The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
November 14, 2024
JACOB H.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-147 (Fam. Ct. of Cabell Cnty. Case No. FC-06-2023-D-538)
SIERA G.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Jacob H. (“Father”) appeals from the March 7, 2024, Final Order
Establishing Custodial Allocation from the Family Court of Cabell County. Respondent
Siera G. (“Mother”) filed a response, and Father filed a reply.1 The issues on appeal are
whether the family court erred when it found that the physical distance between the parties
made 50-50 custodial allocation during the school year impractical and whether it was error
to not grant Father additional time during the summer.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is no error in the family court’s decision, and no
substantial question of law. For these reasons, a memorandum decision affirming the
family court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.
The parties were never married but share one minor child born in 2017, who was
six years old at the time of the hearing. On November 21, 2023, Mother filed her Verified
Petition to Establish a Parenting Plan and Child Support which sought to have a parenting
plan established that granted her the majority of the parenting time, with Father receiving
parenting time on the weekends and after school on Tuesdays and Wednesdays. On January
5, 2024, Father filed his answer which sought a 50-50 custodial allocation.
A hearing was held by the family court on February 6, 2024. Father initially asked
for a 2-2-3 schedule during the school year, but the family court expressed concern that the
long distance from Father’s home to the child’s school would have a negative impact on
the child’s school performance and countered with an offer to give him most Thursday
nights and all long weekends during the school year. Father requested additional parenting
time during the summer to balance out the parenting time between the parties to achieve a
1
Petitioner is represented by Alan L. Pritt, Esq. Respondent is represented by Paula
L. Harbour, Esq.
1
50-50 custodial allocation, and the family court offered to split the parenting time during
school breaks and vacations. Father accepted this proposal. When later asked by the family
court if the Thursday overnight schedule was acceptable to him, Father replied that it was,
stating “yes, absolutely, that’s fine.” When the family court addressed the summer
schedule, it asked the parties whether they would be implementing a 2-2-3 schedule to
achieve 50-50 parenting time during the summer. Both parties responded in the affirmative,
with Father nodding his head and saying “yeah.” Regarding child support, when the family
court told Father that he would pay $619.04 per month, he indicated that the amount was
more than he expected based on his use of an online child support calculator and stated
“that’s a lot.” However, despite this apparent displeasure with the amount of child support,
Father never actually made an objection during the hearing.
On March 7, 2024, the family court entered its Final Order Establishing Custodial
Allocation. In that order, the family court noted that the child currently resided with Mother
and that Father lived approximately 40 minutes from the child’s school. The family court
concluded that pursuant to West Virginia Code §48-9-209(f)(5)(A) and (D) a 50-50
allocation was impractical due to the physical distance between the parties’ residences and
the likelihood to disrupt the education of the child.
The family court ordered that Father would have parenting time during the school
year every other weekend, Wednesday afternoon, from Thursday afternoon until Friday
morning, and all long weekends.2 During the summer, the parents would have 50-50
custody on a 2-2-3 schedule and each parent was to receive two non-consecutive weeks
with the child. The family court ordered that if the parties could not agree on major
holidays, then the family court’s holiday schedule would apply. It is from that order that
Father now appeals.
The standard of review applicable to this case is well-settled.
When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear 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.
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).
2
The family court ruled that Father would forgo his Thursday night parenting time
before long weekends, so that the child would not go five consecutive days without seeing
his mother.
2
On appeal, Father raises two assignments of error. First, Father argues that the
family court erred in finding that the distance from Father’s home to the child’s school
would make a 50-50 parenting schedule impractical. In support of this argument, Father
argues that he is ready and willing to transport the minor child to school and that longer
commutes to school are common in a rural state like West Virginia. Physical distance and
the interference of a child’s education are required considerations when deciding whether
the 50-50 presumption is rebutted. West Virginia Code § 48-9-209(f)(5)(A) and (D) states:
In determining whether the presumption for an equal (50-50) allocation of
physical custody has been rebutted, a court shall consider all relevant factors
including any of the following . . . [w]hether an equal (50-50) physical
allocation is . . . [i]mpractical because of the physical distance between the
parents’ residences [or] [w]ould disrupt the education of the child.
