Mark P. v. Jennifer P.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MARK P.,
October 28, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-24 (Fam. Ct. Kanawha Cnty. Case No. 22-D-839)

JENNIFER P.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Mark P.1 (“Father”) appeals the Family Court of Kanawha County’s
December 19, 2023, Amended Final Modification Order which denied his petition for
modification on the basis that his change in employment location did not constitute a
substantial change of circumstances and the modification was not otherwise in the
children’s best interest. Respondent Jennifer P. (“Mother”) filed a response in support of
the family court’s order.2 Father did not file a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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.

The parties share two minor children. The parties were divorced by final order
entered November 22, 2022. Per the final divorce order, the parties agreed to continue the
parenting arrangement entered by the family court in its temporary order. Pursuant to the
temporary order, Father was to exercise parenting time three weekends per month, from
Thursday at 7:00 p.m. until Saturday at 7:00 p.m.

On September 19, 2023, Father filed his petition for modification which requested
a 50-50 custodial allocation, or, in the alternative, his weekends be modified to Friday to

1
To protect the confidentiality of the juveniles 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
Father is represented by G. Wayne Van Bibber, Esq. Mother is represented by
Erica Lord, Esq.

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Monday morning.3 The basis for the petition was that when the final divorce order was
entered, Father was working out of town and therefore could not transport the oldest child
to school and could not exercise parenting time in the evenings. However, since entry of
the divorce order, Father’s job now allowed him to be home most evenings and Father had
remarried. The petition alleged that such facts were not known or had arisen since entry of
the final divorce order. Mother responded to the petition and noted that Father’s new wife
lives in Morgantown, West Virginia, approximately two and a half hours from Kanawha
County, where the children reside, and therefore the new wife could not assist with
transporting the children to school and daycare.

On December 11, 2023, the family court held a hearing on the petition. Both parties
appeared with counsel. Mother’s attorney argued that the petition was motivated purely by
Father’s financial interest. She went on to note that Father has been employed by an
elevator company for years and he has always had to travel for work, sometimes out of
state. Mother’s attorney pointed out that Father did not, and could not, testify that his
current circumstance of being able to be home for the children would last beyond his
current assignment. Mother’s attorney further pointed out that changing the custodial
allocation in the middle of the school year was not in the best interest of the children or
their stability. Father testified that he would be able to get the children to and from school
and they would not have to change schools if the modification was granted. Father also
testified that his wife moving to the Charleston, West Virginia, area was contingent upon
the modification being granted.

On cross-examination, Father testified that he was currently working on a job in
Bridgeport, West Virginia, which is about an hour and a half away, and he has to be on-
site by 7:30 a.m. and would get off at 4:30 p.m. He admitted that this would prevent him
from dropping the children off and picking them up from school, but he stated that his
family and new wife would help get the children to and from school. He also admitted that
while his next job would be in Charleston, West Virginia, it would only last about eight
weeks after which time he would be working approximately an hour away in Logan, West
Virginia, and does not know where his next job will be until the equipment for the job is
delivered to the job site. Mother testified about prior issues with Father exercising his
previously granted parenting time. She testified that she would agree to a modification of
the weekends to reflect the alternative request Father made in his petition. However, she
testified that she was opposed to a 50-50 custodial allocation because their oldest child
struggles in school due to her Attention Deficit Hyperactivity Disorder which required
special care. Mother testified that disrupting the child’s schedule would not be in her best
interest.

3
The attorney who drafted the petition is not the attorney who appeared on behalf
of Father at the hearing.

2
The family court noted from the bench that Father’s testimony that his new wife’s
move to Charleston was contingent upon the petition being granted was troubling, as it
made part of the basis for the petition prospective only, and thus called into question
Father’s credibility in presenting the case. After the family court announced its ruling from
the bench, Father’s counsel attempted to move Father’s pay stubs into evidence, which the
family court denied because it was after the close of evidence.

Following the hearing, the family court entered its Amended Final Modification
Order. In that order, the family court found that Father did not meet his burden of proof to
show that there has been a substantial change in circumstances since the prior agreed upon
parenting plan. Specifically, the family court found that because Father was aware at the
time of the final divorce hearing that he had a specialized job in which his employment
conditions were likely to change, that when said employment conditions did actually
change, such change did not constitute facts that were not known or anticipated at the time
of the previous hearing. The family court further found that the proposed modification was
not in the children’s best interest and their stability would not be served by a 50-50
custodial allocation. The family court also noted that it denied entry of Father’s paystubs
into evidence and declined to modify child support. Ultimately, the family court denied the
petition for modification but did modify the parenting plan by agreement of the parties so
that Father exercised parenting time from Friday at 6 p.m. until Monday at 6 a.m. when
school is in session and from Friday at 6 p.m. until Monday at 6 p.m. when school is out.
It is from this order that Father appeals.

