Rachel B. v. Benjamin B.

• Docket Number: 25-ICA-8
• Decision Date: 06 June 2025
• Citation: Rachel B. v. Benjamin B., 25-ICA-8 (W. Va. ICA Jun 06, 2025)
• Parties: RACHEL B., Petitioner Below, Petitioner v. BENJAMIN B., Respondent Below, Respondent
• Court: West Virginia Intermediate Court of Appeals

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RACHEL B., Petitioner Below, Petitioner v. BENJAMIN B., Respondent Below, Respondent

No. 25-ICA-8

West Virginia Intermediate Court of Appeals

June 6, 2025

(Fam Ct. Cabell Cnty. CaseNo. FC-06-2018-D-415)

MEMORANDUM DECISION

Petitioner Rachel B.^[1]("Mother") appeals the Family Court of Cabell County's December 2, 2024, order denying her petitions for modification and contempt.Respondent Benjamin B. ("Father"), responded in support of the family court's decision.^[2]Mother filed a reply.

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 decision and remanding for further proceedings is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties were married in 2011 and divorced by order entered in 2018.One child ("Child") was born of the marriage in 2013.In the original parenting plan, the parties had a 2-2-3 visitation schedule.In July 2021, the court entered an order requiring Mother's parenting time be supervised.Later in 2021, Mother underwent a court-ordered psychological evaluation.^[3]She was diagnosed with moderate depression, anxiety, and post-traumatic stress disorder ("PTSD").Between 2021 and 2023, Father filed four petitions for contempt against Mother.^[4] In late 2023, Mother filed a petition for custody modification.An order was entered on October 19 2023, reflecting the parties' agreement that Mother's Wednesday and Thursday visits would be unsupervised, but holidays and vacations would remain supervised.

Events leading to this appeal began when Mother filed petitions for contempt and custody modification in October of 2024.In her petition for contempt, Mother alleged that Father talked poorly about her in front of Child; he threatened intimidated, and stalked her; he interfered with her parenting time and threatened to publicly defame her; and he routinely scheduled Child's appointments without notifying her.In her petition for modification, she requested that the requirement of supervised visitation be removed, she be named the primary residential parent with sole decision-making authority for Child's sports because Father created a hostile environment for the coaches, and that she be given the right of first refusal to care for Child if Father is unable to exercise his parenting time.

In support of her petition for modification, Mother stated that she had maintained employment with the same employer for fourteen years.She became a grant writer for a medical facility in 2021, and in 2024, she began work as a grant manager for a university.Mother averred that she has maintained stable housing within Child's school district and near his sporting events.Mother further stated that she is on Child's little league board of directors and leads their fundraising and social media.She further noted that she underwent a voluntary psychiatric evaluation and has successfully continued with therapy since 2021.Additionally, Mother stated that Father has discredited her to Child, regularly allowed a third party to watch Child even though Mother was available, and has failed to attend any of Child's games or batting lessons.

On December 2, 2024, the family court entered an order denying Mother's petitions, holding that she failed to prove any of the allegations from her contempt petition and failed to prove that a substantial change in circumstances had occurred.It is from this order that Mother 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);accordW.Va. Code § 51-2A-14(c)(2005)(specifying standards for appellate court review of family court orders).

On appeal, Mother raises seven assignments of error.Because several assignments of error are similar, we will consolidate them for our review.See generallyTudor's Biscuit World of Am. v. Critchley,229 W.Va. 396, 402, 729 S.E.2d 231, 237(2012)(stating that "the assignments of error will be consolidated and discussed accordingly").

In her first, second, third, and fifth assignments of error Mother asserts that the family court acted contrary to Child's best interest by misapplying West Virginia Code § 48-9-102(2022)^[5] and § 48-9-401(2022).In support of her arguments, Mother states that the family court erroneously failed to find that a substantial change in circumstances occurred and failed to address the alleged existence of limiting factors as required in § 48-9-209(2024).We conclude that Mother's arguments have merit.

The statute governing a modification of a parenting plan applicable to these assignments of error provides that:

Except as provided in § 48-9-402 or § 48-9-403 of this code, a court shall modify a parenting plan order if it finds, on the basis of facts that were not known or have arisen since the entry of the prior order and were not anticipated in the prior order, that a substantial change has occurred in the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child.

W.Va. Code § 48-9-401(a)(2022).The burden is on the party seeking the modification to establish the required substantial change of circumstances.SeeGoff v. Goff, 177 W.Va. 742, 356 S.E.2d 496(1987)(holding that the burden of proof is on the parent seeking to modify the parenting plan).

To justify modifying a parenting plan upon a showing of changed circumstances pursuant to West Virginia Code § 48-9-401, the Supreme Court of Appeals of West Virginia("SCAWV") has held that the three following criteria must be established:

First, the facts relevant to the change in circumstances must not have been "known" or "anticipated" in the order that established the parenting plan.Ibid.Second, the change in circumstances, whether "of the child or of one or both parents[,]" must be "substantial[.]"Ibid.Third, the modification must be "necessary to serve the best interests of the child."

Jared M. v. Molly A.,246 W.Va. 556, 561, 874 S.E.2d 358, 363(2022).The Court went on to explain:

"[U]nder the plain meaning of the statute, the relevant question is not whether a particular change in circumstance could have been anticipated, but whether the parenting plan actually did anticipate, and provide accommodation for, the particular change."Skidmore v. Rogers, 229 W.Va. 13, 21, 725 S.E.2d 182, 190(2011)."The phrase 'not anticipated therein' does not mean that the change in circumstance could not have been anticipated generally, but rather that the parenting plan order does not make provisions for such a change."

Id. at 562, 874 S.E.2d at 364(2022).

The statute governing limiting factors is West Virginia Code § 48-9-209, which provides a list of factors to be considered when determining whether a 50-50 parenting plan is feasible and/or appropriate.The non-exclusive list includes considerations such as whether a parent has committed domestic violence, is addicted to controlled substances or alcohol, repeatedly causes the child to be in the care of a third party when the other parent is available, a parent's mental health, and whether a parent will encourage a positive relationship between the child and the other parent, to name a few.Here, the family court's final order failed to include sufficient analysis regarding Mother's personal improvements and failed to address whether limiting factors existed and to what extent those factors affected either party's parenting.The Supreme Court of Appeals of West Virginia has previously remanded insufficient orders finding 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."Province v. Province,196 W.Va. 473, 483, 473 S.E.2d 894, 904(1996);see alsoNestor v. Bruce Hardwood Flooring, L.P.,206 W.Va. 453, 456, 525 S.E.2d 334, 337(1999)("[O]ur task as an appellate court is to determine whether the circuit court's reasons for its order are supported by the record.")."Where the lower tribunals fail to meet this standard- i.e. making only general, conclusory or inexact findings-we must vacate the judgment and remand the case for further findings and development."Province,196 W.Va. at 483, 473 S.E.2d at 904.

Collisi v. Collisi, 231 W.Va. 359, 363-64, 745 S.E.2d 250, 254-55(2013).Therefore, we vacate and remand on the first, second, third, and fifth assignments of error with directions for the family court to issue a new order sufficient for appellate review addressing the applicable limiting factors in West Virginia Code § 48-9-209.

In her fourth assignment of error, Mother contends that the family court erred when it refused to admit her medical treatment letters and records into evidence.We disagree.West Virginia Code § 51-2A-8(2017) states that the West Virginia Rules of Evidence apply to family court proceedings.Rule 901(a) of the West Virginia Rules of Evidence states that a proponent of evidence "must produce evidence sufficient to support a...