Michael S. v. Savannah S.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MICHAEL S., December 4, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-197 (Fam. Ct. Raleigh Cnty. Case No. FC-41-2016-D-144)

SAVANNAH S.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Michael S. (“Father”)1 appeals the Family Court of Raleigh County’s
April 25, 2025, final order, which attributed income to him for child support calculation
purposes. Respondent Savannah S. (“Mother”) responded in support of the family court’s
decision.2 No reply was filed.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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. For the reasons set forth below, a memorandum decision
vacating the family court’s order and remanding the matter for further proceedings is
appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties were previously married and share three children, born in 2009, 2011,
and 2013. Events leading to this appeal began when Mother filed petitions for contempt
and modification.3 Hearings were held on her petitions in October 2022, January 2023, and
March 2023. During those hearings, Father testified that he quit his job as a surface coal
miner to have more time with the children. After that, he obtained a job where he earned
$10.60 per hour. He later obtained a job earning $22.00 per hour but was laid off within six
to eight months. When the court inquired about the timing of his employment transitions,

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).

Father is represented by Lindsey C. Thompson, Esq. Mother is represented by
2

Brandon L. Gray, Esq.
3
The petitions were not included in the record; therefore, it is unclear what type of
parenting arrangement the parties shared prior to 2022.
1
he responded that he did not know if it was a coincidence that his work hours became more
child friendly when court was pending and stated that he thought the proceedings were
about the children, not money. Mother testified that Father informed her that he earned
$47.00 per hour. The final order was entered on April 24, 2023. Father was ordered to pay
Mother $621.75 per month in child support effective May 1, 2023.

On October 11, 2023, Father filed a petition to decrease his child support obligation,
wherein he argued that he previously worked fifty hours per week, but his time had been
reduced to forty hours or less. The parties appeared for a hearing on Father’s petition on
January 8, 2024. By order entered January 23, 2024, the family court denied Father’s
petition because the decrease in his salary did not amount to more than a fifteen percent
reduction under the child support formula.

On January 2, 2024, Father filed a petition for modification of custody. As grounds
for his petition, he alleged the following: that the maternal grandfather had filed a petition
for guardianship of the children; the oldest child wished to live with Father; the children
ran away from home; the oldest child drank alcohol at fourteen years old; Mother had
insufficient food for the children; Mother flipped over the oldest child’s bedroom furniture
and hit him in the mouth; the middle child vomited because he was nervous about returning
to Mother’s home; the middle child texted Father about being depressed; and the two older
children had failing grades under Mother’s care. Father also filed a proposed parenting plan
requesting that Mother receive parenting time every other weekend.

On June 5, 2024, a hearing was held on Father’s petition. The parties reached a
temporary agreement that Father’s child support obligation would be reduced to $400 per
month. The final hearing on Father’s petition was held on October 1, 2024, during which
the parties reached a further agreement that Father would be the designated primary parent
of the oldest child and Mother would be the designated parent of the two younger children.
The parties also agreed that Father would continue paying $400 per month in child support.
The modification order was entered on October 15, 2024.

Another hearing was held on April 15, 2025.4 The final order was entered on April
25, 2025, and stated that the parties reached a custody agreement, but that child support
would need to be recalculated. Regarding child support, Wife requested that Father be
attributed a coal miner’s wages and that child support be calculated using the formula for
extended shared parenting. Father objected and argued that he took a different job to be
home with the children. He testified that his highest grossing job was when he worked as
a strip coal miner and earned under $80,000 per year. However, at the time of the hearing,
Father also submitted a “new employee information sheet” establishing that he presently
earned $29,740 annually as a bus driver. Despite Father’s proof of current income, the

4
It is unclear from the record what type of petition was filed or who filed it.
2
family court attributed an $80,000 yearly income and found that he purposely left his higher
paying job as a coal miner to presumably secure a lower child support obligation.

Regarding the child support calculation, the final order stated that the extended
shared parenting formula (Worksheet B) should be used and that Mother’s child support
obligation would be $250 per month effective May 1, 2025.5 The family court’s order did
not provide any specific findings regarding the $250 amount, which was lower than the
amount calculated using the basic shared calculation.6 The final order was entered on April
25, 2025. It is from that order that Father now appeals.