When reviewing the order of a family court, we apply the following standard of
review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Father first asserts that the family court erred by finding that Father’s
change in employment location did not amount to a substantial change in circumstances
justifying modification. We disagree. West Virginia Code §48-9-401(a) (2022) establishes
three criteria for change-in-circumstances modifications. First, the facts relevant to the
change in circumstances must not have been “known” or “anticipated” in the order that
established the custodial allocation. Second, the change in circumstances must be

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“substantial.” Finally, the modification must be “necessary to serve the best interests of the
child.” Jared M. v. Molly A., 246 W. Va. 556, 561, 874 S.E.2d 358, 363 (2022).

Here, Father specifically argues that the change in his employment location was not
anticipated in the final divorce order. While that may be true, Father does not offer any
explanation of how the remaining criteria of West Virginia Code §48-9-401(a) are satisfied.
Instead, Father argues, without citation to the record, that “the lower court erroneously and
prematurely ruled that the [Father]’s move was anticipated in the Final Divorce Order and
unable to be litigated at the final hearing.”4 Our review of the recording of the December
11, 2023, hearing establishes that the family court did not prevent Father from putting on
evidence that his change in employment location constituted a substantial change or that
modification was in the best interest of the children. Father simply failed to do so during
said hearing. Accordingly, the family court did not err in determining that Father failed to
meet his burden of proof to establish a modification of the parenting plan due to a
substantial change in circumstances.

Father next asserts that the family court erred by failing to apply the child support
guidelines to determine whether there had been a substantial change in circumstances
pursuant to West Virginia Code § 48-11-105 (2008) (providing for modification of a child
support order if application of the child support guidelines would result in a new order that
is more than fifteen percent different.) Again, we disagree. Father’s petition does not allege
that application of the child support guidelines would result in a new order that is more
than fifteen percent different. Indeed, Father’s petition does not assert any change in
income for either party. Rather, the request for modification of child support in Father’s
petition appears to be contingent on his petition being granted on the merits for a change
in circumstances. Accordingly, the family court did not err in this regard.

Next, Father asserts that the family court failed to make sufficient factual findings
to justify deviating from the presumption that a 50-50 custodial allocation is in the best
interest of the children. We disagree. Here, the family court was not required to make
findings justifying deviation from the 50-50 presumption because the threshold issue
before the family court was not setting a custodial allocation for the parties’ children; such
had already been accomplished by agreement of the parties and adopted by the family court
in the final divorce order. Rather, the issue then before the family court was whether a
modification of the existing custodial allocation was justified. Accordingly, since the
family court determined that Father failed to meet his burden of proof to establish a change-
of-circumstance modification, the family court did not err by failing to make findings
regarding deviation from the 50-50 presumption.

4
The Court notes that Father has the duty to support his arguments with citation to
authority as well as “appropriate and specific citations to the record . . .” W. Va. R. App.
P. 10(c)(7). Otherwise, “[t]he Intermediate Court . . . may disregard errors that are not
adequately supported by specific references to the record on appeal.” Id.

4
Finally, Father asserts that the family court erred by denying his modification of the
parenting plan and then modifying the parenting plan anyway. Again, we disagree. West
Virginia Code § 48-9-402 (2022) provides for modification of parenting plans without a
showing of changed circumstances when the parents have come to an agreement and the
agreement is voluntary and not harmful to the children or when the modification constitutes
a minor change and is in the best interest of the children. Here, Father, in his petition,
alternatively requested a modification of the parenting plan to alter his weekend custodial
time. Mother testified that she did not object to the alternative request. There was no
assertion below or on appeal that the agreement was not voluntary, was harmful to the
children, did not constitute a minor change, or was not in the best interest of the children.
Accordingly, the family court did not err by modifying the parenting plan to alter Father’s
weekend custodial time despite denying Father’s petition to modify.

Therefore, based on the foregoing, the December 19, 2023, Amended Final
Modification Order of the Family Court of Kanawha County is affirmed.

Affirmed.

ISSUED: October 28, 2024

CONCURRED IN BY:

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

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