Jared M. v. Molly A.

FILED
April 26, 2022
released at 3:00 p.m.
No. 21-0253: Jared M. v. Molly A. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Hutchison, Chief Justice, dissenting:
Instead of affording deference to the family court’s findings of fact and
application of the law to the facts, the majority has re-weighed the evidence to find that
there was a substantial change in circumstances. This is contrary to our Court’s role on
appeal. Moreover, the majority is rendering its findings without the respondent even having
the opportunity to present all of her evidence, in clear violation of the respondent’s due
process right to be heard.
The blackletter law of our Court, cited in hundreds of opinions and
memorandum decisions, is that an appellate “court may not overturn a finding simply
because it would have decided the case differently[.]” Syl. Pt. 1, in part, In Re Tiffany Marie
S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Rather, the reviewing court “must affirm a
finding” if the lower court’s “account of the evidence is plausible in light of the record
viewed in its entirety.” Id. This principle is encompassed in our standard of review for
family law cases: “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.” Syl., in part, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803(2004). The family court judge was familiar with this child and parents, heard and observed
the witness testimony, considered the documentary evidence, and was in the best position
to serve as the factfinder and to weigh the evidence in this matter. There is nothing in the
family court’s ruling that is clearly erroneous or constitutes an abuse of discretion.
1
At the end of the petitioner’s case-in-chief, the family court provided a
lengthy explanation of why the petitioner had not met his burden of proving a substantial
change in circumstances warranting a modification of the parenting plan. 1 The judge spent
several minutes explaining her findings and addressing each of the issues that the petitioner
raised, 2 and these findings were later incorporated into a written order. The family court
decided that any changes were not significant enough to warrant modification of the
parenting plan.
The family court began by observing that the parenting plan had only been
in place for three years when the petitioner moved to modify it. The court found that the
three-year increase in E.M.’s age was not a substantial change. The child was still very
young, having just entered Kindergarten. The majority rejects this finding by boldly saying,
“we find that on these facts, and for this child, four years of time and childhood
development, combined with the improvement in her medical condition, represent[s]” a
substantial change. 3 Not only is the majority erroneously stepping into the role of
1
Necessary prerequisites for modification of a parenting plan pursuant to West
Virginia Code § 48-9-401(a) (2001) include that there must be a “substantial change . . . in
the circumstances of the child or of one or both parents and a modification is necessary to
serve the best interests of the child.”
2
Neither party had a transcript of the family court hearing prepared, but a video
recording of the lengthy hearing is included in the appendix record on appeal.
3
Jared M. v. Molly A., __ W. Va. __, __ S.E.2d __ (2022), slip op. at 12. The
majority’s statement about “four years” is a reference to the date of the evidentiary hearing,
instead of the date the petition for modification was filed.
2
factfinder, but the petitioner’s written petition for modification never claimed that the
child’s improved medical condition was grounds for modification. The petitioner also did
not present any medical evidence to support such an assertion. The child’s doctor was a
witness for the respondent, not for the petitioner, and the doctor testified about E.M.’s
ongoing “fragile” medical condition and the need for careful attention to her health and
medication dosing.
Next, the family court rejected the notion that either of the parents’ jobs
constituted an unanticipated event or a substantial change in circumstances. The court
noted that the respondent waited until E.M. started full-time Kindergarten before accepting
a job at a company owned by her father. The court found that when the current parenting
plan was entered, the parties had obviously anticipated that the respondent would become
employed at some point in time because of the need to support herself. The parties were
never married, thus the petitioner does not pay the respondent any spousal support, and the
respondent must have a source of income to support herself and provide for the child.
Although the petitioner argued that the respondent worked overtime to the detriment of the
child, the family court rejected this assertion by finding that the overtime was minimal and
might have been worked early in the morning (presumably when the child was already at
school). Moreover, the evidence showed that E.M. missed many days of Kindergarten
because of her medical condition, with the respondent providing and arranging for care on
those days just like she did when she was a stay-at-home parent before the child started
school. After considering the facts and argument presented by the petitioner, the family
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court determined that the respondent’s acceptance of employment when E.M. started
school did not constitute a substantial change in circumstances for this child. There is
simply no error or abuse of discretion in that determination.
