                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                          FILED
C.L.,
                                                                     February 5, 2014
Respondent Below, Petitioner
                                                                       released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
vs.) No. 12-1508 (Hampshire County 11-D-152)                         SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA


S.L.,
Petitioner Below, Respondent

                               MEMORANDUM DECISION

               In this divorce action, petitioner, C.L.,1 by counsel Erika Klie Kolenich and
Joann Rumbach, appeals the November 15, 2012, order of the Circuit Court of Hampshire
County. In that order, the circuit court refused C.L.’s petition for appeal of a final order
entered by the Family Court of Hampshire County that had granted primary custodial
allocation of the couple’s four children to their father, S.L. C.L., the mother, asserts a variety
of grounds upon which she contends this ruling was in error. Conversely, respondent, S.L.,
by counsel Cathe L. Moreland, argues that the lower courts correctly granted to him primary
custodial allocation of the children.2

               Based on the parties’ briefs, the appendix record designated for our
consideration, and the pertinent authorities, we find no error in the circuit court’s denial of
C.L.’s appeal. Thus, as more fully explained below, we hereby affirm. Furthermore, we find
a memorandum decision is appropriate under Rule 21 of the West Virginia Rules of
Appellate Procedure insofar as the Court finds no new or significant questions of law and no
prejudicial error.

             The parties were married on November 6, 1998, in Upshur County, West
Virginia. They both concede that the marriage has been rocky and they have been violent



               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
               We also acknowledge the participation in this matter of the Guardian ad Litem
for the four minor children, Julie A. Frazer.
toward each other. The couple has four children.3 Initially, the couple resided in Upshur
County, West Virginia; they subsequently moved to Hampshire County, West Virginia.4
Throughout the marriage, C.L. did not work outside the home and S.L. was employed full-
time, working four long days per week. He typically did not work Friday through Sunday.

               In July 2011, S.L. filed a petition for divorce in the Family Court of Hampshire
County. The petition averred that on July 11, 2011, C.L. took the parties’ four minor
children and moved into her parents’ home in Upshur County without providing notice of this
move to S.L. The petition further alleged that C.L. refused to permit S.L. to have visitation
with the children. S.L. sought to have the children returned to Hampshire County and further
sought either custody and control of the children or, in the alternative, a joint parenting plan
with liberal allocation.

               C.L. filed an answer and counterclaim in which she contended that she gave
notice to S.L. prior to relocating to Upshur County. However, she admitted that she refused
to allow S.L. visitation with the children. In her counterclaim, she alleged that both she and
S.L. had been physically abusive to each other. C.L. asserted that she left the marital home
to protect the children. She further asserted that the parties’ families all live in Upshur
County and that S.L. is the only family member residing in Hampshire County. C.L. sought
primary custody and control of the children with only supervised visitation for S.L.

              By temporary order entered on August 12, 2011, the family court appointed a
Guardian ad Litem and ordered that the primary residence of the children would be with S.L.
in Hampshire County pending a report by the Guardian ad Litem and further order of the
family court. C.L. was granted custody of the children from 6:00 p.m. Sunday until 6:00 p.m.
Wednesday each week.

              Following an investigation, the Guardian ad Litem submitted her report to the
family court. The Guardian related that C.L. and S.L. both characterized their marriage as
rocky from the beginning and sometimes included violent altercations. Approximately four
years prior to the separation, S.L. and C.L. were both charged with domestic assault and
battery. They both pled the charges down to disorderly conduct. Both parents acknowledged
that the domestic violence occurred in the presence of the children, but neither parent claimed
the other was abusive to the children. They apparently had attempted counseling on several
occasions with no success.

              3
                  The children are now ages fifteen, thirteen, eleven, and nine.
              4
              It is not clear how long the family has resided in Hampshire County, but it is
undisputed that the children have lived their entire lives in Hampshire County.

                                                2

               With respect to the instant matter, the Guardian ad Litem reported that three
of the children expressed a preference to reside with their mother, while one child stated no
preference. All four children strongly desired to remain in Hampshire County to be closer
to their father, their schools, and their friends. The Guardian ad Litem then made the
following recommendation:

                      Based upon all of the information provided, it is clear due
              to [S.L.’s] work schedule, and by virtue of [C.L.] being a stay-
              at-home mom, that [C.L.] performed the majority of the
              caretaking functions for the four children, and therefore, primary
              residence of the children should be placed with [C.L.], if and
              only if [C.L.] remains in Hampshire County. Your Guardian ad
              litem also recommends that custody be split as close to 50/50, to
              the extent that it is possible due to [S.L.’s] work schedule.

Additionally, with regard to C.L.’s county of residence, the Guardian ad Litem explained that
“[a]t the onset of this case, [C.L.] had indicated that she desired to move to Upshur County
with the children, so that she would be close to her other family members. Since then, [C.L.]
has reconsidered, and now desires to remain in Hampshire County[.]”

