                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Robert W.
Respondent Below, Petitioner                                                      FILED
                                                                                May 20, 2016
vs) No. 15-1010 (Braxton County 11-D-53)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Paulette W.
Petitioner Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Father Robert W.,1 by counsel James Wilson Douglas, appeals the September
22, 2015, order of the Circuit Court of Braxton County granting respondent’s appeal of a May
11, 2015, order of the Family Court of Braxton County. Respondent Mother Paulette W., by
counsel Robert M. Williams, filed a response in support of the circuit court’s order.

        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 June 23, 2004. Two children, E.W. and M.W., were born
during the parties’ marriage. In November of 2010, the parties separated. Thereafter, on March
18, 2013, the parties were divorced. In the final divorce order, respondent mother was designated
as the residential parent of the parties’ children and they reside with her in West Virginia.2 In
2012, respondent mother began a relationship with R.C., a native of Louisiana, who was working




       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
         Petitioner father is a resident of the State of North Carolina. A parenting plan was
established between the parties wherein petitioner father would have custody of the children for
three weeks in the summer, followed by a two week period, and then another three week period,
as well as reasonable visitation with the children when petitioner father was in West Virginia.


                                                1

temporarily in West Virginia. Respondent mother and R.C. have two children together and those
children have, since their birth, resided with E.W., M.W., and respondent mother.3

        On May 8, 2014, respondent mother filed a notice of relocation seeking to relocate the
parties’ children from Braxton County to Louisiana. Petitioner father filed an objection to the
notice of relocation and, on April 1, 2015, a hearing was held before the Family Court of Braxton
County.4 During the hearing, respondent mother testified that she wished to move to Louisiana to
be with the father of her younger children.5 Respondent mother further testified that R.C.
financially supports her and her children and that if she relocated to Louisiana, R.C. would be
able to work on-shore full-time and earn $40.00 per hour. R.C. did not testify at the hearing. The
only testimony presented to the family court regarding R.C.’s job opportunity in Louisiana was
offered by respondent mother.

        By order entered May 11, 2015, the family court denied respondent mother’s request to
relocate to Louisiana. The family court’s order noted that R.C. did not testify at the hearing
regarding his employment opportunity in Louisiana.6 Respondent mother appealed the family
court’s order to the circuit court. By order entered September 22, 2015, the circuit court reversed
the family court’s order and approved respondent mother’s relocation to Louisiana with the
parties’ children.7 The circuit court found that respondent mother was a competent witness
regarding the issue of R.C.’s employment opportunity and that respondent mother had, by her
testimony at the hearing, presented sufficient evidence to support the relocation. In reversing the
family court’s ruling, the circuit court held that respondent mother’s requested relocation was for




       3
      R.C. works for a Louisiana-based company and frequently works in West Virginia.
When he is not working, R.C. resides with petitioner and her children in Braxton County.
       4
         Along with his objection to respondent mother’s notice of relocation, petitioner father
filed a counter-petition for contempt against respondent mother seeking enforcement of the
visitation schedule in the parties’ parenting plan. The family court found respondent mother in
contempt as to petitioner father’s missed summer visitation with the parties’ children. Neither
party appealed the family court’s ruling on petitioner’s contempt motion.
       5
           Respondent is not employed and is the primary caregiver for all four of her children.
       6
         The crux of the family court’s reasoning in denying respondent mother’s notice of
relocation was that respondent mother did not satisfy the statutory prerequisites of West Virginia
Code § 48-9-403(d)(1) through her proffer of hearsay testimony and the absence of corroborating
documentary evidence related to R.C.’s new job opportunity.
       7
         The circuit court did not hold a hearing on respondent mother’s appeal of the family
court’s decision.



                                                   2

a legitimate purpose and reasonable in light of that purpose.8 It is from the circuit court’s
September 22, 2015, order that petitioner father now appeals.

       Our review of the circuit court’s order is governed by the following standard:

               “[i]n reviewing a final order entered by a circuit court judge upon a review
       of, or upon a refusal to review, a final order of a family court judge, we review the
       findings of fact made by the family court judge under the clearly erroneous
       standard, and the application of law to the facts under an abuse of discretion
       standard. We review questions of law de novo.”

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

      Modifications of parenting plans to address the relocation of a parent are governed by
West Virginia Code § 48-9-403(d)(1), which provides that

       [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.

        In his appeal, petitioner father raises one assignment of error – that the circuit court erred
in finding that respondent mother proffered sufficient direct evidence to meet the requirements of
West Virginia Code § 48-9-403(d)(1). Conversely, respondent mother argues that she proffered
sufficient evidence to permit her relocation with the parties’ children. Based upon our review of
the record before us, we agree with respondent mother.




       8
         The circuit court ruled that R.C.’s job opportunity provided a good salary and would
allow him to spend more time with respondent mother and their two children and would keep the
parties’ children with their half-siblings. Further, the circuit court noted that the visitation
schedule proposed by respondent mother would provide petitioner father with a similar amount
of time with E.W. and M.W. during the summer.


                                                  3

        It is undisputed that respondent, a stay-at-home mother, is the primary residential
caregiver of the parties’ children and she has exercised a significant majority of custodial
responsibility. 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.” At the
hearing on her notice of relocation, respondent mother testified that the requested relocation
would permit R.C. (the father of respondent mother’s two younger children) to transfer to a job
that would allow him to spend more time with respondent mother and her children and provide
the family with a generous income. We concur with the circuit court’s findings and agree that
respondent mother proffered sufficient evidence to establish a legitimate purpose for relocation,
that the relocation was reasonable in light of that purpose, and that the relocation is in the best
interest of the parties’ children as it would allow them to remain with their half-siblings.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 20, 2016

CONCURRED IN BY:

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




                                                4

