H.F. v. E.D. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
H.F.,
Respondent Below, Petitioner
vs.) No. 20-0938 (Fayette County 18-D-115)
E.D.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Mother H.F., by counsel Robert P. Dunlap, appeals the Circuit Court of Fayette
County’s October 26, 2020, order refusing an appeal from the family court. 1 Respondents E.D.
and C.D., paternal grandparents, by counsel Todd Kirby, filed a response in support of the circuit
court’s order. 2 On appeal, petitioner argues that the family court erred in awarding the respondents
party status in the proceedings below.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, 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.
In April of 2018, petitioner and her husband, the father of J.D., then two years old, filed
for divorce. No other children were born of their marriage. Due to concerns of drug abuse by the
parents, the Fayette County Family Court entered a temporary order on April 20, 2018, placing the
child in the care of the respondents, the paternal grandparents, and directed petitioner and the father
to submit to drug and alcohol screens biweekly.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
2
Although only petitioner grandfather E.D. is listed in the style of this case, grandmother
C.D. is also a petitioner on appeal.
1
In November of 2018, respondents filed a motion with the circuit court seeking
guardianship of the child. At a hearing on the motion held later that month, petitioner and the
respondents represented to the family court that they had reached an agreement as to custody and
parenting time of the child. The family court heard the terms of the agreement, found the same to
be reasonable, and entered an order accepting the agreement and setting forth the agreement’s
terms.
Several months later, in March of 2019, the family court held another hearing on the matter.
Petitioner and the respondents advised the family court that they “reached a full and complete
agreement” regarding custody and care of the child. The family court noted that petitioner was
allocated primary custodial and decision-making responsibilities for the child and that the
respondents would have “two (2) overnights per week for visitation” with the child. Additionally,
the father would have two hours of visitation per week with the child. The family court
memorialized these findings in an agreed final order entered on May 20, 2019.
In March of 2020, the family court held another hearing as a result of the parties’ agreed
desire to modify the prior agreed final order. Pursuant to the agreement, the father’s visitation time
was consolidated into a longer visit once per month and the respondents would have three
consecutive overnights with the child, with petitioner having custody of the child the remainder of
the time. The family court memorialized the agreement in a March 31, 2020, final order, and found
that the agreement was made knowingly, voluntarily, and free from duress.
The respondents filed a petition for contempt against petitioner in May of 2020, alleging
that she was refusing to allow visitation between the child and the respondents as set forth in the
final order. A hearing on the petition for contempt was held in September of 2020. The family
court found that petitioner’s actions were non-contemptuous given the circumstances created by
the COVID-19 pandemic and respondent C.D.’s active employment as a front-line health care
worker, but ordered that the lost time with the child be added to respondents’ next scheduled visits.
Relevant to this appeal, as part of the findings of fact, the family court noted that the respondents
“stepped into the shoes” of the father and had been granted party standing pursuant to West
Virginia Code § 48-9-103 and § 48-9-206.
In October of 2020, petitioner filed an appeal of the family court’s order in the Fayette
County Circuit Court, arguing that the family court erred in finding that the respondents had “party
status” in the matter. The circuit court denied petitioner relief, finding that the only issue before
the family court was the respondents’ petition for contempt. On that single issue, the circuit court
found that the family court did not err in finding that petitioner was not in contempt of the final
order. The circuit court found that, even if the respondents’ standing had been at issue before the
family court, the family court properly exercised its discretion in finding that the respondents have
a right to be notified and participate as a party in this action. The circuit court noted that West
Virginia Code § 48-9-103(a)(3) specifically provides that “persons who were parties to a prior
order establishing custody and visitation . . . have a right to be notified of and participate as a party
in an action filed by another.” The circuit court concluded, therefore, that the respondents “most
certainly have a right to participate in this action.” Lastly, the circuit court noted that the appeal of
the contempt order was not the proper avenue to contest any previously agreed upon custodial
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arrangement or visitation schedule and stated that if petitioner desired to seek a modification of
the custody arrangement set forth in the final order, the proper way to do so would be by filing a
petition for modification in the family court. Petitioner appeals the circuit court’s October 26,
2020, order affirming the family court’s order and denying petitioner relief.
Our standard of review of the circuit court’s order is well established:
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.
Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
On appeal, petitioner argues that the family court erred in allowing the respondents to “step
into the shoes” of the father and awarding them party status in the matter. According to petitioner,
the family court’s ruling is unfounded as there is no statutory provision that would allow the
respondents to reap the rewards of parental standing in the case, including the ability to seek
custody modification. Petitioner argues that awarding the respondents party status infringes upon
her right to raise and direct the upbringing of her child, and that she is the best caretaker for the
child and has not been proven unfit. Petitioner notes that, pursuant to West Virginia Code § 48-
10-401(b), “[a] grandparent moving for an order of visitation will not be afforded party status” and
cites to caselaw wherein this Court held that a family court erred in ordering grandparent visitation.
We find that petitioner is entitled to no relief.
As noted by the circuit court, the issue of the respondents’ status in these proceedings was
not at issue in the contempt hearing. Rather, the family court’s finding that the respondents were
previously awarded party status was simply a finding of fact regarding the procedural history of
the case. Nevertheless, the circuit court found that the family court did not err in awarding the
respondents party status, and we agree.
Pursuant to West Virginia Code § 48-9-103,
Persons who have a right to be notified of and participate as a party in an action
filed by another are:
....
(3) Persons who were parties to a prior order establishing custody and visitation, or
who, under a parenting plan, were allocated custodial responsibility or decision-
making responsibility.
Here, the record is clear that respondents were granted placement of the child in April of 2018,
due to the parents’ drug abuse. Over the course of the next two years, the family court entered
several orders wherein petitioner and the respondents agreed as to visitation and modifications
3
thereof between the child and the respondents. Indeed, the final order set forth that petitioner
agreed that the child would stay with the respondents every Thursday evening until Sunday.
Accordingly, it is clear that at the time of the contempt hearing, the respondents were persons who
were parties to prior orders establishing custody and visitation. As such, the family court did not
err in affording the respondents party status during the proceedings below. 3
To the extent petitioner cites to caselaw regarding grandparent visitation and takes issue
with the visitation granted to the respondents, we find no error. The record establishes that,
following the temporary order placing the child in the respondents’ care, every subsequent order
regarding custody of, parenting time with, and visitation with the child was an agreed order
between petitioner and the respondents. In short, petitioner knowingly, freely, and voluntarily
acquiesced to a visitation schedule between the respondents and the child in these custody
proceedings, and any alleged error in the family court’s acceptance of their agreement and granting
the respondents visitation is invited error. Syl. Pt. 2, Hopkins v. DC Chapman Ventures, Inc., 228
W. Va. 213, 719 S.E.2d 381 (2011) (“A litigant may not silently acquiesce to an alleged error, or
actively contribute to such error, and then raise that error as a reason for reversal on appeal.”). As
noted by the circuit court, if petitioner desires to modify the custody and visitation schedule set
forth in the final order, she needs to file a petition for modification in the circuit court.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 26, 2020, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
3
While the family court found that the respondents “stepped into the shoes” of the father,
the record reveals that the father is very much still involved in this matter. However, we find no
error in this verbiage under the limited circumstances of this case given the respondents’ clear right
to participate as a party in this action.
4