Tevya W. v. Elias Trad V.

• Decision Date: 21 June 2011
• Docket Number: No. 35760.,35760.
• Citation: 227 W.Va. 618,712 S.E.2d 786
• Court: West Virginia Supreme Court
• Parties: TEVYA W., Petitioner Below, Appellantv.ELIAS TRAD V., Respondent Below, Appellee

227 W.Va. 618

712 S.E.2d 786

TEVYA W., Petitioner Below, Appellant

v.ELIAS TRAD

v.

, Respondent Below, Appellee

No. 35760.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 2011.Decided June 21, 2011.

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. “Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.” Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

3. “A reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

4. “ ‘In a contest involving the custody of infant children their welfare is the polar star by which the discretion of the court will be controlled, and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion.’ Syl. pt. 1, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977).” Syl. Pt. 1, Allen v. Allen, 173 W.Va. 740, 320 S.E.2d 112 (1984).

5. “In visitation as well as custody matters, we have traditionally held paramount the best interests of the child.” Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

6. “To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.” Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).

7. “Although parents have substantial rights that must be protected, the primary goal ... in all family law matters ... must be the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

8. “A change of custody should not be based only upon speculation that such change will be beneficial to the children.” Syl. Pt. 6, Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968).

9. “ ‘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).” Syl. Pt. 3, Storrie v. Simmons, 225 W.Va. 317, 693 S.E.2d 70 (2010).

John G. Ours, Petersburg, WV, for Appellant.Patricia L. Kotchek, Petersburg, WV, for Appellee.

PER CURIAM:

This is an appeal by Tevya W. (hereinafter “the Appellant” or “the mother”) from an order of the Circuit Court of Hardy County in which the circuit court affirmed the decision of the Family Court of Hardy County. The family court had refused to alter the custody arrangements for the Appellant's son, Elias,¹ presently age ten. Upon thorough review of the record, briefs, arguments of counsel, and applicable precedent, this Court finds that the circuit court committed no reversible error and therefore affirms its determination.

I. Factual and Procedural History

The Appellant and Elias Trad V. (hereinafter “the Appellee” or “the father”) are the parents of one son, Elias, born on January 17, 2001. When the Appellant and Appellee divorced in 2003, an approved shared parenting plan provided that Elias was to reside primarily with his mother, with an allocation of parenting time to his father. In July 2005, the Family Court of Hardy County temporarily transferred Elias' primary residency to the father due to the mother's drug usage.² In December 2005, the family court transferred full custody of Elias to the father, with visitation to the mother every other weekend. The father has been the primary custodial parent since that time.

On July 28, 2006, the mother filed a pro se petition to regain primary custody of Elias. She asserted that she had been drug-free since August 2005 and that such recovery should constitute a change of circumstances warranting an alteration of the custody arrangements.³ The family court found insufficient evidence to support a change of the shared custody arrangements. The record does not reflect that any appeal of this order was filed by the mother. It has thus become final and unappealable.

The father filed a motion for contempt on February 28, 2007, based upon the mother's alleged violation of the shared parenting plan. Upon review of the allegations, the family court found that the mother had failed to comply with residence relocation provisions, had failed to return Elias to his father in a timely fashion, and was in contempt for failure to pay child support.⁴

The mother filed a second petition to alter child custody arrangements on March 31, 2008, with the assistance of counsel, again contending that she was drug-free and that her circumstances had changed because she had remarried and wanted primary custody of Elias. A guardian ad litem, Amanda See, was appointed by the family court on May 19, 2008, for the stated purpose of determining whether either parent was exerting undue influence over the child or alienating one parent against the other. The guardian ad litem reported that the mother had “apparently advanced by leaps and bounds over her previous drug history,” but that Elias was in a stable living environment with the father. Upon thorough review, the family court again declined to grant the mother's petition for alteration of the custody order, finding insufficient change of circumstances and no evidence that a change in custody would benefit the child. That order did alter weekend custody, allowing the mother to have extended custody of Elias all weekends except one per month.⁵ Again, the record does not reflect that an appeal was filed by the mother. It has thus become final and unappealable.⁶

On January 12, 2010, the mother filed a third petition to alter the custody arrangements, thus originating the action that is currently on appeal to this Court. In that petition, the mother contended that the father had divorced his second wife, Ms. Terri Pennington, and had been using illegal drugs. The family court heard testimony from the mother and the father's ex-wife, Ms. Pennington, in support of the mother's petition for modification. The father presented the testimony of several witnesses, refuting the mother's testimony regarding his parenting abilities and relationship with Elias. Subsequent to these hearings conducted by the family court, the video recordings of which have been thoroughly reviewed by this Court, the family court entered a March 31, 2010, order finding insufficient cause for altering the custody arrangements. The family court found that although the father had three DUIs prior to the parties' marriage, there is “only one DUI that Petitioner can complain about and it was in 2006.” The family court noted that the DUI did not adversely affect the child; that modification petitions had been filed by the mother and refused since that DUI had occurred; and that the mother had not “borne her burden of proving by a preponderance of the evidence that drug use by Respondent [father Appellee] exists.” The family court noted the extensive record in this case and the numerous issues that had been presented to the family court. The family court found that the “child is thriving and the Court finds no reason in the evidence to modify this arrangement.” The Circuit Court of Hardy County affirmed the decision of the family court, and the mother thereafter appealed to this Court.

II. Standard of Review

In the syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), this Court enunciated the following standard of review:

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.

In the syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977), this Court explained that “[q]uestions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.” This emphasis on the discretionary determinations of the court having the opportunity to assess witness credibility and demeanor has been repeatedly recognized. “A reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

In acknowledging the appropriate standard of review to be exercised by this Court, we must also be mindful of the admonition of syllabus point one of Allen v. Allen, 173 W.Va. 740, 320 S.E.2d 112 (1984), as follows: “ ‘In a contest involving the custody of infant children their welfare is the polar star by which the discretion of the court will be controlled, and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion.’ Syl. pt. 1, Murredu v. Murredu, 160 W.Va. 610, 236...