Katelin C. v. Donovan C.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 6, 2025
KATELIN C., ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-473 (Fam. Ct. Nicholas Cnty. Case No. FC-34-2020-D-23)

DONOVAN C.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Katelin C.1 (“Mother”) appeals the Family Court of Nicholas County’s
October 30, 2024, order that granted Donovan C.’s (“Father”) petition for modification of
the parenting plan that permitted the paternal grandparents to have visitation with the
parties’ child at Father’s discretion. Father and the child’s guardian ad litem (“GAL”) filed
responses in support of the family court’s order.2 Mother 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 are the parents of one child, who was born in 2014. They share equal
50-50 custody of the child. In August of 2022, Mother filed a petition for modification,
which alleged that the paternal grandparents (“Grandparents”) abused and neglected the
child.3 CPS conducted an investigation, which included two separate forensic interviews

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
Mother is self-represented. Father is represented by Hannah Tothe, Esq. The GAL
for the child is Taylor Graham, Esq.
3
The petition for modification was not submitted to this Court on appeal.

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of the child. CPS found that the allegations were unsubstantiated. Nonetheless, on
December 27, 2022, the family court entered an order on Mother’s petition for modification
prohibiting contact between Grandparents and the child.

On March 1, 2023, Father filed a petition for modification, seeking to modify the
December 27, 2022, order. At some point, Grandparents filed a petition for visitation in a
separate civil matter. By agreed order entered March 14, 2024, Mother and Father agreed
that “issues surrounding the paternal grandparents shall be handled with this [c]ourt in
[Grandparents’] separate matter.”

On April 3, 2024, the family court held a final hearing in Grandparents’ case
regarding their contact with the child. Counsel for Mother represented to the court that the
matter should be dismissed. The court agreed and dismissed Grandparents’ separate civil
action.

On April 30, 2024, Father filed a motion for reconsideration of the family court’s
March 14, 2024, agreed order, asserting that Mother misrepresented the parties’ agreement
since she moved for the dismissal of Grandparents’ separate action. Father contended that
he would have never entered into the agreement had he known that Mother intended to
move to dismiss Grandparents’ visitation action.

After hearing argument on the matter, the family court entered an order on May 31,
2024, granting Father’s motion for reconsideration and setting aside the sentence in the
March 14, 2024, agreed order that stated the “issues surrounding the paternal grandparents
shall be handled with this [c]ourt in [Grandparents’] separate matter.” The court also
scheduled a final hearing for July 22, 2024, to relitigate whether Grandparents should be
permitted contact with the child. After a few continuances in the matter, the final hearing
was rescheduled to September 20, 2024.

On August 27, 2024, witnesses were subpoenaed to testify in person at the final
hearing. On September 13, 2024, Father filed a motion for licensed psychologist, Timothy
S. Saar, and clinical psychologist, Michael Morello, to appear telephonically, which the
court granted by order entered on September 16, 2024.

On September 20, 2024, the parties appeared for a final hearing on whether
Grandparents should be permitted contact with the minor child. After hearing testimony
and argument, the family court entered an order on October 30, 2024, finding the following:
the allegations against Grandparents were inconsistent; Mr. Morello’s testimony that the
child lied and was not credible was concerning; the GAL found the child to be credible and
recommended that it was in the child’s best interest to have no contact with Grandparents;
Dr. Saar testified that he believed the child had been influenced by Mother’s boyfriend,
Jeremy Y., to make negative comments or allegations about Father and Grandparents; and
that Father “had met his burden of proof of a preponderance of the evidence” that it should

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be Father’s decision as to whether Grandparents should be permitted contact with the child.
Thus, this order modified the no contact provision of the December 27, 2022, order
between Grandparents and the child. It is from this order that Mother now 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, Mother raises eleven assignments of error, several of which are similar;
as such, they will be consolidated accordingly for our discussion below. See
generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231,
237 (2012) (stating that “the assignments of error will be consolidated and discussed
accordingly”).

First, Mother argues that the family court erroneously considered evidence
regarding Jeremy Y.’s contact with the child because the basis for the modification
pertained to Grandparents’ contact with the child. We disagree. Our Legislature has long
declared that “the public policy of this state [is] to assure that the best interest of children
is the court’s primary concern in allocating custod[y.]” W. Va. Code § 48-9-101 (2001). In
determining whether to modify a parenting plan order, a family court must consider
whether the modification is in the child’s best interests. See W. Va. Codes §§ 48-9-401 and
402 (2022). Upon review of the record, Jeremy Y. lives with Mother and purportedly assists
her in taking care of the child. Because Jeremy Y.’s testimony regarding his contact with
the child was important for the family court to consider when analyzing the child’s best
interests, we cannot conclude that the family court erred or abused its discretion by
considering evidence pertaining to Jeremy Y.

For Mother’s second and third assignments of error, she asserts that the family court
abused its discretion by requiring Jeremy Y.’s physical appearance at the hearing and by
failing to allow her to be present during Jeremy Y.’s direct examination. In support of her
argument, she contends that the court exhibited judicial bias against her because while the
family court was aware that Jeremy Y. was watching the child during the hearing, she was
required to leave the courtroom and watch the child since Jeremy Y. was summoned to
testify in person. Mother further maintains that since the court permitted Dr. Saar and Mr.