              By temporary order entered September 8, 2011, the family court adopted the
recommendations of the Guardian ad Litem and ordered that the children shall reside in
Hampshire County and shall attend Hampshire County schools at this time. The family court
further ordered that “the Respondent [C.L.] will have temporary primary residency of the
minor children and that the parties shall share custodial allocation on a 50/50 basis so long
as each remains in Hampshire County, West Virginia.” Finally, the family court ordered S.L.
to “pay the mortgage and other expenses related to the marital home and the expenses of the
minor children.”5

              On January 19, 2012, the family court entered an order ruling that,



              5
               Thereafter, at a hearing on December 22, 2011, the Guardian ad Litem advised
the family court of an incident that had occurred a few days earlier while the children were
with S.L. The Guardian also observed a bruise on the oldest child’s arm that resulted from
this incident. Nevertheless, the Guardian has opined that this appeared to be an isolated
event that did not rise to the level of requiring a report be made pursuant to Rule 48 of the
Rules of Practice and Procedure for Family Court, and W. Va. Code § 49-6A-2 (2006) (Repl.
Vol. 2009).

                                              3

              barring some unforeseen circumstance[,] the court does not
              believe that it would be in the minor children’s best interest to
              relocate during the school year. However, at the end of the
              school year should the two older minor children desire to reside
              primarily with the Respondent [C.L.], based upon the
              recommendation of the Guardian Ad Litem the court may
              reconsider the issue of primary allocation at that time.

            Subsequently, on March 13, 2012, the family court entered a Final Order of
Divorce. On the issue of custody of the children, the court ruled:

              11.	   The parties shall have a shared parenting plan wherein
                     the primary residence of the minor children shall be
                     with [S.L.] regardless of the location of [C.L.]. The
                     parties shall share the significant life decisions and shall
                     comply with West Virginia Code §48-9-601 . . . .

              12.	   That [C.L.] shall have the right of custodial allocation
                     depending on her residence as follows:

                            Plan A: [C.L.] is currently residing in Upshur
                     County, West Virginia and remains such after June 1,
                     2012, she shall have custodial allocation every other
                     weekend from Friday at 6:00 p.m. until Sunday at 6:00
                     p.m. The parties will exchange the minor children at
                     Yocum’s Store, Seneca Rocks, West Virginia. The
                     summer school break shall be divided equally between
                     the parties.

                            Plan B: That on or before June 1, 2012 [C.L.]
                     establishes a permanent residence in Hampshire County,
                     West Virginia, she shall have custodial allocation ever
                     other week beginning Sundays at 6:00 p.m.

               C.L. filed a “Motion for Reconsideration of Judgement,” which the family
court denied based upon its finding that C.L. had failed to allege any mistake, inadvertence,
surprise, excusable neglect, unavoidable cause, or newly discovered evidence. The family
court commented that the allegations included in C.L.’s motion were based upon “the history
of the parties and were, or should have been, presented to the Guardian ad litem prior to the


                                              4

final hearing.” C.L. then filed a petition for appeal in the Circuit Court of Hampshire
County.6

              The Circuit Court of Hampshire County entered an order on August 2, 2012,
denying, in part, and remanding, in part, C.L.’s petition for appeal of the family court’s final
order. The circuit court concluded that the family court had abused its discretion in failing
to apply the principles of W. Va. Code § 48-9-403(d) (2001) (Repl. Vol. 2009) to C.L.’s
proposed relocation to Upshur County, as the family court should have done pursuant to
W. Va. Code § 48-9-206(a)(7) (2001) (Repl. Vol. 2009).7

              6
                C.L. also filed in the Family Court of Hampshire County a motion seeking to
find S.L. in contempt and a petition for modification of parental allocation and child support
claiming that she had relocated to Buckhannon, West Virginia, and had obtained stable
employment. These two motions remain pending in the family court.
              7
                  In this regard, the circuit court explained that

                      14.    [t]he Court concludes that the Family Court should
              have considered whether or not [C.L.] exercised a significant
              majority of custodial responsibility. If so, the Family Court
              should have next considered whether [C.L.] showed that the
              relocation is in good faith for a legitimate purpose and to a
              location that is reasonable in light of the purpose. A review of
              the file indicates that [C.L.] was a stay-at-home mother and
              [S.L] often worked long hours, which also required travel. The
              Guardian Ad Litem’s Report indicates that “[C.L.] performed
              the majority of the caretaking functions for the four children,
              and therefore, primary residence of the children should be
              placed with [C.L.], if and only if [C.L.] remains in Hampshire
              County.”

