Jared M. v. Molly A. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jared M., FILED
Petitioner Below, Petitioner
December 7, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0764 (Monongalia County 19-C-30) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Molly A.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Jared M., by counsel Martin F. Mazezka, appeals the August 1, 2019, order of
the Circuit Court of Monongalia County that affirmed two orders from the Family Court of
Monongalia County. 1 The family court’s January 16, 2019, order denied petitioner-father’s motion
to modify his and Molly A.’s, respondent-mother’s, parenting plan. The family court’s February
8, 2019, order awarded respondent attorney’s fees. Respondent, by counsel Alyson A. Dotson and
Michelle L. Bechtel, filed a response in support of the circuit court’s order. Petitioner filed a reply.
This case satisfies the “limited circumstances” provision of Rule 21(d) of the Rules of
Appellate Procedure; thus, a memorandum decision is appropriate. As more fully explained below,
the Court is of the opinion that, in the order on appeal, the circuit court failed to set forth findings
of fact and conclusions of law sufficient to allow meaningful appellate review. We, therefore,
reverse the circuit court’s August 1, 2019, order and remand the case to the circuit court with
instructions to draft a new order setting forth findings of fact and conclusions of law sufficient for
meaningful appellate review.
The parties, who were never married, have one child together, a daughter, who was born
in February of 2012. In September of 2013, the child was diagnosed with craniopharyngioma, a
large benign tumor of the brain, and obstructive hydrocephalus. Thereafter, the tumor and the
child’s pituitary gland were removed. As a result, her growth, thyroid function, fluid retention,
adrenal response, and metabolism are compromised. The surgery also affected her hypothalamus;
therefore, she cannot regulate her temperature, and her thirst and hunger response may be affected.
She also has diabetes insipidus. Finally, she is unable to produce cortisol, which helps maintain
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1983); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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blood pressure. Due to these conditions, the child must take numerous medications throughout the
day to maintain her health.
In December of 2013, the parties separated. Thereafter, petitioner filed a petition in the
Family Court of Monongalia County to establish custody and a parenting plan.
In August of 2014, doctors determined that the child’s tumor had returned. Thereafter, the
child received treatment that eventually eradicated the tumor. Since that time, the tumor has not
recurred.
In September of 2014, the parties agreed to a parenting plan wherein respondent was
allocated approximately 70% (ten out of fourteen days) of the parenting time and petitioner was
allocated approximately 30% (four out of fourteen days) of parenting time. The child was then
two-and-a-half years old. The family court adopted the “Agreed Permanent Parenting Plan” by
order entered November 13, 2014. At the time, the parties lived in Morgantown, as they do to this
day. However, in 2014, petitioner was commuting three to four days a week to and from Bridgeport
(forty-five minutes each way), and he often worked more than forty hours per week. Respondent
stayed home and cared for the child full-time and took the child to her many doctor appointments.
Petitioner avers that he sacrificed parenting time with the child in 2014 so he could provide for her
financially and so she could have consistent, full-time care from respondent. Petitioner claims that
when the parties filed their parenting plan, they could not know how or if their daughter would
recover given the state of her health at the time.
More than three years later, on December 13, 2017, petitioner filed a motion to modify the
parties’ 2014 parenting plan to a 50/50 division of parenting time due to his claim of a substantial
change of circumstance, i.e., the significant improvement in the daughter’s health. In that motion,
petitioner claimed that the child (1) is now essentially normal due to her therapy and many
medications; (2) is in second grade, can communicate when she is feeling unwell, and is able to
regulate her health with adult supervision; and (3) participates in many activities including
attending sporting events, going to the beach, and playing at a trampoline park. Petitioner also
claims that respondent (1) has worked at least full-time since February of 2017: (2) has a forty-
five minute commute to and from work; (3) stopped working full-time for a period of time after
he filed his petition for modification of parenting time but has now returned to full-time
employment; (4) recently traveled out of the country for work; (5) often leaves the child in the care
of other adults, such as those at after-school care, whom he claims do not have the expertise to
deal with the child’s medical issues; and (6) leaves the child with her own mother during
respondent’s annual, week-long vacations outside the United States. Petitioner further claims he is
now an independent contractor, which gives him flexibility in his work schedule. Finally,
petitioner avers that he has a very warm relationship with the child, he is attentive to her needs,
and he always makes the child his first priority.
