Christopher P. v. Amanda C.

902 S.E.2d 185

CHRISTOPHER P., Petitioner,

v.AMANDA C., Respondent.

No. 22-918

Supreme Court of Appeals of West Virginia.

Submitted: April 30, 2024

Filed: June 12, 2024

Syllabus by the Court

1. "It is a settled principle of statutory construction that courts presume the Legislature drafts and passes statutes with full knowledge of existing law." Syllabus Point 1, David Duff, II v. Kanawha County Commission, — W. Va.—, — S.E.2d —, 2024 WL 1715130 (2024).

2. When a final order of a family court is appealed to the Intermediate Court of Ap- peals of West Virginia, the Intermediate Court of Appeals shall review the findings of fact made by the family court for dear error, and the family court’s application of law to the facts for an abuse of discretion. The Intermediate Court of Appeals shall review questions of law de novo.

3. On appeal of a final order of a family court from the Intermediate Court of Appeals of West Virginia, the Supreme Court of Appeals of West Virginia shall review the findings of fact made by the family court for dear error, and the family court’s application of law to the facts for an abuse of discretion. The Supreme Court of Appeals shall review questions of law de novo.

4. When a final order of a family court is appealed directly to the Supreme Court, of Appeals of West Virginia, the Supreme Court of Appeals shall review the findings of fact made by the family court for dear error, and the family court’s application of law to the facts for an abuse of discretion. The Supreme Court of Appeals shall review questions of law de novo.

5. "To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State ?. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

Appeal from the Intermediate Court of Appeals of West Virginia, No. 22-ICA-2

Shannon R. Thomas, Esq., Weston, West Virginia, Counsel for Petitioner

Steven B. Nanners, Esq., Nanners Law Office PLLC, Buckhannon, West Virginia, Counsel for Respondent

Allison Suzanne McClure, Esq., McClure Law, Clarksburg, West Virginia, Guardian ad Litem

WALKER, Justice:

In February 2021, Christopher P. (Father) petitioned the Family Court of Upshur County for custody of his two children with Amanda C. (Mother). For various reasons, the final hearing on the petition was continued until May 11, 2022. Days before the final hearing date, Mother’s counsel notified the parties, the family court, and the Circuit Court of Webster County that he was scheduled to appear before both those courts at conflicting times on May 11. The courts did not resolve the conflict, Mother’s counsel elected to appear in the circuit court, and the family court held the final hearing in this matter without Mother or her counsel.

On appeal to the Intermediate Court of Appeals (ICA), Mother argued that the family court had impermissibly failed to yield its hearing time to the circuit court. The ICA granted Mother a new custody hearing but based that decision on the conclusion that the family court had applied the wrong version of West Virginia Code § 48-9-206. Father now appeals that decision.

We reverse the ICA insofar as it concluded that the family court plainly erred when it failed to apply West Virginia Code § 48-9-206 (2022) to Father’s petition for custodial allocation but concur with the ICA that Mother is due a new hearing in family court. Mother is entitled to relief because the family court and circuit court did not comply with West Virginia Trial Court Rule 5.05 to resolve her counsel’s scheduling conflict. That failure mandates here that the family court conduct a new, final hearing on Father's petition for custodial allocation.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 2021, Father filed a Petition for Support and/or Allocation of Custodial Responsibility in the Family Court of Upshur County related to his two children with Mother, A.P. and B.P.¹ At an initial hearing on March 29, 2021, the family court set this matter for a status/final hearing on June 22, 2021 and appointed a guardian ad litem to represent the children. When the family court convened the parties on June 22, the guardian ad litem "requested additional time for investigation before reaching a final resolution" in this matter, and the family court rescheduled the final hearing for October 19, 2021. The family court again convened the parties on October 19, then scheduled another hearing for November 9, 2021, and the final hearing for January 12, 2022. Later, the November 9 hearing was continued, apparently because Father’s counsel had been exposed to COVID-19.

On December 28, 2021, Father moved to continue the January 12, 2022, hearing, as his counsel was scheduled to appear before this Court on that day.² On January 3, the family court entered an order granting Father’s counsel’s motion for a continuance, and again rescheduled the final hearing—this time for Wednesday, May 11, 2022.