West Virginia Code § 48-9-209(f)(5)(A), (D).
The family court considered the child’s young age and the effect the long morning
commute would have on his ability to concentrate and learn during the school day, in light
of the language in West Virginia Code § 48-9-209(f)(5)(A) and (D). Specifically, the
family court noted:
The Court has concerns with the minor child’s younger age that a long
morning commute will affect his ability to concentrate and learn during the
school day. It is the Court’s contemplation, that Fridays are more laid-back
school academic days for the minor child. Therefore, a Thursday overnight
during the school year has been fashioned to give the [Father] additional
overnight time during the school year with the contemplation that the longer
commute will have less of an effect on the minor child’s attention/learning
on Fridays, thereby ensuring the child’s welfare.
Upon review, we cannot find that the family court erred in finding that a 40-minute
commute for a young child would disrupt the child’s education rendering an equal
allocation impractical, given the discretion afforded to a family law court and our
deferential standard of review.3 Though this Court may have decided the case differently,
we decline to substitute our judgment for that of the family court. See Amanda A. v. Kevin
T., 232 W. Va. 237, 245, 751 S.E.2d 757, 765 (2013) (“[A] family court's decision is
3
We agree with the family court’s observation made at the hearing that, as the child
gets older, the distance likely no longer would be a major issue. We encourage the family
court to consider the child’s advancing age to be a substantial change in circumstances in
light of the family court’s express consideration of the tender age of the child in
determining the impracticability of the drive.
3
entitled to significant deference. Absent an abuse of discretion, this Court must refrain from
substituting its judgment for that of the family court, even if this Court might have decided
a case differently.”). The family court maximized Father’s parenting time during the school
year as much as possible by ordering that holiday breaks be split between the parties and
all long weekends during the school year be given to Father. See W. Va. Code § 48-9-102a
(“If the presumption is rebutted, the court shall . . . construct a parenting time schedule
which maximizes the time each parent has with the child and is consistent with ensuring
the child’s welfare.”). Accordingly, the family court’s order finding the physical distance
between the parties during the school year to be a limiting factor is not an abuse of
discretion.
Second, Father alternatively contends that the family court erred in not granting
him additional parenting time during the summer to balance out the additional time Mother
receives during the school year. Father argues that because of this error, the family court
calculated his child support using the basic shared child support calculation. Again, we
defer to the family court’s findings.4 The family court considered the long weekends and
split holidays awarded to Father and concluded that it was in the best interests of the child
for the parties to have a 50-50 custodial allocation in the summer, to which Father agreed
at the hearing. Thus, we find no error in the family court’s order regarding the summer
schedule.
Accordingly, we affirm the family court’s March 7, 2024, order.
Affirmed.
ISSUED: November 14, 2024
CONCURRED IN BY:
Judge Charles O. Lorensen
Judge Daniel W. Greear
CONCURRING:
Chief Judge Thomas E. Scarr
4
With regards to child support, the family court specifically found that the
additional long weekends awarded to Father may warrant an extended shared parenting
child support calculation in the future, which would lower his obligation.
4
SCARR, Chief Judge, concurring:
Although I agree and concur with the ultimate decision of the majority and affirm
the family court’s ruling, I must do so for different reasons. Put simply, the majority
decision in this case is not consistent with the general judicial policy and practice of West
Virginia appellate courts to avoid deciding issues which need not be reached to adjudicate
the case. See State v. Conner, No. 21-0323, 2023 WL 3597530, at *3 (W. Va. May 23,
2023) (memorandum decision) (declining to reach the merits of petitioner’s arguments
when they waived their appeal by failing to object to the issues below); Scherich v.