Respondent claims that petitioner, in his December 13, 2017, petition, sought not only to
increase his parenting time but to reduce his child support obligation, modify the medical decision-
making provision, and modify the “babysitter rule.” Respondent answered petitioner’s petition
claiming that petitioner would not be able to prove a substantial change of circumstances since the
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entry of the November 13, 2014, order affirming the parties’ parenting plan. Respondent also filed
a “Motion to Dismiss and for Attorney Fees.”
On October 26, 2018, the family court held a day-long hearing on the petitioner’s motion
to modify the parenting plan. Eleven witnesses were called, and thirty-two exhibits were entered
into evidence.
By order entered on January 16, 2019, the family court denied petitioner’s motion to
modify the parties’ “Agreed Permanent Parenting Plan.” The family court found that (1) the child’s
three-year age difference (from the 2014 order to petitioner’s filing in 2017) was not a significant
change in circumstance; (2) in 2014, it was anticipated that respondent would begin to work outside
the home so she could support herself and the child, as petitioner could not be expected to support
respondent indefinitely; (3) it was not a significant change of circumstance that respondent started
working full-time when the child started school; and (4) petitioner’s job change was not a
significant change of circumstance given that he had been a full-time employee since the case
began.
On February 8, 2019, the family court heard testimony on respondent’s motion regarding
child support and attorney’s fees. Prior to that hearing, respondent filed a “Renewed Motion for
Attorney’s Fees” in which she alleged that (1) she had spent more than $30,000 in attorney’s fees
for discovery and to prepare for the hearings on petitioner’s motion to modify the parenting plan;
(2) petitioner failed to meet his burden of proving a substantial change of circumstances; and (3)
petitioner had acted in bad faith, wantonly, and for oppressive purposes. Petitioner responded with
a motion to dismiss and a response to respondent’s renewed motion for attorney’s fees. Following
the second hearing, the family court entered its “Final Modification Order” on February 8, 2019,
which addressed medical insurance for the child, the division of payment for the child’s medical
expenses that are not covered by medical insurance, attorney’s fees, and child support. The family
court found that respondent had incurred $32,819 in attorney’s fees and costs and that petitioner
had incurred $32,822 in attorney’s fees and costs. The family court further found that petitioner
should have known there was no substantial change in circumstance to warrant a modification of
the parties’ parenting plan and awarded respondent $5,000 in attorney’s fees.
Petitioner separately appealed both the January 16, 2019, order and the February 8, 2019,
order to the circuit court, which consolidated the appeals and heard argument. Thereafter, the
circuit court, on August 1, 2019, issued a scant ten-paragraph order addressing both orders. In that
order, which is the order on appeal, the circuit court provided a very brief recitation of the “Facts
and Procedural History,” followed by some relevant law. The court’s findings and conclusions
regarding both family court orders, is five sentences long, and provides only the following:
[Petitioner] argues that four substantial changes of circumstances have
occurred since the November 2014 parenting plan was entered. These are (1) the
child’s improved medical condition[;] (2) [respondent] starting to work full-time in
February 2017; (3) [petitioner’s] changed employment in January 2017; and (4) the
child’s advancement in age and maturity. After listening to the testimony of eleven
(11) witnesses and reviewing 32 exhibits, the Family Court found that [petitioner]
failed to prove a substantial change in circumstances has occurred.
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The [c]ourt finds that the Family Court’s decision denying [petitioner’s]
request to modify the parenting plan is not clearly wrong. Additionally, this [c]ourt
cannot discern an abuse of discretion in the Family Court Judge’s ruling. Therefore,
this court is of the opinion that the Family Court’s Order[s] of January 16, 2019,
and February 8, 2019, should be AFFIRMED.
We have previously remanded such wholly insufficient orders to the circuit court 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 also Nestor 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).
Here, the circuit court clearly neglected to provide sufficient findings and conclusions in
support of its ultimate decision. Accordingly, the circuit court’s order is insufficient as a matter of
law and cannot be upheld. The appropriate remedy is to reverse and remand the case to the circuit
court for the entry of an order containing detailed findings of fact and conclusions of law to support
its ruling.
For the foregoing reasons, we reverse the order on appeal and remand this case to the circuit
court with instructions to enter a new order containing findings of fact and conclusions of law
sufficient to allow meaningful appellate review.
Reversed and remanded.
ISSUED: December 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
DISSENTING:
Justice Margaret L. Workman
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