.

                                                                 Reversed and Remanded.




                                           24
