Kenneth N. v. Jean L.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
KENNETH N.,
March 25, 2024
C. CASEY FORBES, CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-304 (Fam. Ct. Fayette Cnty. No. FC-10-2011-D-98)

JEAN L.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Kenneth N.1 (“Father”) appeals the Family Court of Fayette County’s
June 9, 2023, order denying his petition for a custody modification and holding him in
contempt. Respondent Jean L. (“Mother”) filed a response in support of the family court’s
decision.2 Father 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 family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Father and Mother are divorced and share two minor children, S.N. and K.N.
(“children”). Events leading to this appeal began when Mother filed two domestic violence
petitions against Father in April and June of 2022 for his alleged harassment of her.3 The
parties’ final divorce order was entered on July 17, 2022, and included the following
directives: (1) there shall be no unwanted contact between the parties; (2) the parties shall
only communicate by text and shall only communicate about the children; (3) neither party
shall allow third parties to speak negatively about the other party in the children’s presence;

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
Both parties are self-represented.
3
Mother agreed to withdraw the domestic violence protective orders in return for
Father’s agreement to stop harassing her.

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and (4) neither party shall discuss finances or legal matters in front of the children. Father
was also granted parenting time every other weekend and Tuesday through Thursday on
alternating weeks during the school year but exercised a week-on/week-off parenting
schedule during summer break.

During a subsequent hearing on November 17, 2022, the parties entered into an
agreement to modify their parenting plan to include provisions prohibiting both parties
from “making any negative comments about the other or the other’s family” and doing
“anything to directly or indirectly harass or bother the other party.”

On December 27, 2022, Mother filed a petition for contempt against Father. In her
petition, she alleged that Father: (1) harassed her and her family through text messages and
phone calls; (2) threatened to take the children from her and accused her of being an unfit
parent; (3) spoke negatively about her to the children; (4) made false reports of abuse to
Child Protective Services (“CPS”); (5) requested that law enforcement conduct wellness
checks at her residence; (6) stalked her at her new job; (7) had the children contact him
through FaceTime so he could get pictures of her home; (8) pressured the children about
the parties’ family court matters; and (9) refused to allow the oldest child to play sports or
participate in extra-curricular activities.

On April 3, 2023, Father filed a petition for contempt and a petition for modification
against Mother. In his petition for contempt, Father alleged that: (1) Mother interfered with
his daily FaceTime calls; (2) the children did not have their own rooms; (3) Mother feeds
the children too late in the evenings; (4) Mother does not keep him informed of medical
matters; and (5) Mother allowed the children to miss school excessively. Based on those
allegations, Father requested a 50-50 custodial modification and that he be given primary
decision-making on all medical and educational matters.

A hearing on all three petitions was held on June 8, 2023. At the hearing, Mother
presented an audio recording of Father telling her to “enjoy being a weekend mom” during
a child visitation exchange. Mother also presented multiple texts from Father. The family
court found that Father sent texts constantly, but all texts were related to the children and
did not violate the previous order. Father testified that he telephoned Mother, which was
in violation of the prior order, and that he requested law enforcement to conduct well
checks on the children. During his testimony, Father also admitted that he parked at
Mother’s workplace and took pictures during FaceTime calls, but he denied that any of
those actions were for an improper purpose. Father also testified that he refused to allow
the oldest child to play sports because it would interfere with his parenting time. Father
presented hundreds of text messages between himself and Mother to prove his contempt

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against Mother, and after reading a few of them aloud, the family court found that Mother’s
replies to the text messages were all denials of wrongdoing.

Additionally, at the hearing on June 8, 2023, the family court conducted an in-
camera interview of the oldest child, S.N., who expressed a desire to speak with the judge.
The child stated that: (1) she loved both parents and did not want to lose time with either;
(2) her parents always argued; (3) both parents talked badly about the other parent; (4) both
parents have talked to her about speaking to the court, but only Father has pressured her
about what to say; (5) Father took pictures of the outside of Mother’s home during
FaceTime calls; and (6) she wanted to play soccer and softball.

