Rimdaugas K. v. Gerda K.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
RIMDAUGAS K. May 23, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-174 (Fam. Ct. Gilmer Cnty. No. 21-D-26) OF WEST VIRGINIA

GERDA K.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Rimdaugas K. 1 (“Father”) appeals the Family Court of Gilmer County’s
Final Order Modifying Parenting Plan and Child Support (“Order”) entered on September
16, 2022. The family court found that there was a substantial change in circumstances
regarding the minor son, and that the son has a firm and reasonable preference to reside
with Father. However, the family court did not find a substantial change in circumstances
regarding the couple’s two minor daughters. The family court also modified the child
support obligations of both parties to reflect that the son now resides with Father. Father
appeals the family court’s order arguing that that the family court was clearly wrong when
it found no substantial change in circumstances regarding the daughters. Respondent Gerda
K. (“Mother”) filed a response brief. 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’ oral and written arguments, the record on
appeal, and the applicable law, this Court finds no substantial question of law and no abuse
of discretion. For these reasons, a memorandum decision affirming the family court’s order
is appropriate under Rule 21 of the Rules of Appellate Procedure.
Mother and Father are the parents of three minor children, a 16-year-old son and
two daughters, aged 14 and 11. 3 The parties were divorced in South Carolina on April 2,
2018, and a parenting plan established Mother as the primary residential parent and Father

1
We use initials where necessary to protect the identities of those involved in this
case. See, e.g., W. Va. R. App. P. 40(e).
2
Father is represented by Amy L. Lanham, Esq. Mother is represented by Michael
A. Hicks, Esq.
3
The children’s ages are as of the date of the Order.

1
was granted two weekends per month of parenting time. Mother moved with the children
to Gilmer County, West Virginia. Father resides in Georgia.

The order describes a series of events in 2016, when the parties were still married
but separated. According to the order, Father took the children to his native country in
Eastern Europe, 4 and Father did not return the children to the United States. As a result,
Mother was forced to wage a legal battle to bring the children back the United States. The
children were in Eastern Europe for approximately five months. As a result of the incident,
Father lost unsupervised visitation of the children for two years, and he was forced to
relinquish the children’s passports.

The Order and the evidentiary record indicate that Mother and son had an
acrimonious relationship after they moved to West Virginia and that the son told Mother
that he wanted to live with his father in Georgia.

In January of 2022, Mother and son were involved in an altercation that left both
with scratches. The daughters were not involved in, nor did they witness the physical
altercation. Conflicting testimony was presented to the family court by witnesses
concerning the event. In the hours after the altercation, Mother called law enforcement. A
state trooper was dispatched to the house, and Mother described her version of the events
to him. Apparently, the officer did not question the children and the officer told the son
that he was lucky Mother was not pressing charges.

Soon after the altercation, Father instituted the instant petition to modify the
parenting plan. Father alleges an abusive relationship between Mother and all the children.
Moreover, he notes that the children’s grades dropped after the they moved to West
Virginia, and that the son no longer plays violin. Father also alleges that Mother engaged
in parental alienation.

After Father filed his petition for modification of the parenting plan, Mother
consented to son moving to Georgia with Father. The record reflects that son is happy with
this living arrangement and his grades have improved.

Pursuant to Father’s petition for modification, the family court directed the West
Virginia Department of Health and Human Resources, Child Protective Services (“CPS”)
to interview the children. A report was provided to the family court and the parties, and a
CPS representative testified at a March 7, 2022, hearing.

4
Mother alleged in a June 27, 2022, family court hearing that Father told her that
he was taking the children on a beach vacation in South Carolina.

2
The report and testimony state that the couple’s daughters are happy living with
Mother, that they do not want to live in Georgia with Father, and that their grades have
improved as well. However, the report also states that there “is obvious psychological
abuse of [the son] by [Mother] based on [the son’s] statements and the fact that his sisters
are not allowed to speak with him directly.”

