Brooke B. v. Donald Ray C., II

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
_______________
FILED
No. 11-1085 January 24, 2013
_______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
BROOKE B., SUPREME COURT OF
APPEALS
Petitioner
v.
DONALD RAY C., II,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Paul Zakaib, Jr., Judge
Civil Action No. 11-MISC-136
REVERSED
____________________________________________________________
Submitted: January 16, 2013
Filed: January 24, 2013
Andrew S. Nason, Esq. Mark A. Swartz, Esq.
Pepper & Nason Allyson H. Griffith, Esq.
Charleston, West Virginia Swartz Law Offices
Noelle A. Starek, Esq. Saint Albans, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
Ariella G. Silberman, Esq.
Kay, Casto & Chaney, PLLC
Charleston, West Virginia
Guardian ad litem for A.C.
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE BENJAMIN, deeming himself disqualified, did not participate.
JUDGE J. D. BEANE, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “The standard of appellate review of a circuit court’s order granting
relief through the extraordinary writ of prohibition is de novo.” Syllabus Point 1, Martin
v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782(1997).
2. “Prohibition lies only to restrain inferior courts from proceeding in
causes over which they have no jurisdiction, or, in which, having jurisdiction, they are
exceeding their legitimate powers and may not be used as a substitute for writ of error,
appeal or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d
370 (1953).
3. “Cases involving children must be decided not just in the context of
competing sets of adults’ rights, but also with a regard for the rights of the child(ren).”
Syllabus Point 7, In re Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995).
4. “Pursuant to the plain language of W.Va. Code § 44–10–3(a) (2006)
(Supp.2007), the circuit court or family court of the county in which a minor resides may
appoint a suitable person to serve as the minor’s guardian. In appointing a guardian, the
court shall give priority to the minor’s mother or father. ‘However, in every case, the
competency and fitness of the proposed guardian and the welfare and best interests of the
minor shall be given precedence by the court when appointing the guardian.’ W.Va. Code
§ 44–10–3(a).” Syllabus Point 6, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300(2008).
i
5. “In exceptional cases and subject to the court’s discretion, a
psychological parent may intervene in a custody proceeding brought pursuant to W.Va.
Code § 48-9-103 (2001) (Repl.Vol. 2004) when such intervention is likely to serve the
best interests of the child(ren) whose custody is under adjudication.” Syllabus Point 4, In
re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).
6. W.Va. Code §§ 51-2A-2(a)(17) [2012] and 44-10-3(a) [2006] clearly
and unambiguously grant a family court the subject matter jurisdiction to hear questions
concerning guardianship of a child.
7. W.Va. Code §§ 51-2A-2(a)(6) [2012] and 48-9-103 [2001] clearly
and unambiguously grant a family court the subject matter jurisdiction to consider
establishing a parenting plan, or to otherwise allocate custodial responsibility or decision-
making responsibility, to someone who intervenes in an action alleging they are a
psychological parent.
8. Jurisdiction is a court’s inherent power to decide a case; venue,
however, designates the particular county in which a court having jurisdiction may
properly hear and determine the case.
9. “A man may live in several different places but he can have only one
domicile. Domicile is a place a person intends to retain as a permanent residence and go
back to ultimately after moving away.” Syllabus Point 2, Shaw v. Shaw, 155 W.Va. 712,
187 S.E.2d 124 (1972).
ii
10. “Because a determination of residency depends on the intent of the
parties, it is typically a question of fact[.]” Syllabus Point 5, in part, Farmers Mut. Ins.
Co. v. Tucker, 213 W.Va. 16, 576 S.E.2d 261 (2002).
11. It is not for this Court arbitrarily to read into a statute that which it
does not say. Just as courts are not to eliminate through judicial interpretation words that
were purposely included, we are obliged not to add to statutes something the Legislature
purposely omitted.
12. W.Va. Code § 44-10-3(a) [2006] places jurisdiction and venue of an
infant guardianship action in the West Virginia county in which a minor resides. It is the
minor’s residency alone that controls, and not the residency of any other person such as a
parent, guardian, or other person with custody or control of the minor. A determination
of the minor’s residency is typically a question of fact.
iii
Ketchum, Justice:
Since the founding of our State, this Court has abided by the principle that
issues of child custody are to revolve around the best interests of the child. This appeal
demonstrates what happens when sight is lost of that polar star principle.