                     15.     Whether or not [C.L.’s] custodial responsibilities
              constituted a significant majority of 70% or more is a finding the
              Family Court should have made, and this Court declines to make
              such a finding. If the Family Court finds that [C.L.] exercised
              70% or more of custodial responsibility, then it must consider
              whether the relocation is in good faith for a legitimate purpose
              and reasonable in light of the purpose. [C.L.] stated at the
              February 7, 2012, hearing that her extended family resided in
                                                                                   (continued...)

                                                 5

7
 (...continued)

Upshur County and she was seeking employment there.

Relocating to be close to significant family or to pursue a

significant employment opportunity is, by statute, for a

legitimate purpose. W. Va. Code § 48-9-206(d)(1). Again, the

Court concludes that the Family Court should have made

findings with regard to this issue, if it found that [C.L.]

exercised 70% or more custodial responsibility.


         16.   If neither parent had been exercising a significant
majority of custodial responsibility, the Family Court is first
obligated to consider whether [C.L.’s] proposed relocation was
made in good faith, for a legitimate purpose, and to a location
that is reasonable in light of that purpose. However, even if the
Family Court finds that the relocation is in good faith, for a
legitimate purpose, and to a reasonable location, the Family
Court must then consider the best interests of the children. See
W. Va. Code § 48-9-403(d)(2). Also, if a parent does not
establish that the purpose is in good faith for a legitimate
purpose and reasonable in light of the purpose, the Family Court
must consider the best interests of the children. W. Va. Code
§ 48-9-403(d)(3). Here, if either of these two situations apply,
the Family Court has already found that remaining in Hampshire
County is in the children’s best interests. Therefore, if either of
these two situations apply to this case, this court concludes that
the Family Court does not need to modify its parenting plan.

       17.    In summary, to be clear, this Court is not
disagreeing with the Family Court’s findings that remaining in
Hampshire County is in the children’s best interests. Rather, the
Court finds that the Family Court abused its discretion in not
applying West Virginia Code 48-9-403(d) to the facts of this
case when it knew at the final hearing that [C.L.] was proposing
to relocate to Upshur County. See W. Va. Code § 48-9­
206(a)(7). The Court finds that the Family Court should
determine whether or not [C.L.] exercised a significant majority
of custodial responsibility. If [C.L.] did exercise a significant
                                                                      (continued...)

                                6

              Thereafter, on August 27, 2012, in response to the circuit court’s order, the
family court issued an addendum to its final order of divorce in which it stated that neither
party exercised a significant majority of custodial allocation; therefore, W. Va. Code § 48-9­
403(d)(1) did not apply. Accordingly, the family court ordered that “custodial and decision
making responsibility shall remain as previously established by the Court’s Order entered on
the 12th day of March, 2012.” C.L. filed a motion for reconsideration, which was denied.
She then petitioned the circuit court for appeal of the family court’s “Addendum to Final
Order of Divorce.” The circuit court refused the petition by order entered November 15,
2012, in which it commented that it “and the Family Court ha[d] already considered and
reconsidered, respectively, Respondent’s grounds for appeal.” It is from this order that C.L.
now appeals to this Court.

              To guide our review, this Court has held that

                     “[i]n 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).

Syl. pt. 1, Melinda H. v. William R., 230 W. Va. 731, 742 S.E.2d 419 (2013).

              C.L. contends that, as a stay-at-home mother, she provided a significant
majority of the custodial responsibility for the children during the marriage. She argues that
the family court erred in failing to grant primary custodial allocation to her pursuant to
W. Va. Code § 48-9-206 and W. Va. Code § 48-9-403(d). She argues that her relocation was


              7
               (...continued)
              majority of custodial responsibility, then the family court should
              conduct the analysis contained in West Virginia Code § 48-9­
              403(d)(1). On the other hand, if the family court finds that
              [C.L.] did not exercise a significant majority of custodial
              responsibility or, if she did, that she did not establish that the
              purpose for her relocation is in good faith for a legitimate
              purpose to a reasonable location, then this Court concludes that
              the Family Court has already conducted its “best interests of the
              children” analysis.

                                              7

in good faith, for a legitimate purpose, and to a reasonable location in light of the purpose.
She had no home in Hampshire County and was unable to find work there. In Upshur
County, she can be close to significant family and better able to pursue employment.

                In response, S.L. argues that C.L. failed to meet the requirements of W. Va.
Code § 48-9-403, particularly in light of the fact that she relocated with the children to
Upshur County without notifying him and without his knowledge. He asserts that C.L.’s
relocation was not in good faith or for a legitimate purpose, and that she refused to permit
contact between the children and their father; therefore, the family court properly applied the
best interest standard. Finally, S.L. submits that evidence was presented to show that C.L.’s
relationship with a married man, with whom she now resides, was the true reason for her
relocation.

