Nancy S. v. John S. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Nancy S., FILED
Petitioner Below, Petitioner June 12, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-0716 (Cabell County 09-D-674) OF WEST VIRGINIA
John S.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Nancy S.1, by counsel D. Scott Bellomy, appeals the July 2, 2014, order of the
Circuit Court of Cabell County that denied her petition for modification of the order of the
family court that named Respondent John S. primary custodial parent of the parties’ minor
children. Respondent, by counsel Jacqueline Stout-Biddle, filed a response. Guardian Ad Litem
Raymond A. Nolan also filed a response. Petitioner filed a reply to the respondent’s brief.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, 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 were married in Lincoln County, West Virginia, on June 12, 1999. Two
children were born of the marriage, J.S. (ten years of age), and E.S. (eight years of age). The
parties were divorced by final order on March 9, 2010. In the March 9, 2010, order, petitioner
was deemed the residential parent and received 65% percent of parenting time.
On September 10, 2011, petitioner married Jason S. Mr. S. is a registered sex offender,
having been convicted of statutory rape in 1998. He received a sentence of four years probation
for his conviction. Mr. S. was twenty-one years old at the time of the offense. On November 3,
2011, respondent filed an emergency ex parte motion for custody; following a hearing,
respondent’s motion was granted. Mr. S. was ordered to have no contact with the minor children.
On April 22, 2013, a final order was entered, after a hearing on February 21, 2013, on
respondent’s motion for custody. Dr. Timothy Saar, a board certified psychologist, provided
expert testimony on behalf of petitioner; Dr. Bobby Miller, a board certified psychiatrist,
provided expert testimony on behalf of respondent. After hearing the testimony, reviewing expert
1
Consistent with our practice in cases involving sensitive matters, we use initials to
protect the identity of the children in this case. See W.Va. R.A.P. 40(e)(1); State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
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reports, and proffers of the guardian ad litem and counsel, the family court determined that it
would be in the children’s best interest for Mr. S. to be allowed contact with their children once
he completed a court-ordered program of treatment, and was re-evaluated to determine if his risk
to re-offend was reduced from moderate risk to low-risk. The order allowed visitation to resume
between the minor children and Mr. S. on May 10, 2013.
Petitioner filed a motion to stay the family court order. On August 2, 2013, the circuit
court entered an order reversing, in part, and remanding, in part, the April 22, 2013, order of the
family court. The circuit court’s order denied Mr. S. visitation with E.S. Petitioner filed a notice
of intent to appeal to this Court, which was dismissed, because the order of the circuit court was
interlocutory in that it remanded the case to family court to resolve other issues.
On September 26, 2013, petitioner filed a petition for modification of the family court’s
April, 22, 2013 order, a motion for contempt, and a motion to allow Mr. S. to be present around
the children during her visitation. A hearing was held on December 4, 2013. At that hearing, the
family court heard argument regarding respondent’s motion to dismiss, but declined to take
evidence on petitioner’s modification petition. The family court denied the petition by order
entered May 5, 2014. Petitioner appealed to the circuit court, and on July 2, 2014, the circuit
court denied petitioner’s modification petition without a hearing. Petitioner now appeals the July
2, 2014, order of the Circuit Court of Cabell County that denied her petition for modification2.
Petitioner asserts three assignments of error: (1) the circuit court erred in denying
petitioner’s modification petition and request that Mr. S. be permitted to be present at visits with
his stepchildren; (2) the family court erred in refusing to hear evidence that petitioner had
completed her court-required training and in refusing to return her to residential parent status;
and (3) the circuit court arbitrarily and capriciously substituted its judgment for that of the family
court when it reversed the April 22, 2013, order, refused to modify the parenting plan, and
upheld the family court’s order following the modification hearing.
In reviewing a final order entered by a circuit 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).
Petitioner first asserts that the circuit court erred in not granting her petition to modify
and motion to allow Mr. S. to be present during visitation. Petitioner argues that her motion
should have been granted pursuant to West Virginia Code § 48-9-401, which states in relevant
part, as follows:
2
In petitioner’s brief, she asserts that she is challenging the May 1, 2014, order of the
circuit court. However, our review of the appendix reveals no such order. Rather, it is apparent
that the order from which petitioner appeals is the order entered July 2, 2014.
2
[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 therein, that a substantial change has occurred in the circumstances of
the child or of one or both parents and a modification is necessary to preserve the
best interests of the child.
