Amie W. v. Scott T.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
AMIE W., FILED
Petitioner Below, Petitioner, November 6, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
vs) No. 13-0739 (Mineral County 10-D-132) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SCOTT T.,
Respondent Below, Respondent
MEMORANDUM DECISION
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
1
“We follow our past practice in juvenile and domestic relations cases which involve
sensitive facts and do not utilize the last names of the parties.” State ex rel. West Virginia Dep’t
of Human Servs.v.. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987)
(citations omitted).
2
The mother, a nurse, worked an extended weekend shift (commonly referred to as
Baylor shift) with most weekdays free. The father, a pharmacist, worked varying shifts,
including weekends.
1
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 litem
3
While the family court does not specifically make a finding about the distance between
the mother’s home in Maryland and the father’s home, the guardian ad litem testified that it
would take twenty-five minutes to get from one home to the other.
4
W. Va. Code § 48-9-403 states that “[t]he relocation of a parent constitutes a
substantial change in the circumstances under subsection 9-401(a) [ § 48-0-401] of the child only
when it significantly impairs either parent’s ability to exercise responsibilities that the parent has
been exercising.” W. Va. Code § 48-9-403(b) states that the relocation of a parent requires the
relocating parent to give at least sixty days’ advance notice to the other parent. Among other
things, this notice must include the relocation date, the address of the new residence, the specific
purpose of the proposed location and a proposal for how custodial responsibility will be
modified.
5
The Court notes that the filing of this petition for modification and contempt was based
upon the relocation of the children almost a year earlier. There was no explanation for the timing
of the petition.
6
The father made additional allegations regarding the mother’s boyfriend’s fitness as a
parent and the mother’s purported interference with the father’s custodial time, none of which
formed the basis of the family court’s findings or order.
2
stated that “[Amie W.] has placed herself and the children in a position where they are dependent
on [the mother’s boyfriend] for a place to live. This is a cause for concern as to the stability of
the situation.” 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.
7
While it is difficult to glean from the limited record on appeal, references were made at
oral argument about the dangerous nature of the mother’s neighborhood.
8
The petitioner assigned as error the fact that nowhere in the family court order is the
phrase “best interests of the children” mentioned. The judge specifically asked the guardian ad
litem whether her recommendations were in the best interests of the children. The guardian ad
litem responded affirmatively to this question.
9
The children appear to have done well in the Allegany County school system.
3
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’ rulings favored one religious practice over
another, in violation of the mother’s constitutional rights.
4
In her brief to this Court, the mother contends that the guardian ad litem did not properly
investigate this case. Specifically, the mother claims that the guardian ad litem did not explain
how she arrived at her recommendations to the court, did not address the objectives contained in
W. Va. Code § 48-9-102 (2001) and generally did not perform a sufficient investigation pursuant
to W. Va. Code § 48-9-301 (2001).
At the hearing on the father’s petition for modification of the parenting plan, the guardian
ad litem testified extensively regarding her investigation and recommendation. The hearing on
this matter was continued to allow the guardian ad litem to finish her task. The guardian ad litem
prepared a written recommendation to the family court detailing her investigation, her
recommendations, and her reasons for these recommendations prior to the hearing. The mother
and father were permitted to cross-examine the guardian ad litem.
While the mother complains before this Court of the inadequacies of the guardian ad
litem’s work, we observe that she did not voice these objections to the family court. Therefore,
we find that the mother failed to preserve her complaints about the adequacy of the guardian ad
litem’s report and investigation for this appeal. “This Court will not consider an error which is
not preserved in the record nor apparent on the face of the record.” Syl. pt. 6, State v. Byers, 159
W. Va. 596, 224 S.E.2d 726 (1976). In addition,
To preserve an issue for appellate review, a party must articulate it
with such sufficient distinctiveness to alert a circuit court to the
nature of the claimed defect. The rule in West Virginia is that
parties must speak clearly in the circuit court on pain that, if they
forget their lines, they will likely be bound forever to hold their
peace . . . it must be emphasized that the contours for appeal are
shaped at the circuit court level by setting forth with particularity
and at the appropriate time the legal ground upon which the parties
intend to rely.
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996).
The mother also argues that the family court abused its discretion by taking the
recommendations of the guardian ad litem without considering the best interests of the children.
It is axiomatic that decisions regarding a child’s custody should benefit the child. “In a contest
involving the custody of an infant the welfare of the child is the polar star by which the
discretion of the court will be guided.” Syl. pt. 1, State ex rel. Cash v. Lively, 155 W. Va. 801,
187 S.E.2d 601 (1972). We have further held that “[i]n 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). Likewise, in terms of modifying a parenting plan, we have
held
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 circumstances that arises after the parenting plan order is entered
5
if such change was not provided for in the parenting plan and
modification is necessary to serve the best interests of the child.