The petitioner in this appeal contends that she is the psychological parent of
a child. The child’s biological mother has virtually no contact with the child. After the
child’s biological, custodial father (the respondent) pleaded guilty to several crimes and
anticipated being incarcerated, the petitioner filed a motion to intervene in an existing
family court action and sought either shared parenting with the father, or guardianship of
the child if the father was sentenced to prison.
Instead of responding to the petitioner’s factual contentions, the biological
father petitioned the circuit court for a writ of prohibition. The father’s current counsel
claimed that the family court lacked subject matter jurisdiction to consider a motion for
either shared parenting or guardianship. The circuit court granted the writ of prohibition
and halted the family court’s consideration of the petitioner’s motion.
We reverse the circuit court’s order granting the writ of prohibition, and
find that the family court plainly had subject matter jurisdiction to consider the
petitioner’s motion.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
On February 1, 2003, the child at the center of this case – who we refer to
as “A.C.” – was born. Her biological parents are Leslie F. and the respondent, Donald C.
In a paternity action filed in the Family Court of Cabell County in 2004, Donald was
adjudicated as the biological father, and was granted primary physical and legal custody
of A.C. Although Leslie was afforded visitation rights, she has had no meaningful
relationship with the child and rarely sees her. One party asserts the biological mother
last visited the child in 2007.1
Donald had discovered that he was A.C.’s father when she was 20 months
old. At the time, he was dating and living with the petitioner, Brooke B. Brooke asserts
that after Donald took custody of A.C., and with the assent and encouragement of
Donald, she began performing more than half of the parenting tasks for A.C. including
financially supporting, housing, feeding, clothing, bathing, dressing and teaching A.C.
For the next seven years, Brooke had a continuous and uninterrupted relationship with the
child. She took the child to school, to doctor’s appointments, to haircuts, and to school
and extracurricular activities. The child’s guardian ad litem states that A.C. “perceives
1
The Family Court of Cabell County’s paternity and custody order states, in part:
[T]he parties agreed to cooperate in facilitating the
Respondent [Leslie’s] parenting time with the minor child so
long as Respondent’s parenting time occurs at a safe venue. . .
.
[B]ased upon the parties[‘] agreement . . . Petitioner Donald .
. . shall pay unto the Respondent Leslie F[.] the sum of
$400.00 per month as child support until further Order of the
Court regardless of the current parenting arrangement.
2
Brooke . . . as her mother,” and a psychologist reported that Brooke “fulfills the accepted
description of a psychological parent.”2
In 2009, Donald and Brooke ended their relationship. Brooke moved out of
his house and into her own home in Kanawha County. However, through 2009 and 2010,
A.C. allegedly spent the majority of her time living in Brooke’s home, and Brooke
continued to perform those parenting duties she had been performing throughout A.C.’s
life. A.C. was enrolled in a private school in Kanawha County, had numerous friends in
Kanawha County, and participated in extracurricular activities like plays and Girl Scouts
in Kanawha County.
On January 6, 2011, Donald pleaded guilty to tax evasion and bank fraud in
the United States District Court for the Southern District of West Virginia. His
sentencing was scheduled for a later date, but he faced up to 35 years in prison. At
approximately the same time, Donald refused to let A.C. stay at Brooke’s house. Brooke
2
We adopted the following definition of a “psychological parent” in Syllabus
Point 3 of In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005):
A psychological parent is a person who, on a continuing day-
to-day basis, through interaction, companionship, interplay,
and mutuality, fulfills a child’s psychological and physical
needs for a parent and provides for the child’s emotional and
financial support. The psychological parent may be a
biological, adoptive, or foster parent, or any other person.
The resulting relationship between the psychological parent
and the child must be of substantial, not temporary, duration
and must have begun with the consent and encouragement of
the child’s legal parent or guardian. . . .
3
alleges that Donald acted “to establish himself as a single parent performing the majority
of parenting duties . . . to impress the federal court and decrease his sentencing.”
