Heather M. v. Richard R.

242 W.Va. 464

836 S.E.2d 431

HEATHER M., Plaintiff Below, Petitioner

v.RICHARD R., Defendant Below, Respondent

No. 18-1077

Supreme Court of Appeals of West Virginia.

Submitted: November 6, 2019

Filed: November 20, 2019

Maureen Conley, Esq., Legal Aid of West Virginia, Charleston, West Virginia, Counsel for Petitioner Heather M.

Respondent Richard R., Pro se

WALKER, Chief Justice:

Heather M.¹ and Richard R. lived together with their two shared biological children, A.R. and E.R. Eventually, Heather accused Richard of verbally and physically abusing her and the children, the two separated, and she petitioned the Family Court of Kanawha County for allocation of custodial responsibility. During two different hearings, the family court refused Heather's efforts — first on a pro se basis and later by counsel — to present evidence of Richard's alleged abuse. The family court rejected Heather's request for Richard's custodial time to be supervised and also allocated the income tax exemptions for the dependent children solely to Richard, with the option for Heather to claim one exemption in future years if she first obtained employment. After the circuit court denied her appeal, Heather sought relief in this Court. Richard did not file a response.

Because we find that the family court abused its discretion by refusing to permit Heather to present evidence relating to alleged abuse by Richard, we reverse the family court's order and remand with instructions to hear such evidence and determine whether, under Rule 48 of the Rules of Practice and Procedure for Family Court, this case should be referred to circuit court for abuse and neglect proceedings. And, we reverse the family court's order regarding the income tax exemption and remand with instructions that the family court award the exemption for both children to Heather unless any of the exceptions in West Virginia Code § 48-13-801 are satisfied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Heather and Richard lived together with two shared biological children, A.R. and E.R., but were never married. In May 2018, before the parties ended their relationship, Heather petitioned the Family Court of Kanawha County for allocation of custody of the two children. In the proposed parenting plan, Heather sought to limit Richard's custodial time with the children, stating, "I do not want my girls to be left alone with Richard because he has been verbal [sic] and physically abusive. He has screamed and hit both girls. My oldest is scared of him and my youngest is sometimes." In this first petition, Heather failed to indicate whether she requested supervised visitation of Richard's time with the children.²

At the time Heather filed her petition for custody allocation, she and Richard still resided in the same home. By the time of the temporary custody hearing on June 25, 2018, Richard had been out of the home for three weeks. As the parties, who appeared pro se, explained during the hearing,³ Heather initially asked Richard to return to their joint home so that the two could attend therapy sessions because Richard has "a lot of anger issues" toward her and the children. Richard declined to do so, resulting in Heather's request for supervised visitation. Richard explained that he declined to return to their home because: (1) it was not financially feasible due to his long working hours, commuting time, household chores, and a pre-existing child support obligation;⁴ and (2) he and Heather were "at each other's throats" and that was unlikely to change in the foreseeable future.

During the hearing, the family court judge asked if Heather agreed that the two were "at each other's throats[.]" Heather explained that the two argued, but not in front of the children, except that A.R. would occasionally eavesdrop on the stairs while the parents argued. The family court judge responded, "[b]ut you've allowed it to happen. [...] Yeah. You've both done it together [...] but you want him punished for it." Heather attempted to explain that her concern was not about the arguments but about "the way he's treated my girls." The following exchange then occurred:

JUDGE: Okay. So, when did he supposedly – when did he start treating the girls bad?

HEATHER: I don't know. I don't know.

JUDGE: No, no – tell me.

HEATHER: It's been years.

JUDGE: Okay. You know what? Then you allowed it.

[...]

JUDGE: So, now you want me to punish him and not let him see his kids because you let it be like that for nine years and it sounds to me like you've caused a lot of the problems as well. So, if he was such a horrible person, maybe I should put them in State custody? Because if you've allowed it, if you've allowed such a horrible situation to exist for nine years, the State can take your children for that. So, if you've allowed it to exist and he's such a horrible person, and such a horrible dad, then you've let it exist for nine years. And you just told me you wanted him to come home.

