Storrie v. Simmons

• Citation: 225 W.Va. 317,693 S.E.2d 70
• Decision Date: 02 April 2010
• Docket Number: No. 35289,35445.,35289
• Parties: Dianna Brekke STORRIE, Petitioner Below, Appellantv.Christopher Michael SIMMONS, Respondent Below, AppelleeandCharles D. Kittle, Petitioner Below, Appelleev.Susan R. Burke, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

225 W.Va. 317

693 S.E.2d 70

West Virginia.

Dianna Brekke STORRIE, Petitioner Below, Appellant

v.Christopher Michael SIMMONS, Respondent Below, AppelleeandCharles D. Kittle, Petitioner Below, Appellee

v.Susan R. Burke, Respondent Below, Appellant.

Nos. 35289, 35445.

Supreme Court of Appeals of

Submitted March 2, 2010.

Decided April 2, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. “In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, 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.” Syllabus Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. “ ‘The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.’ Syllabus point 1 Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” Syllabus point 7 Dan's Carworld, LLC v. Serian, 223 W.Va. 478, 677 S.E.2d 914 (2009).

3. “In considering visitation issues, the courts must also be mindful of facilitating the right of the non-custodial parent to a full and fair chance to continue to have a close relationship with his children.” Syllabus point 9 White v. Williamson, 192 W.Va. 683, 453 S.E.2d 666 (1994).

Cinda L. Scales, Esq., Martinsburg, WV, for Appellant Dianna Brekke Storrie.

Robert D. Aitcheson, Esq., Charles Town, WV, for Appellee Christopher Michael Simmons.

Elgine Heceta McArdle, Wheeling, WV, for Appellant Susan R. Burke.

Teresa Clark Toriseva, Wheeling, WV, for Appellee Charles D. Kittle.

David B. Cross, Wellsburg, WV, Guardian Ad Litem for Docket No. 35445.

PER CURIAM:

In these consolidated actions, Appellants Dianna Brekke Storrie (“Storrie”) and Susan R. Burke (“Burke”) each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both actions the biological fathers of the children, Appellees Christopher Michael Simmons (“Simmons”) and Charles D. Kittle (“Kittle”) respectively, opposed the relocations. For the reasons set forth herein, in Storrie v. Simmons, the Court reverses the final Order of the Circuit Court of Berkeley County, West Virginia, and remands for entry of an order granting Storrie's Motion for Modification and establishing a new parenting plan. In Kittle v. Burke, the Court affirms the final Order of the Circuit Court of Ohio County, West Virginia, denying Burke's Petition for Modification, but remands the case for reconsideration of the parenting plan now in effect, to ensure that the terms of the plan are in accordance with the children's best interests.

I.FACTS AND PROCEDURAL HISTORY

Because each of the two actions consolidated for the purposes of this appeal has a distinct set of facts, the factual and procedural history of each is addressed separately.

A. Storrie v. Simmons

Storrie and Simmons were married in 2000, and their union produced two sons, A.S., born in 2001, and J.S., born in 2003.¹ The couple divorced in July 2007 and Storrie was awarded primary custodial responsibility of the children. The custody agreement gave Simmons visitation with the children on Wednesday nights from 5 p.m. to 7 p.m. during the school year, as well as three weekends a month, every other week during the summer, and fifty percent of any school vacation time at holidays. Storrie was designated the “custodial parent” for state and federal law purposes, but each parent was permitted to claim one child on their taxes. They shared decision-making responsibility.

In 2007, Simmons moved from Berkeley County, West Virginia, where Storrie lives with the children, to Waynesboro, Pennsylvania, with his girlfriend, Anne Clark. Waynesboro is approximately forty-five minutes from Storrie's residence in Berkeley County, so Simmons continued to see the children at the regularly-scheduled times.