Less than two weeks later, on January 18, 2011, Brooke filed a motion to
intervene in Donald’s paternity case in the Family Court of Cabell County. Brooke’s
motion asserted that she has been A.C.’s psychological mother since the child was 20
months old, and that the child lived with her in Kanawha County. Brooke asked the
family court for a share of parenting duties, and for an order appointing Brooke as A.C.’s
legal guardian while Donald was incarcerated. Copies of the motion were served on
Donald and on the biological mother, Leslie F.
The Family Court of Cabell County, however, did not rule on Brooke’s
motion. Instead, the family court entered an order transferring the case to Kanawha
County “because the Petitioner [Brooke] resides in Kanawha County and the minor child
resided with the Petitioner in Kanawha County at the time of the filing of the petition.”3
Shortly thereafter, Donald’s attorney filed a motion to dismiss with the
Family Court of Kanawha County. The motion did not challenge venue in Kanawha
County. Donald’s motion only asserted, as a matter of fact, that Donald was the primary
caretaker of A.C. and that Brooke was not a psychological parent.
3
The Family Court of Cabell County appears to have transferred the case pursuant
to W.Va. Code § 48-24-101(a) [2002], which permits transfers of venue in paternity
actions to a county where a party resides “if judicial economy requires.”
4
At a hearing on February 11, 2011, the family court declined to grant
Donald’s motion to dismiss4 because resolution of the fact-based motion would require
the taking of evidence and testimony. A hearing to take testimony was scheduled for
March 17th. In the meantime, the family court, “based upon an agreement of the parties,”
ordered Brooke and Donald to divide their custodial time with the child equally. The
family court also ordered that A.C. not be removed from her private school in Kanawha
County.
Shortly thereafter, Donald hired a new lawyer. The new lawyer filed a
motion to continue the March 17th hearing, ostensibly because he would not have enough
time to gather evidence and prepare for the hearing. The family court had a
teleconference on the motion to continue on March 16th. Counsel for Brooke objected
because two physicians had cleared their schedules to appear at the hearing. As a
compromise, the family court ruled that the March 17th hearing would be continued
except for the taking of testimony from the two physicians.
It is at this point that counsel for Donald initiated a detour away from
consideration of the best interests of the child. On March 16, 2011, at 9:11 p.m., counsel
for Donald faxed a new 45-page motion to dismiss to the family court judge. Counsel’s
new motion asserted that Brooke had never filed or served any formal petition,
complaint, or summons on Donald, and therefore “[w]hatever fugitive papers have
collected to create this misbegotten process must be stricken from the docket as of no
4
An order memorializing the family court’s ruling was entered on March 8, 2011.
5
jurisdictional consequence.” Donald’s motion further asserted that he had “primary
physical and legal custody” of A.C., and that Donald and A.C. “reside in Putnam County,
West Virginia and have lived there for many years.” On these grounds, counsel for
Donald claimed that the Family Court of Kanawha County did not have subject matter
jurisdiction to hear Brooke’s case.
On the morning of March 17th, the family court convened the hearing to do
nothing more than take the testimony of the two physicians. A.C.’s biological mother,
Leslie, appeared at the hearing (but reiterated she was not asking for custody of A.C.). At
the outset, counsel for Donald orally asserted that the family court didn’t have subject
matter jurisdiction to do anything. Counsel for Brooke contended that Donald’s lawyer
was not truly making a jurisdiction argument but rather a venue argument. However,
Brooke’s counsel asserted that Donald’s prior lawyer had orally but explicitly chosen
Kanawha County as the better venue over Putnam County, and had waived any venue
objections. The family court declined to rule on Donald’s new motion to dismiss because
the court had not had time to review the motion, and allowed the lawyers to examine and
cross-examine the two physicians.
At the conclusion of the March 17th hearing, the family court set a hearing
for May 9th to consider Donald’s new motion to dismiss. Nonetheless, minutes after the
conclusion of the family court hearing, at 11:26 a.m., counsel for Donald filed a petition
seeking a writ of prohibition from the Circuit Court of Kanawha County. Donald’s
lawyer repeated his claims that the Family Court of Kanawha County lacked subject
matter jurisdiction because A.C. “lived” and “resided” with her father in Putnam County,
6
and that Brooke had never filed a formal petition or complaint in Kanawha County
sufficient to invoke the family court’s jurisdiction. Donald also argued that the family
court was not giving Donald’s counsel adequate time to prepare for hearings. Donald
therefore asked that the circuit court prohibit the family court from proceeding any
further on Brooke’s motion for relief.