                 The Guardian ad Litem states that she agrees with the family court’s conclusion
that it is in the best interest of the children for them to remain in Hampshire County.

               This case has been a very contentious one. The record shows that the parties
were argumentative and asserted numerous allegations against each other throughout the
proceedings below. The family court had the opportunity to observe the parties first hand
and to assess their credibility as to the matters raised. See, e.g., Haller v. Haller, 198 W. Va.
487, 496, 481 S.E.2d 793, 802 (1996) (“Like all triers of fact, the family law master had to
balance conflicting evidence and make his ruling based on a weighing of the evidence, which
necessarily involved credibility determinations.”); State v. Guthrie, 194 W. Va. 657, 669 n.9,
461 S.E.2d 163, 175 n.9 (1995) (“An appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”).

              While evidence was presented to indicate that C.L. exercised a majority of the
custodial responsibility for the children prior to the couple’s divorce, this fact alone is not
dispositive of the question of custodial allocation.8 Pursuant to W. Va. Code § 48-9­


              8
                In this regard, the family court specifically held that “neither party exercised
a significant majority of custodial allocation and, subsequent to separation, the parties were
apportioned an equal percentage of custodial responsibility . . . .” Because neither party
exercised a significant majority of custodial responsibility, the family court reallocated
“custodial responsibility based upon the best interests of the child[ren], taking into account
all relevant factors including the effect of the relocation on the child[ren]” in accordance with
W. Va. Code § 48-9-403(d)(2). The family court additionally reasoned

                                                                                  (continued...)

                                               8

206(a)(7), the family court was required “[t]o apply the principles set forth in [W. Va. Code
§ 48-9-403(d)]” due to C.L.’s “relocat[ion] or propos[al] to relocate at a distance that will
impair the ability of a parent to exercise the amount of custodial responsibility that would
otherwise be ordered under this section. . . .” Applying W. Va. Code § 48-9-403(d)
necessitated that the family court “modify the parenting plan in accordance with the
child[ren’s] best interests” and in accordance with certain principles set out therein. One of
those principles instructs that

                     [i]f a parent does not establish that the purpose for that
              parent’s relocation is in good faith for a legitimate purpose into


              8
               (...continued)
                      5.     [t]hat [C.L.] stated she desired relocation to be
              closer to her relatives; however, the parties and the children
              have lived in Hampshire County during the children’s lifetimes
              and there are significant ties in this area; that at the time of the
              final hearing [C.L.] had no employment prospects which would
              benefit her greater than those available in the local vicinity.

                     6.      That pursuant to the testimony of the guardian ad
              litem for the children, the children adamantly desired to remain
              in Hampshire County and primarily reside with [C.L.], although
              they preferred to stay in Hampshire County with [S.L.] in the
              event [C.L.] relocated; that the guardian ad litem’s
              recommendations reflected the children’s desires which she
              believed were also in their best interests based upon the
              circumstances of the parties.

                     7.      That the Court cannot find [C.L.’s] desire to
              relocate is for a legitimate purpose or outweighs the other
              factors in this case.

                     8.      That even if the Court was to find [C.L.] was
              relocating for a legitimate purpose, the Court has already found
              that the best interests of the children are met in remaining in
              Hampshire County with [S.L.], which decision the Circuit Court
              upheld in its denial of [C.L.’s] appeal.

These rulings were affirmed by the circuit court in the order herein appealed.

                                               9

              a location that is reasonable in light of the purpose, the court
              may modify the parenting plan in accordance with the child’s
              best interests and the effects of the relocation on the child. . . .

W. Va. Code § 48-9-403(d)(3). In applying this statute, the family court, having heard the
evidence and observing the parties’ demeanor, concluded that C.L.’s relocation was not for
a legitimate purpose or to a location that was reasonable in light of the purpose.
Additionally, the family court concluded that it was not in the children’s best interest to
relocate to Upshur County.

                      The exercise of discretion by a trial court in awarding
              custody of a minor child will not be disturbed on appeal unless
              that discretion has been abused; however, where the trial court’s
              ruling does not reflect a discretionary decision but is based upon
              an erroneous application of the law and is clearly wrong, the
              ruling will be reversed on appeal.

Syl. pt. 2, In re Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850 (2011) (quotations and
citations omitted). The family court did not erroneously apply the law. Applying the
deferential standard for our review of the factual findings of the family court, we similarly
find no error. Accordingly, we affirm the order of the Circuit Court of Hampshire County
that, in turn, affirmed the rulings of the family court.9

                                                                                     Affirmed.

ISSUED: February 5, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II



              9
               C.L. raises three additional errors that she concedes were not properly
preserved for review. She invites this Court to nevertheless address these asserted errors as
important to the public interest. We decline her invitation.

                                              10