In July 2008, Storrie filed a Notice of Relocation and Motion to Modify the custody arrangement with the Family Court of Berkeley County, West Virginia. She had remarried in 2007 and her new husband, Robert Ricks, an active duty member of the U.S. Marines, had been reassigned to Camp Lejeune in North Carolina. Accordingly, Storrie sought the family court's permission to move with the two children to Topsail Island, North Carolina, which is next to Camp Lejeune. She submitted a proposed parenting plan in which the children would reside with her in North Carolina during the school year, but would spend half of their summer vacation, a week at Christmas, half of their Thanksgiving and spring breaks, as well as “any other times agreed on by parties,” with their father. Notably, while not documented in the record on appeal, Storrie asserts in her appellate brief that, after submitting her original proposed parenting plan, she further agreed that, in addition to half of all holidays, the children could stay with their father for eight weeks in the summer, as well as one weekend a month. She contends that she agreed to drive the children from North Carolina to West Virginia for those monthly visits. She further asserts that, under this proposed plan, Simmons would have essentially the same amount of time with the children as he does under the current parenting plan. ² Simmons objected to Storrie's motion for modification.

Despite finding that Storrie had exercised the significant majority of custodial responsibility and that her proposed relocation was in good faith, for a legitimate purpose, and to a reasonable location in light of that purpose, the Family Court of Berkeley County, West Virginia, denied Storrie's Motion for Modification in a final Order issued on November 21, 2008. It noted that the relocation would significantly impair Simmons's ability to exercise his custodial time under the current parenting plan, and found that it is not practical to revise the parenting plan to accommodate the relocation and maintain the same proportion of time between the parents. After reviewing reports from Bernard Lewis, PhD, a clinical psychologist who interviewed the children, and Susan Lohman, a custody evaluator whom the court appointed to complete a custody investigation pursuant to West Virginia Code § 48-9-301 (2009),³ the family court noted that the children were strongly bonded with their father, and found that the move would harm their relationship with him, as well as their relationship with their paternal grandparents and their father's girlfriend. The family court ultimately concluded that the relocation was not in the children's best interest and, thus, denied the motion.

Storrie filed a Petition for Appeal of the family court's Order with the Circuit Court of Berkeley County, West Virginia. On January 23, 2009, the circuit court summarily denied, without a hearing, Storrie's petition. It is from this denial that Storrie appeals.

B. Kittle v. Burke

Burke and Kittle divorced in October, 2002, and Burke was awarded primary custody of their two daughters, K.K., born in 1996, and H.K., born in 1999. Under the original parenting plan, Burke and Kittle shared decision making responsibility, Burke retained physical custody of the children, and Kittle was granted visitation “at such reasonable and convenient times as the parties may agree on.” For federal and state statutory purposes, the custodial split was designated as seventy percent of time with mother, thirty percent with father.

Immediately following the divorce, Burke moved with the children from Martinsburg, West Virginia, where they had resided with Kittle, to Wheeling, West Virginia. Kittle remained in Martinsburg for several years. In October 2004, Burke remarried and subsequently had two sons with her new husband, Sean Burke. In the fall of 2005, Kittle moved to Wheeling with his new girlfriend, Erin Greenfield, in order to be closer to his daughters. In early 2006, with Kittle now living in the same town as the children, Kittle and Burke agreed to a new parenting plan, splitting custody of K.K. and H.K. evenly. The plan provided that, during the school year, the children would spend Mondays and Tuesdays with their mother, Wednesdays and Thursdays with their father, and alternate between the two parents on the weekends (Friday-Sunday). Summer break and holidays were split between the parents. For child support purposes, Burke was allocated 183 overnights and Kittle 182 overnights.⁴

In October 2007, Burke filed a petition with the Family Court of Ohio County, West Virginia, seeking to modify the parenting plan to allow her to relocate with the girls to Irmo, South Carolina, where her husband had been offered a new job. Sean Burke, a computer programmer, had been recruited for a management position and offered a $13,000 a year pay increase, as well as a starting bonus. In filing her Petition for Modification, Burke proposed a new parenting plan in which Kittle would have custody of the children approximately 94 days a year. Specifically, she proposed that the girls reside with her in South Carolina during the school year, but visit their father one weekend a month during January, February and October. Additionally, she proposed that the children spend nine weeks with their father during the summer, as well as all spring breaks and alternating holidays.

Kittle opposed the Petition for Modification, and both parties made cross-claims of unfitness. Kittle alleged that Burke's new husband had engaged in several incidences of domestic violence, used drugs, and had harbored a fugitive at one time. Burke asserted that Kittle himself engaged in domestic violence when they were married and, while she admitted that her husband had used drugs in the past, she indicated that he had undergone...