Petitioner contends that her and Mr. S.’s completion of the court-ordered program of treatment
was a substantial change in circumstances that would permit the family court to modify the
parenting plan pursuant to Skidmore v. Rogers, 229 W.Va. 13, 725 S.E.2d 182 (2011).3
Petitioner argues further that completion of the court-ordered program of treatment by her new
husband was not anticipated, and that modification is in the best interest of her children.
In affirming the order of the family court, the circuit court relied on the February 21,
2013, testimony of Dr. Bobby Miller, who found Mr. S. to be at moderate risk to re-offend and
that “Mr. S.’[s] sexual proclivities and risks have not changed since he was assessed by Ralph
Smith, a psychiatrist in Charleston, West Virginia on April 22, 1999.” Dr. Miller also testified
that in 1999, Dr. Smith recommended that Mr. S. receive sexual offender treatment, and that Mr.
S. had failed to receive any such treatment as of the February 21, 2013 hearing. The circuit court
then held that the family court’s conclusions of law were neither arbitrary, capricious nor an
abuse of judicial discretion, and denied petitioner’s petition for modification, and the motion for
Mr. S. to be present while petitioner exercised her parenting time with the children.
We agree with the circuit court and find that petitioner failed to demonstrate to the family
court that an unanticipated change in circumstances occurred that would necessitate
modification. The record reflects that, prior to the family court’s order to complete sex offender
treatment, Mr. S. had not received any course of treatment, and that Dr. Miller found Mr. S.’ risk
to re-offend to be in the moderate risk range. Both experts in this matter, Dr. Miller and Dr. Saar,
opined that Mr. S. would be a low risk to re-offend if he were to complete sex offender
treatment; accordingly, the circuit court required that Mr. S.’s complete at least two or three
sessions of the treatment program prior to the resumption of visitation between Mr. S. and the
minor children. Mr. S.’s completion of treatment was not only anticipated by the family court
and the parties, but ordered by the family court, and resulted in Mr. S.’s re-classification from
moderate risk to re-offend to low risk, as the experts suggested would happen with treatment.
Accordingly, we find this assignment of error to be without merit.
Petitioner next argues that the circuit court erred in not hearing evidence that petitioner
3
Syllabus Point 3 of Skidmore states that,
West Virginia Code § 48–9–401(a) (2009) permits a court to modify a
parenting plan order on the basis of a substantial change in circumstance that
arises after the parenting plan order is entered if such change was not provided for
in the parenting plan and modification is necessary to serve the best interests of
the child.
3
had completed her court-required training. We review rulings on the admission of evidence
under an abuse of discretion standard.
The West Virginia Rules of Evidence and the West Virginia Rules of Civil
Procedure allocate significant discretion to the trial court in making evidentiary
and procedural rulings. Thus, rulings on the admissibility of evidence . . . are
committed to the discretion of the trial court. Absent a few exceptions, this Court
will review evidentiary . . . rulings of the circuit court under an abuse of discretion
standard.
Reynolds v. City Hosp., Inc., 207 W.Va. 101, 108–9, 529 S.E.2d 341, 348–9 (2000); See also
Jenkins v. CSX Transp., Inc., 220 W.Va. 721, 649 S.E.2d 294 (2007). This Court has also noted
that,
“[o]nly where we are left with a firm conviction that an error has been committed
may we legitimately overturn a lower court’s discretionary ruling. ‘Where the law
commits a determination to a trial judge and his discretion is exercised with
judicial balance, the decision should not be overruled unless the reviewing court
is actuated, not by a desire to reach a different result, but by a firm conviction that
an abuse of discretion has been committed.’” Covington v. Smith, 213 W.Va. 309,
322–23, 582 S.E.2d 756, 769–70 (2003) (internal citations omitted).
Wells v. Key Commc’ns, L.L.C., 226 W.Va. 547, 551, 703 S.E.2d 518, 522 (2010).
Petitioner argues that the decision of the family court was clearly erroneous because the
family court did not hear any evidence pertaining to her court required training; therefore,
petitioner argues the family court had no evidence to rely on in making its ruling. We disagree
and find that the circuit court’s decision not to admit testimony regarding petitioner’s court-
ordered training was not an abuse of discretion. As previously noted, the family court ordered
petitioner to complete a sex offender treatment program, “so that she is informed and can
properly assess any future risk to her children.” Consequently, petitioner’s completion of the
court-ordered sex offender treatment program was not an unanticipated change of circumstances,
and the family court’s refusal to hear that evidence was not an abuse in discretion. Accordingly,
we find that the family court did not err by declining to hear this evidence.