The CPS representative found evidence of maltreatment, and she was concerned
with the daughters’ mental health, as there were allegations that Mother instructed the
daughters not to communicate with their brother. She found the son to be credible, and that
there was evidence his sisters did not communicate with him. 5 However, the CPS
representative wrote in her report that no specific maltreatment was identified, that Mother
did not intend to hurt the children, and that the daughters were not endangered. CPS did
not refer the case for further investigation because the son was no longer living with Mother
and his sisters. The family court also heard testimony from Mother and Father on the
record and from the children, in camera.

On September 16, 2022, the family court issued a final order modifying the
parenting plan. The family court was concerned that CPS did not open “a full-blown
investigation and did not talk to all parties;” however, the court noted that CPS closes cases
when a child is out of the home. The family court found that Mother did not abuse her son
based on the testimony presented. Nevertheless, it concluded that there was a substantial
change in circumstances regarding the son, and that modifying the parenting plan to reflect
that the son will live with Father was appropriate. The court noted that the son expressed a
firm and reasonable preference to be with Father. 6 The order also notes that the son is doing
better while living with Father, and his grades have improved.

The family court did not find a substantial change in circumstances regarding the
daughters. The order notes that the daughters expressed a clear and unambiguous desire to
remain with Mother, and that their grades have improved. Therefore, the court denied
Father’s petition to modify the parenting plan for the daughters.

Father appeals the family court’s refusal to modify the parenting plan for the
daughters. Our standard of review is as follows:

5
The CPS representative could not substantiate the son’s claim that Mother told the
daughters not to communicate with the son.
6
West Virginia Code § 48-9-402(b)(3) (2022) provides that “[t]he court may modify
any provisions of the parenting plan without the showing of the changed circumstances . .
. if the modification is in the child’s best interests, and the modification . . . [i]s necessary
to accommodate the reasonable and firm preferences of a child who[] has attained the age
of 14[.]”

3
“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 a family court order).

On appeal, Father presents three assignments of error. First, he argues that based on
the evidence presented, the family court abused its discretion when it denied his motion to
modify the parenting plan with respect to the daughters. Second, he argues that the family
court erroneously determined that the son was not abused, and that said abuse was not
imputed to the daughters. Third, Father argues that the family court abused its discretion
when, in the order, the court referenced hearsay statements of the state trooper even though
the family court sustained hearsay objections in the hearing regarding the trooper’s
statements. Father also argues that the family court should not have referenced the 2016
temporary order that was issued soon after Father returned from Eastern Europe with the
children.

We find that the Order was not clearly wrong and contains no errors of law. Both
parties agree that the son should live with Father, and the Order reflects their agreement
and the desires of the son. Moreover, the family court was not clearly wrong when it found
no substantial change in circumstances with respect to the daughters. The record reflects
that the daughters expressed a clear desire to live with Mother, and that they are doing well
with Mother.

Father argues that Mother abused the son, and that pursuant to In re Christina L.,
194 W. Va. 446, 460 S.E.2d 692 (1995), if one child is abused, all children in the home are
abused. 7 In other words, Father argues that the daughters should be removed from Mother’s
custody due to her alleged abuse of the son.

Upon review, we do not find that the family court was clearly wrong when it
determined that the son was not abused. The CPS report and testimony indicates that there

7
Syllabus Point 2 of In re Christina L. states that where “there is clear and
convincing evidence that a child has suffered physical and/or sexual abuse while in the
custody of his or her parent(s), guardian, or custodian, another child residing in the home
when the abuse took place who is not a direct victim of physical and/or sexual abuse but is
at risk of being abused is an abused child under W[est] V[irginia] Code [§] 49-1-3(a)
(1994).” Id. at 448, 460 S.E.2d at 694.