Wheeling Creek Watershed Prot. & Flood Prevention Comm'n, No. 22-0309, 2023 WL
3193211, at *2 (W. Va. May 2, 2023) (memorandum decision) (declining to reach the
merits of the petitioner’s arguments when there was adequate procedural grounds to decide
the case); Heckman v. Jividen, 249 W. Va. 734, 745, 901 S.E.2d 297, 308 (Ct. App. 2024)
(declining to address the merits of the petitioners’ claims when the respondents were
entitled to qualified immunity). I am frequently reminded of this policy and practice by my
colleagues.
Nevertheless, in this case it is totally unnecessary for this Court to decide whether a
30–40 minute commute is sufficient to rebut the 50-50 custodial allocation presumed by
West Virginia Code § 48-9-102a (2022) as “impracticable” under West Virginia Code §
48-9-209(f)(5) (2024). This is because in this case, Jacob H. failed to preserve the issues
he raises before this Court on appeal. “As a general rule, nonjurisdictional issues not
objected to at trial are deemed waived and may not be raised for the first time on appeal.”
Johnson v. State Dep't of Motor Vehicles, 173 W. Va. 565, 571, 318 S.E.2d 616, 622
(1984). See also In re M.F.-1, 250 W. Va. 312, 902 S.E.2d 861, 873 (2024); Syl Pt. 7,
Wheeling Dollar Sav. & Tr. Co. v. Leedy, 158 W. Va. 926, 216 S.E.2d 560 (1975); Syl. Pt.
1, State Rd. Comm'n v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964). The rationale
behind this rule disregarding issues on appeal that were not raised below is rooted in
fairness to other parties, and the need to have the issue and its facts refined, developed, and
adjudicated by the trial court to enhance the appellate court’s disposition of the issue. See
Whitlow v. Bd. of Educ. of Kanawha Cnty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993).
Applying this rule to Jacob H.’s assignments of error, they should have been
dismissed as waived, not adjudicated on the merits. None of the arguments raised by Jacob
H. are jurisdictional in nature, so they must have been raised and ruled on by the family
court below. However, a review of the February 6, 2024, hearing video reveals that Jacob
H. did not make a single formal objection, or even argue against any of the terms of the
order which he now appeals. Indeed, Jacob H. verbally and affirmatively agreed to the
school week schedule which gave him Wednesday evenings and Thursday overnights, and
to the 50-50 summer schedule. By failing to object to any of these matters, Jacob H. waived
appellate arguments based upon them. Therefore, this Court should have dismissed Jacob
H.’s arguments concerning the rebuttal of 50-50 custodial allocation as waived.
5
Instead of neatly disposing of the issues raised in this case, the majority wades into
the fray and weighs in on the debate of what sort of distance and time is sufficient to rebut
the 50-50 presumption of custodial allocation. In doing so, it needlessly decides that a
school commute of 30–40 minutes is enough to rebut the 50-50 presumption. This decision
has worrying implications, as West Virginia is a state where a slim majority of its
population live in rural areas where travel distances to schools are generally longer. See
West Virginia Population 2024, World Population Review,
https://worldpopulationreview.com/states/west-virginia (last visited Nov. 12, 2024).
Travel distances to schools are further lengthened by the increased school consolidation
occurring in West Virginia. See A growing trend to shrink: West Virginia public school
systems turn to consolidation to combat declining enrollment, aging buildings, lack of
certified teachers, WV News (Oct. 9, 2024), https://www.wvnews.com/news/wvnews/a-
growing-trend-to-shrink-west-virginia-public-school-systems-turn-to-consolidation-to-
combat/article_d4f9798c-863b-11ef-9ac7-836a1eccf5a8.html. These factors make a
school commute of 30–40 minutes not unusual in this state. Indeed, rather than a harm to
the child, one could logically conclude that time spent in vehicle with a family member
commuting to school would be meaningful time for interaction with the child. The family
court’s conclusion that such a commute would be harmful to the child is especially odd in
light of West Virginia Code § 18-2E-5d (2008), which allows bus routes of up to 45
minutes to be created for elementary school students. It would be a strange result indeed if
we are to believe that the legislature intentionally created a system for commuting children
to school that is harmful to their educational outcomes.