In her final assignment of error petitioner argues that the circuit court arbitrarily and
capriciously substituted its judgment for that of the family court when it reversed the April 22,
2013, order, refused to modify the parenting plan, and upheld the family court’s order from the
modification hearing. In its April 22, 2013, order, the family court ordered that the children
could begin visitation with Mr. S. on or before May 10, 2013, which would allow ample time for
the parties’ female child to attend two or three counseling sessions. The family court determined
if “Nancy S. and Jason S. complete sex offender treatment and if [the parties’ minor child]
completes a couple or three professional counseling sessions, the Court finds that there is really
no risk for her.” In an order entered August 2, 2013, the circuit court reversed that decision, and
ordered that Mr. S. was to have no contact with the minor child, and upheld the modification of
the parties’ parenting plan.
4
Petitioner argues that in reversing the family court’s decision, the circuit court refused to
consider evidence of Mr. S.’s treatment.4 As the circuit court only cited the pre-modification
opinions of Dr. Bobby Miller, and did not address any of the evidence from treatment, petitioner
claims that the decision of the circuit court to reverse the family court and not allow any
visitation was clearly erroneous.
Having carefully reviewed the appendix record, we believe that petitioner
mischaracterizes the events and the evidence before both the family court and circuit court. In the
April 22, 2013, order the family court found Dr. Miller’s testimony to be more credible than that
of Dr. Saar.5 In its August 2, 2013, order, that reversed the decision of the family court to allow
visitation with petitioner’s husband, the circuit court was only privy to the original reports of Dr.
Miller and Dr. Saar. Relying upon the testimony of Dr. Miller the circuit court reversed the
decision of the family court and denied visitation. See W.Va. Code § 51-2A-14(a) (providing that
upon review of a family court order, the circuit court may affirm or reverse in part the decision
of the family court). Thereafter, petitioner filed a modification petition, which attached a
subsequent report of Dr. Saar.
The family court declined to hear testimony regarding Dr. Saar’s new opinion of Mr. S.;
however, the record reflects that Dr. Saar’s report was attached to petitioner’s petition for
modification. Consequently, this report is a part of the record in this matter, which both the
family court and circuit court reviewed prior to ruling. As noted earlier, we review application of
law to the facts by the family and circuit court under an abuse of discretion standard. Based upon
the testimony and findings contained in Dr. Miller’s report, there is no evidence that the circuit
court abused its discretion in relying upon that evidence, and, consequently, reversing the
decision of the family court, and denying Mr. S. visitation with the minor child. “‘[W]e will not
disturb a circuit court's decision unless the circuit court makes a clear error of judgment or
exceeds the bounds of permissible choices in the circumstances.’ Hensley v. West Virginia
DHHR, 203 W.Va. 456, 461, 508 S.E.2d 616, 621 (1998) (quoting Gribben v. Kirk, 195 W.Va.
488, 500, 466 S.E.2d 147, 159 (1995))” Graham v. Wallace, 214 W.Va. 178, 182, 588 S.E.2d
167, 171 (2003). Therefore, we find the circuit court did not err in reversing the decision of the
family court and denying visitation to petitioner’s husband with the minor child.
For the foregoing reasons, we affirm.
4
Petitioner asserts that she presented the report of Dr. Saar, who opined on March 29,
2014, that Mr. S. received treatment in the areas of (1) sexual assault cycles, (2) cognitive
restructuring approaches, (3) developing victim empathy and remorse, (4) arousal control, (5)
relapse prevention and intervention strategies, (6) interpersonal relationships, and (7) aftercare.
Dr. Saar opined that Mr. S. was “compliant and fully engaged with his treatment”, and “at this
time [Mr. S.] presents a low risk of danger to his stepdaughter or society as a whole. It should be
noted to the reader that risk potential is only documented as low, medium or high risk, there is no
‘no’ risk category.”
5
Dr. Miller found Mr. S. to be at a moderate risk to re-offend, and opined that “Mr. S.
continues to have a sexual interest in females age fourteen to seventeen years old.” Dr. Miller
also opined that Mr. S. did not have empathy for his victim, does not consider himself a sex
offender, and does not “believe what he did to be morally or socially wrong.”
5
Affirmed.
ISSUED: June 12, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTED IN BY:
Justice Robin Jean Davis
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