4
were allegations of psychological and physical abuse, and that CPS found the son to be
credible. Nevertheless, the CPS case was closed when the son relocated with Father.
Importantly, the CPS never interviewed Mother. In other words, Mother was not given an
opportunity to be heard on this subject before the report was delivered to the family court.
Moreover, in Christina L., the Supreme Court of Appeals of West Virginia declined “to
adopt a blanket rule that parental rights must be terminated to all the children residing in
the home based merely on the finding that one child is abused.” Id. 194 W. Va. at 452, 460
S.E.2d at 698. In this case, neither CPS nor the family court found that the daughters are at
risk of abuse, and it would be improper to find that the family court was clearly wrong
based on the record on appeal.

Father also argues that the family court committed error by referencing a statement
made by the trooper that the family court earlier ruled should not be part of the record.
Father is correct that the family court sustained hearsay objections to the trooper’s
statements during the family court hearings. However, while the Order’s reference to the
officer’s statements is erroneous, we find that the error was harmless. Pursuant to Rule 61
of the West Virginia Rules of Civil Procedure, 8 the appropriate test for harmless error is
whether a court can “say with fair assurance, after stripping the erroneous evidence from
the whole, that the remaining evidence was independently sufficient to support the verdict
and that the judgement was not substantially swayed by the error.” Stephens v. Rakes, 235
W. Va. 555, 573, 775 S.E.2d 107, 125 (2015) (citations omitted) (internal quotation marks
omitted). It is clear the family court did not base its Order on the trooper’s statements.
Further, if the trooper’s statements were removed from the record, the remaining evidence
is sufficient to support the family court’s decision.

Finally, Father argues that the family court should not have admitted the 2016
temporary parenting plan that was issued after Father took the children to Eastern Europe.
According to Father, the 2016 temporary Order does not reflect the final parenting plan
entered in 2018.

8
Pursuant to the Family Court Rules of Practice and Procedure’s incorporation of
the West Virginia Rules of Civil Procedure in evidentiary matters, considerations regarding
error contained within Rule 61 of the Rules of Civil Procedure are applicable. See Matthew
H. v. Heather H., No. 15-1074, 2016 WL 6312069, at *5 (W. Va. Oct. 28, 2016)
(memorandum decision) (applying Rule 61 to an appeal of an evidentiary dispute arising
in a family court proceeding); see also Keen v. Coleman, No. 21-0144, 2022 WL 1744509,
at *4 (W. Va. May 31, 2022) (memorandum decision) (quoting Syl. Pt. 2, Boggs v. Settle,
150 W. Va. 330, 330, 145 S.E.2d 446, 447 (1965) (“On appeal of a case involving an action
covered by the Rules of Civil Procedure, this Court will disregard and regard as harmless
any error, defect or irregularity in the proceedings in the trial court which does not affect
the substantial rights of the parties.”)).

5
West Virginia Code § 48-9-206(c) (2022) typically bars a family court from
considering a prior temporary parenting plan’s custodial arrangement when determining
the permanent parenting arrangement. However, West Virginia Code § 48-9-209(a)(4)
(2022) also obligates a family court to consider a parent’s persistent interference with the
other parent’s access to the children when a family court is determining parenting plans.
The South Carolina family court order found that Father took the children to Eastern
Europe against Mother’s wishes, and that Father interfered with Mother’s custodial rights.
As a result, the South Carolina family court established a temporary parenting plan to
prevent further interference.

In the family court hearing in this matter, Mother questioned Father about the 2016
Eastern Europe incident, and Father denied that he took the children without informing
Mother. While West Virginia Code § 48-9-206(c) generally prohibits consideration of prior
temporary parenting plans, here, the South Carolina court’s 2016 order was used to
contradict Father’s testimony that Mother agreed to the Eastern European trip. As a result,
the temporary order was introduced into evidence for impeachment purposes; not to argue
that the temporary plan’s custodial allocation should be adopted by the family court.
Therefore, we find no error.

We conclude that the family court’s September 16, 2022, Order was not clearly
wrong, and the family court did not abuse its discretion. Finally, any error made by the
family court in its order was harmless.

Accordingly, we affirm.

Affirmed.

ISSUED: May 23, 2023

CONCURRED IN BY:

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

6