Michael S. v. Ashley B.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
MICHAEL S., June 15, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-23 (Fam. Ct. Kanawha Cnty. No. 10-D-2057)

ASHLEY B.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Michael S.1 appeals the “Order Denying Petition for Modification”
entered by the Family Court of Kanawha County on December 15, 2022. Michael S. asserts
that the family court erroneously denied his petition for modification; however, he raised
no appealable issues in his notice of appeal or in his brief. Respondent Ashley B. filed a
timely response in support of the family court’s decision.2 Michael S. did not file a reply
brief.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Michael S. and Ashley B. share one child, C.S., now age twelve. In 2017, the parties
shared 50-50 custody. After several filings in family court, Ashley B. was granted full
custodial responsibility and decision-making authority in August 2019. In 2021, the child
expressed to the appointed guardian ad litem that she was not interested in having parenting
time with Michael S. A final hearing was held on August 23, 2021, during which the family
court ordered Michael S. and C.S. to attend reunification counseling. The reunification
counseling was successful and C.S. agreed to have parenting time with Michael S. every

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Both parties are self-represented.

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other Sunday from 9:00 a.m. to 5:00 p.m., with the paternal grandmother supervising all
visits.

On November 7, 2022, Michael S. filed a petition for modification of the parenting
plan, wherein he requested shared decision-making and additional parenting time,
unsupervised. As support for his petition for modification, he contended that the
reunification therapist recommended additional parenting time.

The custody modification hearing was held on December 14, 2022. During the
hearing, the reunification therapist testified that, contrary to Michael S.’s beliefs and
testimony, she did not recommend additional parenting time because the child did not
desire to have additional time with Michael S. The family court entered its final order
denying Michael S.’s petition for modification on December 15, 2022, wherein it found as
follows: (1) the reunification therapist testified that she did not recommend additional
parenting time, and (2) Michael S. did not prove that there had been a substantial change
in circumstances. It is from the December 15, 2022, order that Michael S. now appeals.

Our standard of review in this matter is as follows:

“In reviewing . . . 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., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va. __, __, __ S.E.2d __, __, 2022 WL
17098574, at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005)
(specifying standards for appellate court review of family court order).

On appeal, Michael S. raises various points of contention about events that took
place years ago and are not relevant to this matter.3 Michael S. raises no appealable issues
from the family court’s December 15, 2022, order, and his brief consists merely of his
disagreement with how the proceedings below were conducted. Further, Michael S. fails
to cite any authority or provide support for his arguments. The family court did not abuse
its discretion when it found that Michael S. did not prove there had been a substantial
change in circumstances. As such, we find no basis in law to warrant relief.

3
In his appeal, Michael S. requested that the family court judge be recused.
However, this Court does not have jurisdiction to address the request for recusal. The
process to seek to disqualify a judge is set forth in Rule 17 of the West Virginia Trial Court
Rules, pursuant to Rule 58(a) of the West Virginia Rules of Practice and Procedure for
Family Court.

2
Accordingly, we affirm the family court’s December 15, 2022, order.

Affirmed.

ISSUED: June 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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