Syl. pt. 3, Skidmore v. Rogers, 229 W. Va. 13, 725 S.E.2d 182 (2011). As we noted in Tevya W.
v. Elizs Trad V., 227 W. Va. 618, 624, 712 S.E.2d 786, 792 (2011), the provisions of West
Virginia Code §§ 48-9-101 to -604 (2001) also enumerate guidelines for custody decisions, and
it is “the public policy of this State to assure that the best interest of children is the court’s
primary concern in allocating custodial and decision-making responsibilities between parents
who do not live together.” Id. at § 48-9-101(b). The statute provides that the best interests of the
child are to be served by facilitating the following: (1) stability of the child; (2) parental
planning and agreement about the child’s custodial arrangements and upbringing; (3) continuity
of existing parent-child attachments; (4) meaningful contact between a child and each parent; (5)
caretaking relationships by adults who love the child, know how to provide for the child’s needs,
and who place a high priority on doing so; (6) security from exposure to physical or emotional
harm; and (7) expeditious, predictable decision-making and avoidance of prolonged uncertainty
respecting arrangements for the child’s care and control. Id at § 48-9-102.
While the family court order does not specifically include the phrase “best interests of the
children,” the family court judge did specifically ask the guardian ad litem if her
recommendations were based upon the best interests of the children. The guardian ad litem
answered affirmatively. Therefore we find that the family court did consider the best interests of
the child, appropriately using those principles enumerated by statute and through our expansive
body of case law on the subject.
The mother also asserts that the lower courts infringed upon her religious freedom by
removing the children from her primary residence. This Court has previously addressed a
restraint on religious practices in a custody proceeding. In the case of Bond v. Bond, 144 W. Va.
478, 109 S.E.2d 16 (1959), the mother to whom custody was awarded began holding regular
meetings of fellow Jehovah’s Witnesses in the former marital home that was still jointly held by
the parties. The father sought to enjoin the mother from holding these meetings and requested
that the court restrict her usage of the former marital home for residential purposes only. The
issue of religious freedom was properly preserved, and there was testimony that the children,
who were compelled to participate in these meetings, were uncomfortable with the mother’s
religious practice. The court enjoined the mother from having meetings of the Jehovah’s
Witnesses in her home.
On appeal, this Court reversed the lower court’s order that enjoined the mother from
having church meetings in her home. This Court held:
Where, in a divorce suit, a decree grants a divorce to the
wife, who is a Jehovah’s Witness; awards to her the custody of
minor children born to the marriage union; gives to her the right to
occupy the dwelling owned jointly by the parties and to use the
contents thereof as a home for the divorced wife and minor
children; and requires the husband to pay stipulated monthly sums
for their support and maintenance; in a subsequent proceeding to
6
modify such divorce decree a decretal provision “that she [the
divorced wife] is hereby enjoined, restrained and prohibited from
holding, or permitting others to hold meetings of Jehovah’s
Witnesses in the home” is void and unenforceable because it places
an unconstitutional restraint upon the wife in the exercise of
religious freedom as guaranteed to her by Article III, Section 15 of
the Constitution of West Virginia.
Syl. pt. 2, id.
We find that the instant case is distinguishable from Bond. In Bond, the mother was
specifically enjoined from practicing her religion in the jointly-held former marital home by the
court. In the case sub judice, the lower courts were careful to place no restriction on the
mother’s religious practices. Here, there is no restriction whatsoever on the mother’s practice of
her religion. The mother remains free to practice her faith and to worship in any manner without
interference by the courts. The situation the lower courts were addressing was the direct effect
of the mother’s actions on her children. We find that this, among the other factors considered by
the lower courts, is a permissible factor to be considered and does not run afoul of the
admonitions and holdings in Bond. Thus, we conclude that the family court did not abuse its
discretion in the manner alleged by the mother. The mother’s personal exercise of her religion is
not limited or constrained by the family court ordering shared custodial responsibility and
decision-making. The circuit court did not err by upholding the family court’s order.
We likewise find that the family court and circuit court did not abuse their discretion in
modifying the primary residence of the children based upon the best interests of the children. The
factors set forth in the guardian ad litem’s report amply support the conclusion that the children’s
best interests are served by maintaining their schooling in Mineral County, West Virginia, and
having their primary residence with their father. As found by the guardian ad litem, family court
and circuit court, the many changes occasioned by the mother’s relocation to her boyfriend’s
residence in Maryland10 were destabilizing to them, were very confusing to the children and
caused them difficulty. The lower courts applied the statutory factors and case law regarding the
children’s best interests in finding that a modification of the children’s primary residence was
warranted. We see no abuse of the lower court’s discretion by using the imposition of their
mother’s change of religion upon the children as a consideration, among the many other factors,
considered for the change of primary residence for the children. We find that the best interests of
the children are served by this change. Finally, we agree that the award of holidays and the
children’s birthdays to the father, who routinely celebrates these holidays, is not an abuse of
discretion on the part of the family or circuit courts.
10
We observe the mother failed to provide the notice of relocation required by W. Va.
Code § 48-9-403 in taking the children to Maryland.
7
We find no error in the family court’s well-reasoned order and affirm the circuit court’s
order of June 24, 2013, that likewise found no error with that order.
Affirmed.
ISSUED: November 6, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Margaret L. Workman
Justice Allen H. Loughry II
8