In an order dated June 29, 2011, the circuit court granted Donald a writ of
prohibition. The circuit court prohibited the family court from taking any further action
on Brooke’s motion. The circuit court determined that, as a matter of law, A.C.’s
residence was identical to that of her father’s in Putnam County. As such, the circuit
court concluded that “the family and circuit courts of Putnam County have subject matter
jurisdiction to entertain a petition for appointment of a guardian . . ; the Kanawha County
Family Court does not.”
Shortly thereafter, Donald – who by now was a resident of Boone County –
appears to have filed a guardianship proceeding in the Family Court of Boone County. In
that proceeding, on July 18, 2011, Donald had his mother (that is, A.C.’s paternal
grandmother) appointed as guardian of the child.5 According to the parties, A.C. now
resides with her grandparents in Logan County.
5
Brooke asserts that Donald’s lawyer violated the Rules of Practice and
Procedure for Minor Guardianship Proceedings [2009] in the Boone County action by
omitting any mention of A.C.’s relationship with Brooke. Rule 3(a)(7) requires that a
petition for the appointment of a guardian for a minor must contain a list of the “places
where the minor has lived during the last five years . . . and present addresses of the
persons with whom the minor lived during that period[.]” Rule 3(a)(8) requires the
petitioner to describe “any past or current proceeding involving the minor’s custody[.]”
Continued . . .
7
On September 21, 2011, Donald was sentenced to 51 months in prison by
the federal district court.
Brooke now appeals the Circuit Court of Kanawha County’s June 29,
2011, order granting a writ of prohibition.
II.
STANDARD OF REVIEW
“The standard of appellate review of a circuit court’s order granting relief
through the extraordinary writ of prohibition is de novo.” Syllabus Point 1, Martin v.
West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782(1997). We therefore apply the same guidelines as the circuit court relied upon in
considering whether to the issue a writ of prohibition.
W.Va. Code § 53-1-1 [1923] provides as follows:
The writ of prohibition shall lie as a matter of right in
all cases of usurpation and abuse of power, when the inferior
court has not jurisdiction of the subject matter in controversy,
or, having such jurisdiction, exceeds its legitimate powers.
Brooke asserts that Donald’s lawyer failed to advise the family court of the Kanawha
County proceedings, or that A.C. lived in Brooke’s house in Kanawha County for the two
years preceding the Boone County action.
On February 14, 2012, the Family Court of Boone County granted Brooke’s
motion to intervene in the guardianship action. The family court ordered that Brooke be
permitted “visitation” with A.C., and during summer vacation 2012, ordered that Brooke
receive 50/50, week on/week off, shared parenting. The family court also ordered
alternating weekend shared parenting after A.C. returned to school in the fall of 2012.
On July 17, 2012, counsel for Donald filed a petition for a writ of prohibition with
the Circuit Court of Boone County in an attempt to halt or to circumvent the family
court’s orders. The circuit court has not yet ruled on the petition.
8
Similarly, we have oft stated that a writ of “[p]rohibition lies only to
restrain inferior courts from proceeding in causes over which they have no jurisdiction,
or, in which, having jurisdiction, they are exceeding their legitimate powers and may not
be used as a substitute for writ of error, appeal or certiorari.” Syllabus Point 1, Crawford
v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).
Utilizing those standards of review, we examine the circuit court’s order
determining that the Family Court of Kanawha County had no subject matter jurisdiction
to consider Brooke’s motion seeking guardianship or shared parenting of A.C.
III.