For these matters, we apply 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 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., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Father argues that the family court failed to consider applicable law or
properly apply West Virginia Code § 48-1-205 (2023) when it attributed him additional

5
It is unclear how or why the family court set Mother’s child support obligation at
$250 per month. The court made no findings as to Mother’s income or any credits Mother
and Father were to receive in the child support formula. Pursuant to the record, the family
court’s child support calculation for the two older children had Mother paying Father
$519.33 in monthly support. The family court’s calculation for the youngest child had
Father paying $815.37 to Mother. Taking the difference between the two, Father would
owe Mother $296.04 in child support. The order indicates that the family court used the
basic shared calculation (Worksheet A) instead of the extended shared parenting formula
(Worksheet B), which was contrary to what is stated in the order and what was decided at
the hearing. The difference in formulas may be the basis for the discrepancy, but it is not
addressed in the order. However, neither party raised this issue on appeal. Accordingly, we
deem it waived for the purposes of this decision. See Grimes v. Plumley, No. 12-1425, 2013
WL 5967042 (W. Va. Nov. 8, 2013) (memorandum decision) (holding that issues that could
have been raised on appeal but were not are waived).
6
Even if this Court assumes that Mother should be the parent to pay child support,
the family court provided no analysis on why it chose to deviate from the child support
formula, which would have set the obligation at $296.04.
3
income without making any findings or allowing an evidentiary hearing on the issue of
child support. We agree. West Virginia Code § 48-1-205 defines attributed income as
“income not actually earned by a parent, but which may be attributed to the parent because
he or she is unemployed, not working full time, or is working below full earning capacity
[. . .].” This Code section further states that:

Income may be attributed to a parent if the court evaluates the specific
circumstances of the parent to the extent known, including such factors as
the parent’s assets, residence, employment and earnings history, job skills,
educational attainment, literacy, age, physical and mental health, criminal
record, and other employment barriers, and record of seeking work, as well
as the local job market, the availability of employers willing to hire the
parent, prevailing earnings level in the local community, and other relevant
background factors in the case.

Id. Additionally, pursuant to West Virginia Code § 48-1-205(b), an obligor’s income may
be attributed based on his previous income when the obligor:

(1) voluntarily leaves employment or voluntarily alters his . . . pattern of
employment . . . (2) is able to work and is available for full-time work . . .
and (3) is not seeking employment in the manner that a reasonably prudent
person . . . would do.7

Further, West Virginia Code § 48-1-205(c)(1) states that income shall not be attributed to
an obligor who is providing care to children who are in a “situation requiring particular
care by the parent.”

In addition to the above-cited sections, West Virginia Code § 48-13-702(a) (2001)
provides guidance regarding situations where deviation from the child support formula
result may be necessary. It states as follows:

If the court finds that the guidelines are inappropriate in a specific case, the
court may either disregard the guidelines or adjust the guidelines-based
award to accommodate the needs of the child or children or the circumstances
of the parent or parents. In either case, the reason for the deviation and the
amount of the calculated guidelines award must be stated on the record
(preferably in writing on the worksheet or in the order). Such findings clarify
the basis of the order if appealed or modified in the future.

7
A family court must consider the three-part test in deciding whether to attribute
income. See Melinda H. v. William R., 230 W. Va. 731, 734-35, 742 S.E.2d 419, 422-23
(2013) (citing Porter v. Bego, 200 W. Va. 168, 176, 488 S.E.2d 443, 451 (1997)) (emphasis
added).
4
Here, the family court failed to include sufficient findings of fact in its final order
to support its decision to attribute income to Father despite Father’s assertion that he took
the job as a bus driver to have more time with his children. Additionally, the family court
failed to explain its reasoning for deviating from the child support formula calculation, as
required by West Virginia Code § 48-13-702(a). See generally Dusti A. v. Jonathan A., No.
23-ICA-125, 2024 WL 794624 (W. Va. Ct. App. Feb. 27, 2024) (memorandum decision).

The Supreme Court of Appeals of West Virginia has said that to properly review an
order of a family court, “[t]he order must be sufficient to indicate the factual and legal basis
for the [family court]’s ultimate conclusion so as to facilitate a meaningful review of the
issues presented.” See Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904
(1996). Therefore, we must remand this case to the family court for entry of a new order
containing additional findings of fact.

The family court certainly has the authority to make credibility determinations if it
finds either party’s representations to be not credible, but it must include its reasoning for
such a determination in its analysis. See State v. Guthrie, 194 W. Va. 657, 669 n. 9, 461
S.E.2d 163, 175 n.9 (1995) (holding that “[a]n 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.”).

Accordingly, we vacate the family court’s April 25, 2025, order and remand the
matter to the family court with directions to enter a new order with sufficient findings and
analysis on the issues of attribution of income, deviation from the child support formula,
and credibility, which would facilitate a meaningful appellate review should either party
elect to file a new appeal.

Vacated and Remanded, with Directions.

ISSUED: December 4, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

5