Tiffany S. v. Robert S.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
May 22, 2023
TIFFANY S.,
EDYTHE NASH GAISER, CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 23-ICA-21 (Fam. Ct. Wyoming Cnty. No. FC-55-2015-D-127)

ROBERT S.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Tiffany S.1 appeals the Family Court of Wyoming County’s December
20, 2022, order which denied her motion for change of venue. Respondent Robert S. did
not file a response, but did submit a letter in support of the family court’s decision.2 Tiffany
S. 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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the lower tribunal’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

The parties are the parents of one child, D.S., now age eleven. On June 21, 2022,
Tiffany S. filed a motion for change of venue, wherein she requested that her case be
transferred from the Family Court of Wyoming County to the Family Court of Kanawha
County. As support for her motion, Tiffany S. stated both she and the child have been
residents of Kanawha County since June 2019, the child has been enrolled in Kanawha
County schools since that time, her witnesses regarding parental fitness are in Kanawha
County, driving to Wyoming County for court proceedings placed financial and emotional
strain upon her, and transferring the matter to Kanawha County would not place an undue
burden upon Robert S., as he has no dependents in his home. Also, on June 21, 2022,

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
Both parties had counsel for the hearing below but are self-represented for this
appeal.

1
Tiffany S. filed a petition for contempt against Robert S. alleging that he had failed to
comply with several directives previously ordered by the court.
A hearing on the motion and petition was held on September 14, 2022, and the court
conducted it by proffer. The family court entered its order on December 20, 2022, wherein
it denied Tiffany S.’s motion for change of venue, stating “[t]he proceedings were initiated
in Wyoming County and the [r]espondent is still a resident of Wyoming County.” As to
Tiffany S.’s petition for contempt, the family court ruled in Tiffany S.’s favor for all
allegations against Robert S. It is from the December 20, 2022, order that Tiffany S. now
appeals. For these matters, we use 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, Tiffany S. raises two assignments of error. First, Tiffany S. contends that
the family court erred when it denied her motion for change of venue. We disagree. West
Virginia Code § 48-5-106(a) (2001) states, “[i]f the respondent . . . is a resident of this
state, the petitioner has an option to bring the action in the county in which the parties last
cohabited or in the county where the respondent resides.” In this matter, the parties last
cohabited in Wyoming County, and respondent Robert S., still resides in Wyoming County.
Therefore, the only possible venue for this matter is Wyoming County.

As her second assignment of error, Tiffany S. contends that the family court erred
when it conducted the September 14, 2022, hearing by proffer. After a review of the record,
we find that even if the family court erred by conducting the hearing by proffer, Tiffany S.
fails to show that she suffered prejudice, as she prevailed on every issue raised in her
petition for contempt. 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). Because
Tiffany S. prevailed on every issue raised in her petition for contempt, there is no relief to
be granted.3

3
We do not endorse the practice of conducting a non-temporary hearing by proffer.
Rule 20 of the Rules of Practice and Procedure for Family Court states, “With the exception

2
Accordingly, we affirm.

Affirmed.

ISSUED: May 22, 2023

CONCURRED IN BY:

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

of hearings on temporary relief, no hearing shall be conducted exclusively by the
presentation of evidence by proffer.”

3