ANALYSIS
For a century-and-a-half, the courts of this State have been guided by the
fundamental rule that, when addressing custody issues involving children, the best
interests of the child trump all other considerations. It is the polar star that steers all
discretion.6 As we said in 1925, “we must not lose sight of the rule that obtains in most
6
See, e.g., Kessel v. Leavitt, 204 W.Va. 95, 174, 511 S.E.2d 720, 799 (1998)
(“Superior to any rights of parents to the custody of their own children, however, is the
overriding consideration of the child’s best interests. Thus, the natural right of parents to
the custody of their children is always tempered with the courts’ overriding concern for
the well-being of the children involved.”); Syllabus Point 7, In re Brian D., 194 W.Va.
623, 461 S.E.2d 129 (1995) (“Cases involving children must be decided not just in the
context of competing sets of adults’ rights, but also with a regard for the rights of the
child(ren).”); Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989)
(“[T]he best interests of the child is the polar star by which decisions must be made
which affect children.”); Syllabus Point 2, State ex rel. Lipscomb v. Joplin, 131 W.Va.
302, 47 S.E.2d 221 (1948) (“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.”); Syllabus,
Continued . . .
9
jurisdictions at the present day, that the welfare of the child is to be regarded more than
the technical legal rights of the parent.” Connor v. Harris, 100 W.Va. 313, 317, 130 S.E.
281, 283 (1925).
In the instant case, the best interests of the child appear to have been wholly
disregarded. Brooke’s initial motion (for guardianship or an allocation of custodial
responsibility) facially sought what was best for A.C., and raised questions of fact that
necessitated the taking of evidence. However, Donald’s petition for a writ of prohibition
sought to circumvent those questions of fact, and – as the family court noted – “seems to .
. . throw everything against the wall and pray that something sticks.” Nowhere in
Donald’s filings do we perceive any consideration of what is best for A.C.
The circuit court – at the urging of Donald’s counsel – granted a writ of
prohibition after concluding that the family court had no subject matter jurisdiction. On
appeal, Brooke asserts that the circuit court’s decision was wrong. After consideration of
the statutes creating the family court’s authority, we agree with Brooke that it is clear that
State ex rel. Palmer v. Postlethwaite, 106 W.Va. 383, 145 S.E. 738 (1928) (“In [a]
contest over the custody of an infant, the welfare of the child is the polar star by which
the discretion of the court is to be guided.”); Green v. Campbell, 35 W.Va. 698, 702, 14
S.E. 212, 214 (1891) (“[T]he welfare of the infant is the polar star by which the court is
to be guided in the exercise of its discretion; and the court . . . is not bound by any mere
legal right of parent or guardian, but is to give it due weight as a claim founded on human
nature, and generally equitable and just.”); Rust v. Vanvacter, 9 W.Va. 600, 612-13
(1866) (“the court will exercise its discretion according to the facts, consulting the wishes
of the minor, if of years of discretion; if not, exercising its own judgment as to what will
be best calculated to promote the interests of the child.”), citing Armstrong v. Stone, 9
Gratt 102, 107 (Va. 1852) (“the court will exercise its discretion according to the facts,
consulting the wishes of the minor, if of years of discretion; if not, exercising its own
judgment as to what will be best calculated to promote the interests of the child.”).
10
the circuit court erred. Unquestionably, the Family Court of Kanawha County had
jurisdiction to hear Brooke’s motion for guardianship or shared parenting responsibility.
The subject matter jurisdiction of the family courts over guardianship
proceedings and proceedings allocating custodial responsibility derives from various
statutes.
As to guardianship proceedings, W.Va. Code § 51-2A-2(a)(17) [2012] gives
a family court “jurisdiction over the following matters: . . . All proceedings relating to the
appointment of guardians or curators of minor children[.]” Similarly, W.Va. Code § 44­
10-3(a) [2006] states that a “family court of the county in which the minor resides . . .
may appoint as the minor’s guardian a suitable person.”7 See also, Syllabus Point 6, in
part, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008) (“Pursuant to the
plain language of W.Va. Code § 44–10–3(a) (2006) (Supp.2007), the circuit court or
family court of the county in which a minor resides may appoint a suitable person to
serve as the minor’s guardian.”).
