Sharese W. v. Devon W.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
SHARESE W., May 1, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-303 (Fam. Ct. Jefferson Cnty. No. FC-19-2018-D-300)

DEVON W.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Sharese W.1 appeals the “Final Custodial Modification Order” entered by
the Family Court of Jefferson County on November 16, 2022. Sharese W. asserts that the
family court erroneously proceeded with the final hearing that had been rescheduled and
she did not receive notice of the new time. Respondent Devon W. timely filed a response
in support of the family court’s order.2 Sharese W. did not file a reply.

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(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the lower tribunal’s decision is reversed, and this case is
remanded for further proceedings consistent with this decision.

The parties share two children: J.W., age nine; and D.W., age seven, and had been
operating under the same parenting plan since January 2019. Under the parenting plan,
Devon W. had the children on Mondays, Tuesdays, Saturdays, and alternating Sundays.
Sharese W. had the children at all other times and received child support.

Sharese W. filed a petition for modification of custody on September 15, 2022, and
the modification hearing was scheduled for November 15, 2022, at 2:30 p.m. An “Order
Resetting Hearing” was entered on November 7, 2022, which rescheduled the hearing 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
In this appeal, both parties are self-represented.

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three hours earlier, at 11:30 a.m. on the same day, at Devon W.’s counsel’s request. Sharese
W. failed to appear, but the family court nevertheless proceeded with the hearing at 11:30
a.m. Sharese W. appeared for the hearing at 2:00 p.m., thinking she was a half-hour early,
and informed the court that she had not received notice of the new time. The family court
entered the “Final Custodial Modification Order” on November 16, 2022, which set child
support at zero dollars and slightly modified the parties’ parenting time. It is from that
Order that Sharese W. appeals. For these appeals, we are guided by the following standard
of review:

“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, Sharese W. contends that she had relocated and did not receive notice of
the new hearing time. She appeared at 2:00 p.m. with the understanding that the hearing
was still scheduled for 2:30 p.m. Devon W. contends that Sharese W. should have notified
the court of her new address.

After reviewing the video of the hearing below, the family court judge stated on the
record that Sharese W. may not have received notice and asked Devon W. whether he knew
if Sharese W. was aware of the new hearing time. Devon W. informed the family court
judge that Sharese W. had relocated, but the court proceeded with the hearing anyway and
did not attempt to reach her by phone. Nevertheless, after making no effort to contact
Sharese W., the family court improperly stated in the final order that “[b]oth parties have
had due and proper notice of this proceeding.”

The Supreme Court of Appeals of West Virginia has stated that, in instances such
as this, various interests must be weighed including the interest in judicial efficiency, the
rights of plaintiffs to have their day in court, any prejudice that might be suffered by
defendants, and the value of deciding cases on the merits. Caruso v. Pearce, 223 W.Va.
544, 550, 678 S.E.2d 50, 56 (2009). After review of the record below, the facts demonstrate
that the family court’s decision to proceed with the hearing when nothing in the record
demonstrated that Sharese W. had received notice was erroneous, particularly when the
hearing had been moved to an earlier time on the same day rather than a later time.

2
Accordingly, we reverse the family court’s November 16, 2022, order and remand
this case to the Family Court of Jefferson County to hold a full evidentiary hearing on
Sharese W.’s petition for modification.

Reversed and Remanded.

ISSUED: May 1, 2023

CONCURRED IN BY:

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

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