The family court judge then stated that because Heather had invited Richard to return home, then "he's clearly not that ... bad of a guy. So, I'm not going to, I'm not going to grant him, I'm not going to grant him supervised time." The judge precluded any further testimony on the supervised visitation matter at the temporary hearing and the parties agreed that Richard would have visitation with the children every Saturday from 9:00 a.m. to 6:00 p.m. The family court judge then made the following statement:

I can make [the custody allocation] final today unless you all would like to come back and put on, you know, all of your evidence of why he shouldn't have any time, or whether you should have more time, or whatever.

Heather indicated that she wished to come back with a lawyer at the final hearing to further discuss the custodial allocation and the judge agreed.

Before the final hearing, Heather, now by counsel, filed an Amended Parenting Plan in which she stated, "[Richard] has been physically and mentally abusive to my girls and I [sic]."⁵ Also in the interim, Heather filed a motion to present testimony from the children's pediatrician and A.R.'s counselor at the final hearing.

At the final hearing on September 5, 2018, Heather was represented by counsel and Richard again appeared pro se. Early in the proceeding, Richard requested that the court move visitation from Saturdays to Sundays to accommodate his and the children's schedules. Heather did not object to this change, but her counsel reminded the court that it still needed to address the matter of supervised visitation. Counsel also noted that A.R. suffered from anxiety issues and that A.R.'s pediatrician had been subpoenaed to testify by phone.

Notably, before the court could address the supervised visitation issue, Richard interjected to remind the court that Heather had invited him to return to their joint home. Heather acknowledged that this was true and the following exchange occurred:

JUDGE: Okay, so you obviously don't think he's a danger to your kids.

HEATHER: That is not true.

JUDGE: Well, yes it is. If you asked him to come home–

HEATHER: May I explain?

JUDGE: No you cannot. Because if you asked him to come home and live in the home with you, then I don't think you think one little bit that he's a danger to your children.

HEATHER: I do.

JUDGE: No, you don't, or you wouldn't have asked him to come home.

Heather's counsel also attempted to address this issue, but the judge interrupted her, stating, "If she asked him to come home, she doesn't get to sit here and say how mean and abusive he is. Because if that's true, then you're not a very good mother for asking him to come home." Heather once again attempted to explain that she invited Richard home in an effort to supervise his behavior around the children, stating that she "was prepared to be miserable for the rest of [her] life [...] [a]s long as [she] knew where [her] kids were." The judge then foreclosed Heather from explaining any further and stated that she was not going to order supervised visitation. Heather's counsel reminded the court that photographs of alleged abuse had been submitted, but the judge interrupted, stating:

JUDGE: Well, [counsel], I took a whole bunch of testimony at the last hearing from both of them. I'm not re – I'm not going to rehash it. They both testified at the last hearing and she said he was abusive, he said they fought a lot, so, I mean, we were here for a while and I did take some testimony from them. [...]

The judge then admonished Heather, stating that if she was concerned about the children's well-being, they should be in counseling. Heather stated that A.R. had been in counseling for about a year and her counsel again noted that she had subpoenaed the counselor. The judge replied, "[o]kay, hang on a sec – so the child's had issues for an entire year, not just because [Richard's] been gone in this, and been getting parenting time on just weekends." Heather stated that A.R.'s anxiety-related symptoms had resurfaced once visitation started. Richard interjected that all of A.R.'s anxiety is "blamed on [him]" even though she also suffers from anxiety about other traumatic scenarios. The judge prevented any further testimony on this point, reiterating that "[t]he child already had anxiety issues. I'm not blaming that on [Richard]."

Heather's counsel then directed the court's attention to the allocation of the child tax credit exemption, noting that if Heather were to become employed, she should be awarded the credit. The judge foreclosed evidence on the tax matter and stated she would probably not allocate both tax credits to Heather "based on the fact of how much child support [Richard] is paying." The judge opined that if Heather were to obtain employment, she would allocate the credit for one child to each parent. Counsel reminded the court that, under West Virginia Code § 48-13-801, preference for allocation of the credit is given to the custodial parent. The judge responded, "I understand. And I have discretion to do...