As to shared parenting and “custody,” W.Va. Code § 51-2A-2(a)(6) [2012]
gives a family court “jurisdiction over the following matters: . . . All actions for the
establishment of a parenting plan or other allocation of custodial responsibility or
7
The statute also confers concurrent jurisdiction over infant guardianship
proceedings to circuit courts. Rule 2(a) of the Rules of Practice and Procedure for Minor
Guardianship Proceedings [2009] clarifies the statute and states, in part:
(a) Jurisdiction. 1) Circuit courts and family courts
have concurrent subject matter jurisdiction over minor
guardianship proceedings, whether involving guardianship of
the person or estate of a minor, or both[.]
11
decision-making responsibility for a child[.]” Non-parents, such as petitioner Brooke, are
specifically allowed to seek an allocation of custodial responsibility under W.Va. Code §
48-9-103(b) [2001], which provides in part that:
In exceptional cases the court may, in its discretion,
grant permission to intervene to other persons . . . whose
participation in the proceedings under this article it
determines is likely to serve the child’s best interests. The
court may place limitations on participation by the
intervening party as the court determines to be appropriate.
We specifically found, in Syllabus Point 4 of In re Clifford K., 217 W.Va. 625, 619
S.E.2d 138 (2005), that the statute authorizes a psychological parent to intervene in a
custody proceeding:
In exceptional cases and subject to the court’s
discretion, a psychological parent may intervene in a custody
proceeding brought pursuant to W.Va. Code § 48-9-103
(2001) (Repl.Vol.2004) when such intervention is likely to
serve the best interests of the child(ren) whose custody is
under adjudication.
“Where the language of a statute is free from ambiguity, its plain meaning
is to be accepted and applied without resort to interpretation.” Syllabus Point 2, Crockett
v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). “A statutory provision which is
clear and unambiguous and plainly expresses the legislative intent will not be interpreted
by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly,
135 W.Va. 877, 65 S.E.2d 488 (1951).
These statutes plainly express a legislative intent to vest subject matter
jurisdiction in the family courts to consider any action that concerns the custody and
guardianship of a child. W.Va. Code §§ 51-2A-2(a)(17) and 44-10-3(a) clearly and
12
unambiguously grant a family court the subject matter jurisdiction to hear questions
concerning guardianship of a child. W.Va. Code §§ 51-2A-2(a)(6) and 48-9-103 clearly
and unambiguously grant a family court the subject matter jurisdiction to consider
establishing a parenting plan, or to otherwise allocate custodial responsibility or decision-
making responsibility, to someone who intervenes in an action alleging they are a
psychological parent. The circuit court’s order finding the family court was without
subject matter jurisdiction was, therefore, plainly in error.
The arguments by Donald’s counsel confuse jurisdiction with venue.
Jurisdiction is a court’s inherent power to decide a case; venue, however, designates the
particular county in which a court having jurisdiction may properly hear and determine
the case. Syllabus Point 9, Hinerman v. Daily Gazette Co., Inc., 188 W.Va. 157, 423
S.E.2d 560 (1992) (“Jurisdiction implies or imports the power of the Court, venue the
place of the action.”); Sidney C. Smith Corp. v. Dailey, 136 W.Va. 380, 388, 67 S.E.2d
523, 527 (1951). Donald essentially argues that venue did not lie in Kanawha County,
but rather was vested in Putnam County where he then resided.
Donald’s venue argument ignores Brooke’s request for a parenting plan and
a share of custodial and decision-making responsibility. Instead, it focuses solely on her
request for guardianship. Donald’s argument starts with a novel interpretation of the
guardianship statute, W.Va. Code § 44-10-3(a), which creates jurisdiction in the “family
court of the county in which the minor resides[.]” Donald argues that, as a matter of law,
“the county in which the minor resides” is identical to that of a custodial parent. The
basis for his position is W.Va. Code § 48-9-602 [2001], which states, in part:
13
Solely for the purposes of all other state and federal
statutes which require a designation or determination of
custody, a parenting plan shall designate the parent with
whom the child is scheduled to reside the majority of the time
as the custodian of the child. However, this designation shall
not affect either parent’s rights and responsibilities under a
parenting plan.
In 2006, the Family Court of Cabell County designated Donald as the custodian of A.C.
He argues, therefore, that the child, as a matter of law, resided with him wherever he
might live.
We reject Donald’s suggested interpretation of our laws.
