West v. Scott T., 13-0739
| Decision Date | 06 November 2014 |
| Docket Number | No. 13-0739,13-0739 |
| Court | West Virginia Supreme Court |
| Parties | AMIE W., Petitioner Below, Petitioner, v. SCOTT T., Respondent Below, Respondent |
Petitioner Amie W. ("mother"),1 through her counsel, Sherman L. Lambert, Sr., appeals the order entered in the Circuit Court of Mineral County on June 24, 2013, that affirmed a family court order entered May 9, 2013, which designated the home of the respondent, Scott T. ("father"), as the primary residence for the parties' children and modified the parties' parenting plan. The father appears through his counsel, Lawrence E. Sherman Jr. The parties' children appear through their guardian ad litem, Kelley A. Kuhn. On appeal, the mother argues that the family court erred by altering her parenting time with her children. The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented. Upon consideration of the standard of review, the briefs, the record presented and the arguments of counsel, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
The parties are the parents of two children: L.T., who is now nine years of age, and B.T., who is now seven years of age. The parties were divorced by order of the Family Court of Mineral County entered on August 15, 2011. At the time of the entry of the final order both parents lived in Mineral County. The parties entered into an agreed parenting plan which provided for shared parenting, with the mother's home being designated as the primary residence of the children. As per the plan, the children resided in their father's home for eight overnights per month, and the children attended Mineral County schools. This parenting plan required coordination of the parents' fluctuating work schedules.2
In late 2011, the mother moved the children from Mineral County to Cumberland, Maryland, where her boyfriend lived, and enrolled the children in the Allegany County school system.3 The father averred that he did not realize that his children had left Mineral County schools until he went to a parent-teacher conference in January of 2012 and was told of this by the principal. The father hired a private investigator to find the location of the children. The mother did not file a notice of relocation pursuant to W. Va. Code § 48-9-403 (2001).4 In a petition for contempt and modification of the final divorce order filed by the father in December of 2012,5 the father alleged that the relocation was not in the children's best interests. Furthermore, he alleged that the mother's renunciation of the family's previously practiced religion was adversely affecting the children because the mother and her boyfriend no longer recognize traditionally celebrated holidays within the family, including Thanksgiving, Christmas, Easter and the children's birthdays.6 He also argued that the home in which the mother resided was not in a safe neighborhood and was in a state of disrepair.
The family court appointed a guardian ad litem for the children. This guardian ad litem had previously been appointed during the parents' underlying divorce proceeding and was familiar with the parties and the children. The guardian ad litem's report and recommendation to the family court also emphasized the poor condition of the mother's home in Maryland. The guardian ad litem went to the mother's home and found that the general condition of the houses in the neighborhood was dilapidated. The home in which the children resided appeared to be leaning or crooked on the foundation. While the inside of the house was in better shape than the outside, the interior was "in need of much maintenance and repair." The guardian ad litem also expressed concern about the stability of the mother's housing situation. The guardian ad litemstated that The guardian ad litem concluded that the home of the mother and the neighborhood were not comparable to that to which the children had become accustomed.7
In addition to the concerns expressed in the guardian ad litem's report, testimony was taken at a hearing in the family court regarding the children's emotional difficulties with their mother's changing religions observations. During the hearing in family court, the mother testified that she did not follow any organized religion but strictly adhered to Biblical holidays and teachings. The mother agreed that she did not celebrate Thanksgiving, Christmas, Easter or the children's birthdays, although she was not opposed to the children celebrating these holidays with their father or other persons. The father testified that the children were confused by the change in their mother's view of religion and the celebration of holidays. The guardian ad litem testified that the children were adversely affected by the mother's change in regard to holiday celebrations and did not understand why this change had been made. During the hearing, the guardian ad litem was repeatedly asked if her recommendations were in the children's best interests, to which she responded in the affirmative.8
The family court found that there had been a substantial change in circumstances since the last court hearing based upon the testimony of the parties and the report and testimony of the guardian ad litem. The court found that the children were confused by the mother's religious beliefs, including her failure to celebrate holidays and birthdays. The court ordered that the primary residence of the children should be returned to West Virginia and be in the father's home, and that the children should be educated in Mineral County, not Allegany County.9 The court order found that the mother and father should share in an equal manner custodial responsibility and decision-making for the children, and that the parents had agreed on a schedule wherein the children would spend equal time in each parent's home. The family court awarded equal allocation of custodial responsibility to each parent, ordering an alternating schedule where the children would be with one parent for four days, with the other parent having the children for the remaining three days. The following week, the scheduled would be reversed for each parent. On the basis of the findings and conclusions, the family court modified the parenting plan, awarding the majority of holidays and the children's birthdays to the father based upon the mother's professed lack of celebration of the same.
The mother appealed the family court's ruling to the Circuit Court of Mineral County, arguing that the family court used the petitioner's religion as a factor in its decision; made the rulings based on the guardian ad litem's recommendation, not in the best interests of the children; and changed the school district based upon the guardian ad litem's recommendation, not in the children's best interests.
By order entered June 24, 2013, the circuit court affirmed the family court's decision, concluding that the family court did not abuse its discretion in ordering shared custodial responsibility and decision-making and in returning the children's primary residence, including their schooling, to Mineral County, West Virginia. The circuit court found that there was sufficient evidence to justify the modification of the parties' parenting plan, including the mother's relocation to another state and another school system without notice to the father, relocation to a home with a standard of living lower to that which the children had become accustomed, and the mother's adoption of religious practices different from those to which the children were accustomed, without any input from the father. With respect to the effect of the difference in religious views between the mother and the children, the circuit court found that the family court "was appropriately concerned with the impact the [mother's] 'new' religious beliefs was having upon her children," and that the family court properly took into account the oldest child's confusion at no longer being allowed to celebrate Christian holidays or birthdays in the manner to which she was accustomed. The circuit court specifically found that "[u]sing this issue as a factor in determining a change of custody . . . does not violate any right the [mother] has to practice her new religion," but merely represents the vast difference between it and "everything that the children have been raised with." The circuit court further found it was not in the best interests of the children to have their beliefs challenged in this manner by the mother. The mother seeks this Court's review of the circuit court's June 24, 2013, order.
The manner in which this Court reviews a circuit court order regarding a family court order is well-established as follows:
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.
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
The mother asserts two assignments of error in this appeal. The first is that the family court erred by changing the primary residence of the children from the home of the mother to the home of the father based upon the recommendation of the guardian ad litem. She asserts that the change in the children's primary residence was not in the best interest of the children. Her second assignment of error is that the lower courts'...
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