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Morello to testify telephonically, its decision to prohibit Jeremy Y. from testifying
telephonically was arbitrary and capricious. We disagree.

Pursuant to Rule 18 of the West Virginia Rules of Practice and Procedure for Family
Court, a family court may permit a witness to testify in an evidentiary hearing
telephonically; however, it is in the court’s discretion. Likewise, West Virginia Code § 51-
2A-7(a)(1) (2013) gives family courts the broad authority to “[m]anage the business before
them[.]” Such authority extends to “[s]ummon[ing] witnesses and compel[ling] their
attendance in court[.]” W. Va. Code § 51-2a-7(a)(2). Here, Dr. Saar and Mr. Morello were
permitted to testify by phone because Father previously filed motions to appear
telephonically on their behalf. As the SCAWV has held,

An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be
presumed, all presumptions being in favor of the correctness of the
judgment.

Syl. Pt. 7, State ex rel. Hatcher v. McBride, 221 W. Va. 760, 656 S.E.2d 789 (2007). A
review of the record reveals that Jeremy Y. made no motion requesting to appear
telephonically although he was summoned approximately three weeks prior to the final
hearing.

Further, upon a review of the hearing, the family court inquired of Mother’s
presence during Jeremy Y.’s testimony. Counsel for Mother stated, “[w]e discussed it, and
she is going to just sit out for this.” “Our general rule is that nonjurisdictional questions . .
. raised for the first time on appeal, will not be considered.” Noble v. W. Va. Dep’t of Motor
Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009); see also Syl., Smith v.
Holloway Const. Co., 169 W. Va. 722, 289 S.E.2d 230 (1982) (citations omitted) (“Where
objections were not shown to have been made in the [family] court, and the matters
concerned were not jurisdictional in character, such objections will not be considered upon
appeal.”).

In response to Mother’s allegations of judicial bias, generally, a party contending
bias would seek disqualification of the offending judge, pursuant to Rule 58 of the Rules
of Practice and Procedure for Family Court.4 No motion for disqualification of the family

4
Rule 58 of the Rules of Practice and Procedure for Family Court states the
following:

(a) The procedure for disqualification of family court judges shall be the same as
that set forth in Trial Court Rules for Trial Courts of Record, Rule 17.

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court judge was filed below. “As noted in Rule 58, which references Rule 17 of the Trial
Court Rules, decisions regarding disqualification of judges are made by the Chief Justice
of the SCAWV and are not the province of this Court.” In re C.S., 251 W. Va. 147, ___,
909 S.E.2d 819, 823-824 (Ct. App. 2024). Moreover, Mother did not substantiate her claim
of bias and has not established that her due process rights were violated at any time during
the proceedings. See Xerxes R. v. Richard P., No. 24-ICA-76, 2024 WL 5003524 (W. Va.
Ct. App. Dec. 6, 2024) (memorandum decision). Therefore, we are unable to find that the
family court clearly erred or abused its discretion surrounding Jeremy Y.’s testimony.

For her fifth assignment of error, Mother argues that the family court erroneously
refers to Mr. Morello as a doctor. We find no merit in this argument. Mother failed to show
how her case was negatively affected by referring to Mr. Morello as a doctor, which
amounts to, if anything, harmless error. See William M. v. W. Va. Bureau of Child Support
Enf’t, No. 20-0620, 2021 WL 3833867, at *3 (W. Va. Aug. 27, 2021) (memorandum
decision) (finding alleged error by family court harmless where petitioners failed to show
that they suffered prejudice or had their substantial rights adversely affected by alleged
error).

As to Mother’s remaining assignments of error, she argues that the family court’s
ultimate determination was based upon its erroneous credibility determinations regarding
various witnesses’ testimony and its failure to properly weigh the evidence. First, it is well
established that “[a] reviewing court cannot assess witness credibility through a record.
The [family court] is uniquely situated to make such determinations and this Court is not
in a position to, and will not, second guess such determinations.” Michael D.C. v. Wanda
L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). Secondly, “[a]n appellate court
may not . . . weigh evidence as that is the exclusive function and task of the trier of fact.” In
re the Marriage/Child. of Matt N. v. Michele I., No. 14-0090, 2014 WL 6724758, at *5 (W.
Va. Nov. 25, 2014) (memorandum decision) (citing State v. Guthrie, 194 W. Va. 657, 669
n.9, 461 S.E.2d 163, 175 n.9 (1995)). Upon review of the hearing, the family court heard
both parties’ arguments and properly determined which evidence was salient to the issues
being considered and the weight such evidence should be afforded. Though Mother may
not agree with the credibility determinations made by the family court or its weighing of

(b) Assignments to Hear Emergency Matters Pending a Ruling; Assignments in the
Event of Disqualification. The chief justice of the Supreme Court of Appeals may assign
another family court judge, a former family law master or family court judge, circuit court
judge or senior status circuit court judge to hear emergency matters pending a ruling. In
the event a disqualification motion is granted the chief justice shall promptly assign another
family court judge, a former family law master or family court judge, circuit court judge
or senior status circuit court judge to preside over the case.

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the evidence, her simple disagreements do not entitle her to relief. Thus, we cannot
conclude that the family court’s findings were clearly wrong or the application of the facts
to the law was an abuse of discretion.

Accordingly, we affirm the Family Court of Nicholas County’s October 30, 2024,
order.

Affirmed.

ISSUED: August 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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