Robyn C. v. Thomas M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ROBYN C., July 30, 2024
Respondent Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-2 (Fam. Ct. Kanawha Cnty. No. 18-D-10)

THOMAS M.,
Petitioner Below, Respondent

MEMORANDUM DECISION

The Petitioner, Robyn C.,1 appeals the Family Court of Kanawha County’s
November 16, 2023, Final Order Regarding Modification of Parenting & Child Support
and its November 17, 2023, Order Granting Respondent’s Petition for Contempt. The
Respondent, Thomas M., filed a response in support of the family court’s decisions.2
Mother did not file a reply. The issues on appeal are whether the family court erred by not
recalculating child support and erroneously foreclosed Robyn C. the opportunity to seek
reimbursement for their child’s medical expenses.

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 family court’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 affirmed, in part, vacated, in part,
and remanded to the family court with directions as set forth herein.

Thomas M. (“Father”) and Robyn C. (“Mother”) share one child. Events leading to
this appeal began with a final allocation hearing that was held on March 14, 2018. The final
order was entered on March 15, 2018, and designated Mother as the primary residential
parent with shared decision-making. Father was ordered to provide medical insurance for
the child through his employment if such coverage was reasonably available. He was also
ordered to pay $484.69 per month in child support. Regarding medical bills, the final order

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).

Robyn C. is represented by Claude S. Smith, III, Esq. Thomas M. is represented
2

by G. Wayne Van Bibber, Esq.
1
stated that Father would be responsible for sixty-four percent of any bills that were not
covered by insurance and Mother would be responsible for the remaining thirty-six percent.

On April 25, 2023, Father informed Mother by email that he planned to drop the
child from his insurance due to the child’s failing grades. On July 18, 2023, Mother filed a
petition to modify the parenting plan and child support, due to her belief that Father’s
income had changed and would result in a fifteen percent increase in the child support
calculation; Mother also included in her petition for modification allegations regarding
sexual abuse by Father’s significant other and alleged that Father had been dismissive
regarding the child’s food allergies. Additionally, Mother filed a petition for contempt
against Father on July 18, 2023, wherein she alleged that she had incurred $834.58 in
uncovered medical expenses since the entry of the March 15, 2018, order. In his response
to the contempt petition, Father stated that he did not learn of the outstanding medical bills
until Mother filed her contempt petition. He also contested the amount Mother claimed he
owed.

Hearings on Mother’s petition for custody modification and child support as well as
her petition for contempt were held on November 1, 2023. The final order on custody and
child support was entered on November 16, 2023, wherein the family court denied
Mother’s petition, stating that the child was seventeen years old and could choose when he
wanted to visit Father. The family court further found that neither party was credible—
because Mother did not inform Father about taking the child to counseling after the alleged
sexual abuse, and Father had been dismissive of Mother’s concerns. Regarding child
support, the court held, “[Father] shall continue payment to the [Mother] in the amount of
$484.69 per month” and no other analysis was provided.

Regarding the hearing on Mother’s petition for contempt, Mother argued that she
sent Father the unpaid medical bills in March of 2019 via certified mail but Father refused
to sign for them. Mother further testified that additional medical bills accumulated after
that date but she did not attempt to send them to Father after he refused them the first time.
Father testified that he believed the uncovered medical bills totaled $612.80 rather than
$834.50 and stated that Mother did not include his full address when she mailed the bills
to him. The family court entered its order granting, in part, Mother’s contempt petition on
November 17, 2023, for the amount of $612.80, holding that “uncovered medical expenses
. . . [were] hereby resolved through the date of July 18, 2023” due to Mother’s delay in
seeking reimbursement. Father wrote Mother a check for $612.80 at the hearing.

It is from both the custody and modification order entered on November 16, 2023,
and the contempt order entered on November 17, 2023, that Mother now appeals. For these
matters, we use the following standard of review.

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review

2
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., No. 22-918, 2024 WL 2966177, __ W. Va. __,
__S.E.2d __ (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for
appellate court review of family court orders).

On appeal, Mother raises two assignments of error. First, Mother asserts that the
family court abused its discretion by failing to apply the child support guidelines to the
parties’ respective incomes to determine whether there had been a significant change in
circumstances pursuant to West Virginia Code § 48-11-105(b) (2008).3 We agree. Upon
our review of the record, Mother’s petition to modify child support stated, “[u]pon
information and belief there has been a substantial change in circumstances and that an
application of the guideline[s] to the parties’ current gross monthly incomes would result
in a new order that is more than fifteen percent different than the current child support
obligation herein.” Because Mother alleged a change in circumstances in her petition for
modification, the family court should have addressed specifically matters concerning child
support but failed to do so. Therefore, we vacate the November 16, 2023, modification
order and remand with directions for the family court to determine whether there has been
a change in circumstances which results in a fifteen percent child support obligation
difference under the guidelines.

As her second assignment of error, Mother contends that the family court erred by
preemptively ruling that she would not be permitted to seek reimbursement for uncovered
medical expenses for the child that were incurred from August 22, 2019, through July 20,
2023. We disagree. The family court found that “both parties have credibility issues” and
that Mother stopped providing copies of medical bills to Father after she became frustrated
by Father’s lack of responsiveness, although it was determined during the hearing that
Mother failed to include Father’s full address when she originally mailed the medical bills
to him. Therefore, the family court ruled that Mother was entitled to reimbursement for the
medical bills for which she properly made Father aware, which totaled $612.80 of her
original request of $834.50. Therefore, we cannot conclude that the family court abused its
discretion in ruling that Mother was not permitted to seek further reimbursement between
the dates of August 22, 2019, and July 20, 2023, after her lengthy delay in seeking
reimbursement. See State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9
(1995) (“An appellate court may not decide the credibility of witnesses or weigh evidence
as that is the exclusive function and task of the trier of fact.”); See also In re Tiffany Marie

3
West Virginia Code § 48-11-105(b) states, “[t]he provisions of the order may be
modified if there is a substantial change in circumstances. If application of the guideline
would result in a new order that is more than fifteen percent different, then the
circumstances are considered a substantial change.”
3
S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185 (1996) (reviewing court may not overturn a
family court’s finding simply because it would have decided the case differently).

Accordingly, as to the first assignment of error regarding child support, we vacate
and remand; as to the second assignment of error regarding the contempt, we affirm.

Affirmed, in part, Vacated, in part, and Remanded with directions.

ISSUED: July 30, 2024

CONCURRED IN BY:

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

4