First, W.Va. Code § 48-9-602 applies only to “statutes which require a
designation or determination of custody[.]” There is nothing in the guardianship statute
that requires a court to first designate or determine the custody of a child before then
determining who may be guardian of the child.8 Accordingly, W.Va. Code § 44-10-3(a)
is not one of the statutes envisaged by the Legislature when it crafted W.Va. Code § 48-9­
602.
Second, the Legislature’s choice of words in W.Va. Code § 44-10-3(a) and
W.Va. Code § 48-9-602 indicates that the Legislature was aware circumstances could
8
The “state and federal statutes” likely referred to in W.Va. Code § 48-9-602
include the Internal Revenue Code, 26 U.S.C. § 152 [2008] (which allows a custodial
parent to claim a dependent deduction); the Food Stamp Program, 7 U.S.C. § 2015 [2008]
(which requires a custodial parent to cooperate with state child support agencies); federal
criminal statutes relating to parental kidnapping, 18 U.S.C. § 1204 [2003]; federal
regulations issued on Veterans’ Benefits, 38 CFR 3.24, 3.57, and 3.850, and Social
Security, 42 U.S.C. § 1396r-1a [2000]; and statutes regarding finding a missing child and
reuniting the child with their legal custodian, 42 USC § 5773 [2008] and § 5775 [1999].
See Kimpel v. Kimpel, 122 Wash.App. 729, 734 n.1, 94 P.3d 1022, 1024 n.1 (2004).
14
arise where a minor had more than one residence. In W.Va. Code § 44-10-3(a), the
Legislature based a court’s jurisdiction and venue in any county in which a minor has a
residence, or “resides.” The verb “‘[t]o reside’ and its corresponding noun residence are
chameleon-like expressions, which take their color of meaning from the context in which
they are found. The word ‘residence’ has been described as being ‘like a slippery eel,
and the definition which fits one situation will wriggle out of our hands when used in
another context or in a different sense.’” Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. 16,
21, 576 S.E.2d 261, 266 (2002) (citation omitted). And in W.Va. Code § 48-9-602, the
Legislature required any parenting plan to specify where “the child is scheduled to reside
the majority of the time;” the statute does not resolve whether the child resides in other
places, but rather implies that a child can reside in multiple places.9
9
In the context of insurance, there is a bounty of case law discussing the numerous
“residences” of a child of divorced or separated parents, or children who have
temporarily left their parents’ home to pursue an education, job, medical treatment, or the
armed forces:
Numerous other cases have found a child of divorced
or separated parents -- even though living primarily under the
roof of only one parent -- was a “resident” of both parents’
“households” for purposes of insurance coverage. Courts
note that children often leave belongings at both homes, have
a room or area of their “own” in each home, and until the
child expresses another intent, generally hold that the child is
a resident of both homes. . . .
Another common class of cases where courts usually
find coverage involves children who have temporarily left
their parents’ insured house to pursue an education, a job,
extensive medical treatment, or to join the armed forces.
These individuals often establish a residence a substantial
distance from the insured house, and maintain that residence
for an extended period. When the facts establish that the
Continued . . .
15
It is an axiom in the law that residence and domicile are not synonymous,
and that a person “may have several residences, but only one domicile.” Lotz v.
Atamaniuk, 172 W.Va. 116, 118, 304 S.E.2d 20, 23 (1983). This Court said in Syllabus
Point 2 of Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972) that a person “may live
in several different places but [she] can have only one domicile. Domicile is a place a
person intends to retain as a permanent residence and go back to ultimately after moving
away.” Black’s Law Dictionary says that residence must be distinguished from domicile:
As “domicile” and “residence” are usually in the same place,
they are frequently used as if they had the same meaning, but
they are not identical terms, for a person may have two places
of residence, as in the city and country, but only one
domicile. Residence means living in a particular locality, but
domicile means living in that locality with intent to make it a
fixed and permanent home.
Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. at 21, 576 S.E.2d at 266 (quoting Black’s
Law Dictionary 1309 (6th ed.1990))
We noted in Syllabus Point 5 of Farmers Mut. Ins. Co., supra, that
“[b]ecause a determination of residency depends on the intent of the parties, it is typically
a question of fact[.]” Accordingly, since W.Va. Code § 44-10-3(a) places jurisdiction and
venue of an infant guardianship action in any West Virginia county in which a minor
resides, where the minor resides is generally a question of fact.
child continues to call and treat their parents’ house as
“home,” leaving their belongings there and returning when
possible, courts usually find that the child is an insured
“resident” of their parents’ “household.” . . .
Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. at 22-23, 576 S.E.2d at 267-68 (citations and
footnotes omitted).
16
Third, W.Va. Code § 44-10-3(a) vests jurisdiction in the county “in which
the minor resides;” it does not mention anything about where the custodial parent of the
minor might reside. We reject the respondent’s invitation that we add jurisdictional
limitations to W.Va. Code § 44-10-3(a) that the Legislature intentionally omitted.
It is not for this Court arbitrarily to read into [a statute] that
which it does not say. Just as courts are not to eliminate
through judicial interpretation words that were purposely
included, we are obliged not to add to statutes something the
Legislature purposely omitted.
Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996). The
Legislature purposely created jurisdiction in courts where the minor resides. Our Rules of
Practice and Procedure for Minor Guardianship Proceedings similarly specify that
venue over a child’s guardianship proceeding is determined solely with reference to the
child and no one else. Rule 2(b) states:
(b) Venue. A petition for appointment of a minor
guardian shall be filed and heard in the county where the
minor resides; or if the minor is a nonresident of the state, a
county in which the minor has an estate. Any subsequent
proceedings shall be heard in the county in which the
guardian was appointed.
In summary, we believe that our infant guardianship statute is clear: W.Va.
Code § 44-10-3(a) places jurisdiction and venue of an infant guardianship action in the
West Virginia county in which a minor resides. It is the minor’s residency alone that
controls, and not the residency of any other person such as a parent, guardian, or other
person with custody or control of the minor. A determination of the minor’s residency is
typically a question of fact.
17
The record shows that Brooke alleged that the child, A.C., resided with her
at her home in Kanawha County. If this is true, then under W.Va. Code § 44-10-3(a)
venue lies with the Family Court of Kanawha County to ascertain whether Brooke is
competent and fit to be the minor’s guardian, and whether it is in the minor’s welfare and
best interests.
IV.
CONCLUSION
As set forth above, the Family Court of Kanawha County plainly had
subject matter jurisdiction to consider the petitioner’s arguments. The Circuit Court of
Kanawha County erred in issuing its June 29, 2011, order granting a writ of prohibition.
The order is therefore reversed.
With the dissolution of the circuit court’s prohibition order, the Family
Court of Kanawha County should expeditiously proceed to resolve the parties’ motions.
We understand from the parties that a competing action involving the custody, parenting
responsibilities, and/or guardianship of A.C. is pending in the Family Court of Boone
County. This competing action was filed after petitioner Brooke filed her motion to
intervene (requesting shared parenting or guardianship) that was transferred to the Family
Court of Kanawha County. Pursuant to Rule 19(f) of the Rules of Practice and
Procedure for Family Court [2007],10 the Family Court of Kanawha County should
10
Rule 19(f) of the Rules of Practice and Procedure for Family Court states:
Continued . . .
18
promptly order the Boone County action (and any other subsequently filed actions)
transferred to Kanawha County.
The family court should then quickly resolve the questions raised by the
parties’ motions, including determining A.C.’s residency at the time Brooke’s motion
was filed and thereby whether venue is proper in Kanawha County. If so, the family
court should then expeditiously resolve the shared parenting and guardianship issues
raised by Brooke’s motion.
Finally, the Clerk of the Court is directed to issue the mandate forthwith.
Reversed.
(f) Consolidation of simultaneous proceedings. When
two or more family court actions between the same two
parties are pending before different family court judges, the
court in which the first action was commenced shall order all
of the actions transferred to it or any other family court in
which such action is pending. The court to which the actions
are transferred may order a joint hearing or trial of any or all
of the matters in issue in any of the actions; it may order all of
the actions consolidated; and it may make such other orders
concerning proceedings as may tend to avoid unnecessary
costs or delay.
19