Wanda M. v. Philip G.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WANDA M., FILED
Petitioner below, Petitioner February 2, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-118 (Fam. Ct. Roane Cnty. No. 22-D-54) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

PHILIP G.,
Respondent below, Respondent

MEMORANDUM DECISION

Petitioner Wanda M. 1 appeals the “Order Denying Grandparent Visitation” entered
by the Family Court of Roane County on August 22, 2022. Wanda M. asserts multiple
assignments of error, but they can be distilled into one issue: that the family court’s findings
were inconsistent with its ruling. Respondent Philip G. did not file a response. 2

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 that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21 of the Rules of Appellate Procedure for resolution in a memorandum decision. For
the reasons set forth below, the family court’s decision is vacated, and this case is remanded
for further proceedings consistent with this decision.

Wanda M. is the maternal grandmother of the thirteen-year-old child shared
between her deceased daughter and Philip G. 3 Wanda M. lives in Atlanta, Georgia, and
filed an emergency petition for grandparent visitation because Philip G. planned to relocate
from West Virginia to New York with the minor child. During the hearing, Wanda M.
presented evidence that she shares a substantial bond with the child, has been involved in
his life since birth, and that the child lived with her for seven months in 2020. Further, she
testified that the child has learning disabilities and that, after she spent a significant amount

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
Wanda M. is self-represented.
3
The parents divorced in 2021, prior to the mother’s passing in May 2022.

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of money on a specialized education program, the child went from being unable to read to
a second grade reading level in a short time frame. Wanda M. also presented evidence that
she has bought the child gifts, taken him on vacation, called him regularly, and purchased
Philip G. a car. Philip G. testified that he would do whatever the child wanted with regard
to visiting Wanda M., but stated that he was unable to drive to Atlanta for visitation.

The family court made findings that Philip G. has actively discouraged the minor
child from visiting Wanda M., that Wanda M. has gone out of her way to establish a
relationship with the child, that the child has an unnatural fear of visiting Wanda M. in
Atlanta unless Philip G. is present, and that Philip G. is “directly at fault” for causing the
minor child’s unnatural fear. Despite multiple findings in Wanda M.’s favor, the family
court denied grandparent visitation because “it would not be healthy to make the minor
child go to Atlanta by himself” to visit Wanda M. The family court’s conclusion appears
contrary to its findings.

In addition to making contradictory findings and conclusions, the family court failed
to make specific findings of fact regarding the thirteen grandparent visitation factors set
forth in West Virginia Code § 48-10-502 (2001). In Turley v. Keesee, 218 W. Va. 231, 234,
624 S.E.2d 578, 581 (2005), the Supreme Court of Appeals explained that “the Legislature
has gone to great lengths to enumerate the factors listed in W. Va. Code § 48-10-502.” The
Court further stated, “[t]he family court must thoroughly evaluate how each factor applies
to the specific facts and allegations contained in the case before it.” Id.

The Supreme Court’s ruling in Turley is consistent with the general rule that a lower
court’s order “must be sufficient to indicate the factual and legal basis for the [court’s]
ultimate conclusion so as to facilitate a meaningful review of the issues presented.”
Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 (1996). “Where the lower
tribunals fail to meet this standard—i.e., making only general conclusory or inexact
findings—we must vacate the judgment and remand the case for further findings and
development.” Id.

A review of the record shows that the family court erred by making contradictory
findings and conclusions and by not making findings of fact with regard to the factors set
forth in West Virginia Code § 48-10-502. Accordingly, we vacate the August 22, 2022,
order and remand this case to the Family Court of Roane County for further proceedings
consistent with this decision. The Clerk of this Court is hereby directed to issue the mandate
contemporaneously.

Vacated and Remanded.

ISSUED: February 2, 2023

2
CONCURRED IN BY:

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

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