Marcus P. v. Mathew M. and Jessica M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
MARCUS P., February 2, 2023
Intervenor Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-103 (Fam. Ct. Putnam Cty. No. FC-40-2015-D-452) OF WEST VIRGINIA

MATHEW M.
Petitioner Below, Respondent

And

JESSICA M.,
Respondent Below, Respondent

February 1, 2023

MEMORANDUM DECISION

Petitioner Marcus P. 1 appeals the final order denying his petition for modification
of parenting plan entered by the Family Court of Putnam County on August 17, 2022. He
asserts that the family court erred in finding that there was no substantial change in
circumstances based on the minor child’s bond with his biological siblings and his
preference to spend more time with them. Respondent Mathew M. and the guardian ad
litem (“GAL”) responded in support of the family court’s ruling. Jessica M. did not file a
brief and Marcus P. did not file a reply. 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 no substantial question of law and no prejudicial error. For

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
Petitioner is represented by G. Wayne Van Bibber, Esq. Respondent Mathew M.
is represented by Erica Lord, Esq. Respondent Jessica M., self-represented. The guardian
ad litem is Charles M. Love, IV, Esq.

1
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Mathew M. and Jessica M. were previously married. One child was born of their
marriage, R.M. The parties separated on October 30, 2015, when R.M. was approximately
twenty-eight months old. Marcus P. intervened in the divorce proceedings, alleging that he
was R.M.’s biological father. It was confirmed through paternity testing that Marcus P. is
the biological father of R.M., and the parenting time issue was bifurcated from the divorce.
The final order establishing parenting time found that Mathew M. is the legal father of
R.M. and Marcus P. is the biological father of R.M.

Since July 2, 2019, the parties’ parenting time has been governed by the agreed final
order on modification of parenting plan. This order established shared parenting and
decision-making to all three parents. It further provided that so long as the Marcus P. and
Jessica M. lived together, they would share their parenting time and that Mathew M. would
receive a minimum of 172 overnight visits every year. Marcus P. and Jessica M. are now
married and share twin daughters who are full siblings to R.M. Marcus P. and Jessica M.
live in Ripley, Jackson County, and Mathew M. lives in Teays Valley, Putnam County.

On August 20, 2021, Marcus P. filed a petition to modify the parties’ parenting plan
based on the child’s stated preference to spend more time with his sisters. Mathew M.
objected to the modification and filed a motion to dismiss, arguing no substantial change
in circumstances had occurred. Marcus P.’s proposed plan would eliminate Mathew M.’s
current weeklong stays as provided for under the 2019 agreed order and would reduce
Mathew M.’s parenting time to only every other weekend.

On April 19, 2022, the GAL filed a fourth amended written report 3 to address the
petition for modification. The report notes the hostility and extensive family court litigation
between the parties. The GAL went on to state that he interviewed R.M. and found that he
expressed an honest, uninfluenced desire to spend more time with his siblings.

After considering the evidence and arguments, the family court found that R.M.
wanting to spend more time with his siblings does not constitute a substantial change in
circumstances. The court further found that at eight years old, R.M. is not mature enough
to decide to “take away parenting time” from Mathew M.

Marcus P. now appeals the family court’s order denying modification of the
parenting plan. When reviewing a family court order, this Court applies the following
standard of review:

Due to the ongoing litigation between the parties, the family court appointed the
3

GAL at various times to protect the interests of R.M.
2
“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, 2022 WL 17098574, at *3 __ W. Va. __, __,
__ S.E.2d __, __ (Ct. App. 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying
standards for appellate court review of family court order).

West Virginia Code § 48-9-401(a) (2022) states that “[a] court shall modify a
parenting plan if it finds, on the basis of facts that were not known or have arisen since the
entry of a prior order and were not anticipated in the prior order, that a substantial change
has occurred in the child or of one or both parents and a modification is necessary to serve
the best interests of the child.” “‘In considering visitation issues, the courts must also be
mindful of facilitating the right of the non-custodial parent to a full and fair chance to
continue to have a close relationship with his children.’ Syllabus point 9, White v.
Williamson, 192 W. Va. 683, 453 S.E.2d 666 (1994).” Syl. Pt. 3, Storrie v. Simmons, 225
W. Va. 317, 693 S.E.2d 70 (2010).

