Brooke B. v. Donald Ray C.

• Decision Date: 24 January 2013
• Docket Number: No. 11–1085.,11–1085.
• Court: West Virginia Supreme Court
• Parties: BROOKE B., Petitioner v. Donald RAY C., II, Respondent.

230 W.Va. 355

738 S.E.2d 21

BROOKE B., Petitioner

v.Donald RAY C., II, Respondent.

No. 11–1085.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 2013.

Decided Jan. 24, 2013.

Syllabus by the Court

1. “The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibition is de novo.” Syllabus Point 1, Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (1997).

2. “Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

3. “Cases involving children must be decided not just in the context of competing sets of adults' rights, but also with a regard for the rights of the child(ren).” Syllabus Point 7, In re Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995).

4. “Pursuant to the plain language of W.Va.Code § 44–10–3(a) (2006) (Supp.2007), the circuit court or family court of the county in which a minor resides may appoint a suitable person to serve as the minor's guardian. In appointing a guardian, the court shall give priority to the minor's mother or father. ‘However, in every case, the competency and fitness of the proposed guardian and the welfare and best interests of the minor shall be given precedence by the court when appointing the guardian.’ W.Va.Code § 44–10–3(a).” Syllabus Point 6, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

5. “In exceptional cases and subject to the court's discretion, a psychological parent may intervene in a custody proceeding brought pursuant to W.Va.Code § 48–9–103 (2001) (Repl.Vol.2004) when such intervention is likely to serve the best interests of the child(ren) whose custody is under adjudication.” Syllabus Point 4, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).

6. W.Va.Code §§ 51–2A–2(a)(17) [2012] and 44–10–3(a) [2006] clearly and unambiguously grant a family court the subject matter jurisdiction to hear questions concerning guardianship of a child.

7. W.Va.Code §§ 51–2A–2(a)(6) [2012] and 48–9–103 [2001] clearly and unambiguously grant a family court the subject matter jurisdiction to consider establishing a parenting plan, or to otherwise allocate custodial responsibility or decision-making responsibility, to someone who intervenes in an action alleging they are a psychological parent.

8. Jurisdiction is a court's inherent power to decide a case; venue, however, designates the particular county in which a court having jurisdiction may properly hear and determine the case.

9. “A man may live in several different places but he can have only one domicile. Domicile is a place a person intends to retain as a permanent residence and go back to ultimately after moving away.” Syllabus Point 2, Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972).

10. “Because a determination of residency depends on the intent of the parties, it is typically a question of fact[.]” Syllabus Point 5, in part, Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. 16, 576 S.E.2d 261 (2002).

11. It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.

12. W.Va.Code § 44–10–3(a) [2006] places jurisdiction and venue of an infant guardianship action in the West Virginia county in which a minor resides. It is the minor's residency alone that controls, and not the residency of any other person such as a parent, guardian, or other person with custody or control of the minor. A determination of the minor's residency is typically a question of fact.

Andrew S. Nason, Esq., Pepper & Nason, Charleston, WV, Noelle A. Starek, Esq., Charleston, WV, for Petitioner.

Ariella G. Silberman, Esq., Kay, Casto & Chaney, PLLC, Charleston, WV, Guardian ad litem for A.C.

Mark A. Swartz, Esq., Allyson H. Griffith, Esq., Swartz Law Offices, Saint Albans, WV, for Respondent.

KETCHUM, Justice:

Since the founding of our State, this Court has abided by the principle that issues of child custody are to revolve around the best interests of the child. This appeal demonstrates what happens when sight is lost of that polar star principle.

The petitioner in this appeal contends that she is the psychological parent of a child. The child's biological mother has virtually no contact with the child. After the child's biological, custodial father (the respondent) pleaded guilty to several crimes and anticipated being incarcerated, the petitioner filed a motion to intervene in an existing family court action and sought either shared parenting with the father, or guardianship of the child if the father was sentenced to prison.