Affirming the family court’s conclusion that the 50-50 presumption had been
rebutted here also creates potential problems in other cases, as current parenting
arrangements or relocations involving substantial commutes to school may be subject to
review based on this newly created standard for rebutting the 50-50 presumption as
“impracticable” under West Virginia Code § 48-9-209(f)(5) (2024). The majority attempts
to sidestep this issue by claiming that their decision is rooted in deference to the family
court rather than an actual decision on the merits. However, regardless of whether the
majority found the family court’s conclusion to be optimal or merely acceptable due to
deferential principles, by directly affirming that conclusion, the majority has accepted and
adopted it. In accepting and adopting the family court’s standard for what sort of distance
and time is sufficient to rebut the 50-50 presumption, the majority at least impliedly creates
a new standard that future litigators and courts could look to as precedent. Indeed, the
majority’s adoption of the family court’s new standard in this case challenges the very
nature of this decision, as memorandum decisions under Rule 21 of the West Virginia Rules
of Appellate Procedure are not supposed to address new points or questions of law. See In
re T.O., 238 W. Va. 455, 463, 796 S.E.2d 564, 572 (2017); State v. McKinley, 234 W. Va.
143, 152, 764 S.E.2d 303, 312 (2014).
Furthermore, regardless of the survival of Jacob H.’s arguments, a family court’s
order must be sufficient to indicate the factual and legal basis for the family court’s
6
conclusion. Collisi v. Collisi, 231 W. Va. 359, 363–64, 745 S.E.2d 250, 254–55 (2013).
Such findings and analysis are required by statute, and are necessary to conduct a
meaningful appellate review. Emanuel R. v. Danielle R., No. 23-ICA-335, 2024 WL
1590886, at *2 (W. Va. Ct. App. Feb. 8, 2024) (memorandum decision). “The court's order
determining allocation of custodial responsibility shall be in writing, and include specific
findings of fact and conclusions of law supporting the determination.” W. Va. Code § 48-
9-206(d) (2022).
Here, when the family court established a non-50-50 custodial allocation for the
school year and a 50-50 allocation for the summer, it merely indicated that this
determination was made “[i]n consideration of West Virginia Code §48-9-209 and all of
the objectives contained in West Virginia Code §48-9-102 and §48-9-102a, including the
primary objective to serve the best interests of the child.” Although the family court claims
that it considered the required statutes, it did so in a general and conclusory way. In
addition, the evidentiary basis for the family court’s conclusions regarding dangers to the
child’s scholastic performance during the school year is unclear. The record reflects no
basis for the family court’s findings or conclusions regarding the commute’s harm to the
child, either from research or expert opinions on the issue generally, or related to the
particular child in this case. Without anything more than the conclusory statements
contained in the order, it is simply the family court’s personal unsupported opinion. The
personal opinion of an individual family court judge, without an explanation or basis for
that opinion, is insufficient, stymieing appellate review were these issues properly
preserved for appeal. However, in this case the parties arguably agreed, and certainly
accepted, the parenting plan discussed and outlined by the family court judge at the hearing.
Such a joint agreement to the determination of custodial responsibility displaces the normal
statutory fact-finding requirements. W. Va. Code § 48-9-206(d) (2022). Although far from
perfect, in a case where no objections were made below and the parties seemingly agreed
to the parenting plan, the family court’s order here is adequate, if skeletal.
All of the aforementioned issues with the family court’s order support a conclusion
based on waiver of the issue without directly affirming, and lending this Court’s support
and authority to, the family court’s decision and its related “impracticability” school
commute standard. Therefore, I respectfully concur with the majority’s decision.
7