In his first assignment of error, Marcus P. argues that the family court incorrectly
found that R.M.’s close relationship with his sisters did not constitute a substantial change
in circumstance. He relies on Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011).
In Skidmore, the father sought modification of a parenting plan that was adopted when the
parties’ child was four years old and provided the father minimal parenting time. Id. at 16,
725 S.E.2d at 185. At the time the modification was sought, the child was eleven years old,
the father had remarried, and half-siblings had been born. Id. For these reasons, the father
argued a substantial change in circumstance had occurred to warrant a significant increase
in parenting time. Id. The GAL in Skidmore opined that modifying the current parenting
plan was in the best interest of the child. Id. at 22, 725 S.E.2d at 191. Ultimately, the
Supreme Court of Appeals of West Virginia held that the birth of a sibling and a child’s
significant advance in age could constitute a substantial change in circumstance. Id. at 21-
22, 725 S.E.2d at 190-191.

The family court found that Skidmore is distinguishable from this case and we agree.
In Skidmore, the father had a small fraction of the parenting time that the mother had. Here,
the parents share 50/50 custody and R.M. is with his siblings significantly more often than
the child was in Skidmore. Further, the child in Skidmore had a more significant advance
in age, going from four years old to eleven years old, between parenting plans being
established. Unlike in Skidmore, R.M. is eight years old 4 and only three years have passed

4
R.M. has since turned nine years old.

3
since the last parenting plan was adopted in 2019. Although the Skidmore court held that a
child’s preferences should be considered when determining what was in his or her best
interest, the GAL opined that R.M. is not mature enough to determine what is in his best
interest. 5 Accordingly, we are not persuaded by Marcus P.’s argument and find that he is
not entitled to relief on these grounds.

In his second assignment of error, Marcus P. argues that the family court abused its
discretion by finding that R.M. was not mature enough to express a preference to spend
more time with Marcus P. and Jessica M. without any supporting evidence at the hearing.
Marcus P. argues that the family court ignored the GAL’s report and testimony. We
disagree. Here, the GAL recommended an outcome that is opposite of what Marcus P. is
requesting. The GAL recommended that the current 50/50 parenting plan remain in effect
and made no finding in the report that R.M. was mature enough for his age for the court to
consider his preference. There appears to be some confusion between the parties on the
GAL’s opinion of R.M.’s maturity, but the GAL’s response makes it clear. The GAL states
that R.M. has “demonstrated an appropriate maturity for an eight-year-old but is not yet
mature enough to determine what is in his best interest.” For these reasons, we reject
Marcus P.’s argument.

In his third assignment of error, Marcus P. argues that the family court erred by
placing greater priority on R.M.’s interest of spending time with his parents over
meaningful contact with his siblings. He argues that the needs and the wants of the parents
should not be overridden by the best interests of R.M. This argument is misplaced. West
Virginia Code § 48-9-102 (2022) states, in part, that the best interest of the child is best
served by facilitating the “stability of the child,” the “continuity of existing parent-child
attachments,” and “meaningful contact between a child and each parent.” Marcus P. asks
that we look past statutory objectives aimed at preserving the parent-child relationship and
concentrate on subsection (8) which instructs the court to facilitate meaningful contact with
siblings. See W. Va. Code § 48-9-102(8). Based on our review, the family court’s denial
of Marcus P.’s petition to modify the current parenting plan serves to preserve the existing
parent-child attachments while also allowing meaningful contact with R.M. and his
siblings. Accordingly, we find no error.

For the foregoing reasons, we affirm the family court’s August 17, 2022, order.

Affirmed.

5
West Virginia Code § 48-9-402(b)(3) and (4) permits a family court to modify a
parenting plan based on the “reasonable and firm preferences of a child who has attained
the age of 14” or “is under the age of 14 and, in the discretion of the court, is sufficiently
matured that he or she can intelligently express a voluntary preference.” Although the child
in Skidmore had not reached fourteen years old, the Court held that he was found to be
mature enough to express a preference. 229 W. Va. at 22, 725 S.E.2d at 191.
4
ISSUED: February 2, 2023

CONCURRED IN BY:

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

5