The family court entered its Order Following Contempt and Modification Hearing
on June 9, 2023. In that order, the family court held Father in contempt for harassing
Mother, calling instead of texting her, and for discussing legal matters with the children.
Additionally, the family court found Mother to be in contempt for speaking negatively
about Father in the children’s presence. Ultimately, the family court found that Mother’s
testimony was more credible than Father’s and that there was “insufficient evidence to
support the [F]ather’s proposed modification of the parenting plan.” The family court
further ordered the parties not to discuss the child’s in-camera interview and held that S.N.
shall be permitted to play soccer and softball. It is from that order that Father 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., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);
accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review
of family court order).

On appeal, Father raises three assignments of error. First, he asserts that the family
court erred when it held him in contempt for harassing Mother even though there was no
evidence to support Mother’s claims. In support of his argument, Father states that after
Mother presented her case, he presented nearly 300 pages of text messages, but the family
court advised that it was too much to enter into evidence. As a result, Father did not have
enough time to present his case. Upon review, we find that Father’s argument lacks merit.
West Virginia Code § 51-2A-7(a)(1) (2013) gives family courts the power to “[m]anage
the business before them.” Here, the family court requested Father to point out any specific

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text messages that he felt supported his allegations. Father read several text messages into
the record. The family court determined that the messages read aloud by Father “did not
show the mother was in contempt or an unfit parent.” Therefore, we conclude that the
family court did not commit error or abuse its discretion as to this assignment of error.

As his second assignment of error, Father contends that the family court erred when
it ordered him not to discuss court proceedings with the children because it prevented him
from answering the oldest child’s questions. Mother, in response, argues that the children
do not want to be involved in the parties’ disagreements and that it is in their best interest
not to discuss adult matters. Additionally, S.N. stated during her in-camera interview that
Father pressured her about what to say during family court proceedings. Upon review, we
find Father’s argument unpersuasive. The Supreme Court of Appeals of West Virginia has
consistently held that the best interest of the child is the polar star by which all matters
affecting children must be guided. See Galloway v. Galloway, 224 W. Va. 272, 275, 685
S.E.2d 245, 248 (2009) (citations omitted). As such, we conclude that the family court did
not abuse its discretion in ordering the parties not to discuss the proceedings with the
children.

Lastly, Father argues that the family court erred when it ruled that the oldest child
could play sports against his wishes. We disagree. S.N. informed the family court that she
wished to play sports and Mother argued that it was in the child’s best interest to participate
in sports. “An appellate court may not . . . weigh evidence, as that is the exclusive function
and task of the trier of fact.” State v. Guthrie, 194 W. Va. 657, 669 n.10 461 S.E.2d 163,
175 n.10 (1995). Additionally, “[a] reviewing court may not overturn a family court’s
finding simply because it would have decided the case differently.” In Interest of Tiffany
Marie S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185 (1996).

Accordingly, we affirm the family court’s June 9, 2023, order.4

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Although we find no prejudicial error in the family court’s order, we would be
remiss if we failed to mention our concern with the lack of analysis in the final order. While
it does not change the outcome here, we encourage family courts to strive to include
detailed analysis regarding whether a substantial change in circumstances has occurred,
and if so, to include specific findings of fact and conclusions of law which are required
when there is a deviation from a 50-50 custodial allocation. Here, the family court’s final
order merely stated, “[t]here was insufficient evidence to support the father’s proposed
modification of the parenting plan.”

West Virginia Code § 48-9-206(d) (2022) instructs that final parenting plan orders
must include specific findings of fact if the family court first finds that a substantial change
in circumstances has occurred pursuant to § 48-9-401(a) (2022). West Virginia Code § 48-
9-209 (2022) provides a non-exclusive list of factors to be considered when making
findings regarding custody.
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Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

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

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