On Monday, May 2, 2022, Mother’s counsel notified the family court, the Family Court of Webster County, and the Circuit Court of Webster County, of an imminent scheduling conflict.³ Mother’s counsel represented that on May 11, he was scheduled to appear for the final hearing in this matter at 9:00 a.m.; a hearing before the Webster County Family Court at 11:30 a.m.; and felony, sentencing hearings before the Circuit Court of Webster County at 10:40 a.m., 11:40 a.m., 1:45 p.m., 2:00 p.m., and 2:15 p.m., that had been set in early April. Mother’s counsel moved the family court, the Family Court of Webster County, and the Circuit Court of Webster County to "confer and advise which matter will necessitate the services of the undersigned on May 11, 2022." The family court and the Family Court of Webster County resolved the conflict in their schedules, with regard to Mother’s counsel.

On Friday, May 6, 2022, the family court entered an "Order Acknowledging Filing of Notice of Scheduling Conflict," in which it deemed Mother’s counsel’s notice of the scheduling conflicts "unreasonabl[y] tard[y]" and affirmed the May 11 trial date. The family court then stated that it "and its staff also had email correspondence with" the Circuit Court of Webster County, despite the tardy notice, but "no consensus could be reached." The family court concluded that, in view of the factors set forth in Trial Court Rules 5.02 and 5.03, the final hearing in this matter took precedence over the sentencing hearings scheduled in the circuit court.

The family court held the final hearing in this matter on May 11, 2022. Neither Mother nor her counsel attended. The family court attempted to contact Mother by telephone, but she could not be reached. It does not appear that the family court telephoned Mother’s counsel, as the family court "believe[ed] that [Mother’s] counsel chose to appear in the Circuit Court of Webster County rather than in the Family Court of Upshur County …. " The family court went on to take testimony and evidence.

The family court entered a post-hearing, temporary order on May 19, 2022, and then the final order was filed on ("Order Establishing Custodial Allocation and Child Support") on July 8, 2022. There, the family court reiterated its assessment of Mother’s counsel’s notice of imminent scheduling conflict as unreasonably tardy, analysis of the factors set forth in Trial Court Rules 5.02 and 5.03, and conclusion that this case took precedence over the sentencing hearings in circuit court. The family court then applied West Virginia Code § 48-9-206 (2020) to conclude that B. P. should reside primarily with Father, with Mother to have time with the child on alternating weekends and various holidays, subject to certain restrictions.

Mother appealed the July 8 order to the ICA. She assigned a single error to the proceedings in family court: that court’s refusal to cede the date of the final hearing in this matter—May 11, 2022—to the Circuit Court of Webster County based upon Trial Court Rule 5. Mother requested that the July 8 order of the family court be reversed, and the case remanded back to that court for a new evidentiary hearing. On November 18, 2022, the ICA issued its opinion remanding the case to the family court for a new evidentiary hearing, although not to correct the sole error assigned by Mother.⁴ Instead, the ICA noticed and acted to correct a legal error it deemed plain, that is, the family court’s use of § 48-9-206 (2020), rather than § 48-9-206 (eff. June 10, 2022).⁵ Father now appeals to this Court.

II. STANDARD OF REVIEW

This is the first opportunity for this Court to consider the standard of review for final orders from family court since the effective date of the West Virginia Appellate Reorganization Act of 2021. That legislation rerouted appeals from family court through the ICA,⁶ rather than the circuit courts, as was the case until June 30, 2022. Parties may yet appeal the final order to this Court following a decision by the ICA, so that two layers of appellate review remain.⁷

Previously, under West Virginia Code § 51-2A-14(c) (2005), "[t]he circuit court [was to] review the findings of fact made by the family court judge under the clearly erroneous standard and … review the application of law to the facts under an abuse of discretion standard." And under § 51-2A-15(a) and (b) (2001), this Court was to apply that same standard⁸ when an aggrieved party appealed from the circuit court, or when the aggrieved party appealed the family court’s order directly to this Court. To that end, we held in the syllabus of Carr v. Hancock⁹ that this Court reviews

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

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