As to the petitioner’s change in employment, the family court expressly
rejected the argument that he now has more flexibility and more time to spend with the
child. The family court pointed to evidence that the petitioner is still working full-time and
still spending time in the corporate office, just like he was doing when the current parenting
plan was adopted, and that he travels extensively for work. According to his tax returns,
the petitioner traveled 30,000 miles for work in 2016 and 2017. 4 As with the family court’s
other findings, there is no clear error or abuse of discretion.
“[I]n general, an abuse of discretion occurs when a material factor deserving
significant weight is ignored, when an improper factor is relied upon, or when all proper
4
Although not the focus of the majority’s opinion, the family court also soundly
rejected other issues raised by the petitioner. For example, the petitioner argued that the
respondent provided the school with information about the child without including him.
However, the family court noted that the petitioner could have taken responsibility for
educating school personnel about E.M.’s medical needs, but he did not. The petitioner also
claimed to not know about a medical malpractice lawsuit pursued on behalf of the child,
but he had co-signed the representation agreement to hire the lawyer. The family court
found that the petitioner’s decision to attend the child’s doctor’s appointments was not a
substantial change in circumstances, rather, he always had the right to attend appointments
per the parenting plan. The court dismissed other issues raised by the petitioner in a failed
effort to make the respondent out to be a bad mother, including a single mix-up in
communicating a change in medication dosage and that the child received a bad grade on
a butterfly picture assignment in Kindergarten.
4
and no improper factors are assessed but the circuit court makes a serious mistake in
weighing them.” Shafer v. Kings Tire Service, Inc., 215 W. Va. 169, 177, 597 S.E.2d 302,
310 (2004) (quoting Gentry v. Mangum, 195 W. Va. 512, 520 n. 6, 466 S.E.2d 171, 179 n.
6 (1995) (other citation omitted). The family court did not ignore any proper factor, did not
rely on any improper factor, and did not make a serious mistake in weighing the evidence.
Rather, the majority of this Court has re-weighed the evidence and substituted its own
judgment on the facts and the application of the law to the facts.
The majority’s error in this case is magnified by the fact that the respondent
was not given the opportunity to present all of her evidence at the family court’s evidentiary
hearing. At the conclusion of the petitioner’s case-in-chief, the family court determined
that the petitioner had not met his burden of proof and proceeded to rule. The respondent
had been permitted to present the testimony of one of her witnesses, the child’s doctor,
early due to the doctor’s scheduling conflict—but the respondent did not present the rest
of her case-in-chief. Despite the lack of evidence from the respondent, the majority has
definitively decided that there was a substantial change in circumstances. 5
5
The remand ordered by the majority is for the purpose of addressing the next step
in the statutory analysis, i.e., whether modification is necessary to serve the best interests
of the child. See Jared M., __ W. Va. at __, __ S.E.2d at __, slip op. at 15. It is not for
further consideration of the question of whether there was a substantial change in
circumstances. Id.5
The right to present evidence on one’s own behalf is guaranteed by the
Fourteenth Amendment to the United States Constitution and Article III, § 10 of the West
Virginia Constitution. “The due process of law guaranteed by the State and Federal
Constitutions, when applied to procedure in the courts of the land, requires both notice and
the right to be heard.” Syl. Pt. 2, Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937)
(emphasis added). See, e.g., State ex rel. Bd. of Educ. of Cty. of Putnam v. Beane, 224 W.
Va. 31, 35, 680 S.E.2d 46, 50 (2009) (“The most fundamental due process protections are
notice and an opportunity to be heard.”); Litten v. Peer, 156 W. Va. 791, 799, 197 S.E.2d
322, 328 (1973) (“It has always been the policy of this Court to protect each litigant’s day
in court.”). Accordingly, even if the majority is correct that a reversal and remand are
required in this case, then the case should be reversed and remanded on all issues, including
the question of whether there was a substantial change in circumstances.
For these reasons, I respectfully dissent.
6