Instead of responding to the petitioner's factual contentions, the biological father petitioned the circuit court for a writ of prohibition. The father's current counsel claimed that the family court lacked subject matter jurisdiction to consider a motion for either shared parenting or guardianship. The circuit court granted the writ of prohibition and halted the family court's consideration of the petitioner's motion.

We reverse the circuit court's order granting the writ of prohibition, and find that the family court plainly had subject matter jurisdiction to consider the petitioner's motion.

I.FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 2003, the child at the center of this case—who we refer to as “A.C.”—was born. Her biological parents are Leslie F. and the respondent, Donald C. In a paternity action filed in the Family Court of Cabell County in 2004, Donald was adjudicated as the biological father, and was granted primary physical and legal custody of A.C. Although Leslie was afforded visitation rights, she has had no meaningful relationship with the child and rarely sees her. One party asserts the biological mother last visited the child in 2007. ¹

Donald had discovered that he was A.C.'s father when she was 20 months old. At the time, he was dating and living with the petitioner, Brooke B. Brooke asserts that after Donald took custody of A.C., and with the assent and encouragement of Donald, she began performing more than half of the parenting tasks for A.C. including financially supporting, housing, feeding, clothing, bathing, dressing and teaching A.C. For the next seven years, Brooke had a continuous and uninterrupted relationship with the child. She took the child to school, to doctor's appointments, to haircuts, and to school and extracurricular activities. The child's guardian ad litem states that A.C. “perceives Brooke ... as her mother,” and a psychologist reported that Brooke “fulfills the accepted description of a psychological parent.” ²

In 2009, Donald and Brooke ended their relationship. Brooke moved out of his house and into her own home in Kanawha County. However, through 2009 and 2010, A.C. allegedly spent the majority of her time living in Brooke's home, and Brooke continued to perform those parenting duties she had been performing throughout A.C.'s life. A.C. was enrolled in a private school in Kanawha County, had numerous friends in Kanawha County, and participated in extracurricular activities like plays and Girl Scouts in Kanawha County.

On January 6, 2011, Donald pleaded guilty to tax evasion and bank fraud in the United States District Court for the Southern District of West Virginia. His sentencing was scheduled for a later date, but he faced up to 35 years in prison. At approximately the same time, Donald refused to let A.C. stay at Brooke's house. Brooke alleges that Donald acted “to establish himself as a single parent performing the majority of parenting duties ... to impress the federal court and decrease his sentencing.”

Less than two weeks later, on January 18, 2011, Brooke filed a motion to intervene in Donald's paternity case in the Family Court of Cabell County. Brooke's motion asserted that she has been A.C.'s psychological mother since the child was 20 months old, and that the child lived with her in Kanawha County. Brooke asked the family court for a share of parenting duties, and for an order appointing Brooke as A.C.'s legal guardian while Donald was incarcerated. Copies of the motion were served on Donald and on the biological mother, Leslie F.

The Family Court of Cabell County, however, did not rule on Brooke's motion. Instead, the family court entered an order transferring the case to Kanawha County “because the Petitioner [Brooke] resides in Kanawha County and the minor child resided with the Petitioner in Kanawha County at the time of the filing of the petition.” ³

Shortly thereafter, Donald's attorney filed a motion to dismiss with the Family Court of Kanawha County. The motion did not challenge venue in Kanawha County. Donald's motion only asserted, as a matter of fact, that Donald was the primary caretaker of A.C. and that Brooke was not a psychological parent.

At a hearing on February 11, 2011, the family court declined to grant Donald's motion to dismiss ⁴ because resolution of the fact-based motion would require the taking of evidence and testimony. A hearing to take testimony was scheduled for March 17th. In the meantime, the family court, “based upon an agreement of the parties,” ordered Brooke and Donald to divide their custodial time with the child equally. The family court also ordered that A.C. not be removed from her private school in Kanawha County.

Shortly thereafter, Donald hired a new lawyer. The new lawyer filed a motion to continue the March 17th hearing, ostensibly because he would not have enough time to gather evidence and prepare for the hearing. The family court had a teleconference on the motion to continue on ...