# M.M. II v. B.M.

> West Virginia Supreme Court · June 15, 2015

URL: https://www.frixlaw.com/law-library/cases/2808408

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** June 15, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil-Other
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

M.M. II, Petitioner Below, FILED
Petitioner June 15, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-0213 (Wayne County 13-CIG-R-003) OF WEST VIRGINIA

B.M., Respondent Below,
Respondent

MEMORANDUM DECISION
Petitioner Stepfather Mark M. II, by counsel Gary L. Michels II, appeals the Circuit Court
of Wayne County’s January 17, 2014, amended order dismissing his petition for guardianship of
five-year-old A.M.1 Respondent Father Brandon M., by counsel Alison R. Gerlach, filed a
response in support of the circuit court’s order. On appeal, petitioner claims that the circuit court
erred in finding that West Virginia was not the child’s home state and in dismissing his
guardianship petition for lack of jurisdiction.

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.

The child was born in 2009 in North Carolina, where both of her biological parents and
extended families resided. The child lived in that state with her mother and her mother’s family;
respondent and his family had reasonable visitation with her. In September of 2012, the child’s
mother filed an action for child support against respondent in North Carolina. Three months later,
in December of 2012, the child’s mother married petitioner in North Carolina and the couple
moved, with the child, to Niagara Falls, New York. Although the exact dates and other details are
contested on appeal, petitioner and the child moved to Wayne County, West Virginia, while the
child’s mother remained in North Carolina due to her employment.

On September 20, 2013, the child’s mother died in a vehicular accident. On September 25,
2013, petitioner filed the underlying guardianship petition in the Family Court of Wayne County,

1
The parties in this case will be identified by initials pursuant to Rule 40 of the Rules of
Appellate Procedure.
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West Virginia.2 On October 3, 2013, respondent filed a custody action in North Carolina against
petitioner seeking temporary and permanent custody of the child.

In October of 2013, the circuit court held a hearing on petitioner’s guardianship petition.3
Respondent moved to dismiss for lack of jurisdiction because the child’s home state was North
Carolina, not West Virginia. At the conclusion of that hearing, the circuit court determined that
additional investigation was necessary on the jurisdictional question, and it continued the matter
to provide the parties with additional time for that investigation.

Following a hearing on the jurisdictional issue in December of 2013, the circuit court
dismissed the guardianship petition finding that North Carolina was the child’s home state and
that West Virginia lacked jurisdiction over the matter. The circuit court specifically found that (1)
the child, the child’s mother, and petitioner moved back to North Carolina in February of 2013;
(2) petitioner and the child moved to Wayne County, West Virginia, in July of 2013, which was
less than four months before petitioner filed his guardianship petition in September of 2013; and
(3) the child’s mother remained in North Carolina due to her employment, but she and the child
traveled between North Carolina and West Virginia to be with one another between July of 2013
and September of 2013. This appeal followed.4

This Court has held that with regard to custody decisions, including guardianships:

“‘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.’ Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964,
216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David

2
Due to allegations in the guardianship petition that respondent abused and/or neglected
the child by abandonment and past criminal and Child Protective Services history, the family
court removed that petition to the Circuit Court of Wayne County.
3
The parties did not include any hearing transcripts in the record on appeal.
4
On January 16, 2014, petitioner moved to amend the circuit court’s January 14, 2014,
dismissal order with regard to three factual findings and moved for reconsideration of the decision
in view of those amendments. Petitioner argued that, despite the circuit court’s findings to the
contrary, (1) the child was not enrolled in kindergarten in North Carolina in 2012 because she was
too young for kindergarten at that time; (2) respondent and his family had no contact with the
child after Father’s Day in 2012; and (3) the child moved to West Virginia in February of 2013,
rather than July of 2013. Although apparently not prompted by petitioner’s motion, the circuit
court amended its January 14, 2014, dismissal order on January 17, 2014, to modify the
transitional relocation plan for the child to move back to North Carolina. In February of 2014, the
circuit court denied petitioner’s motion to amend and reconsider.
2
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M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).” Syl. Pt. 1, In re
Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). We review the circuit
court’s factual findings under a clearly erroneous standard. Syl. Pt. 1, Carter v. Carter, 196 W.Va.
239, 470 S.E.2d 193 (1996). Upon our review, we find no reversible error in this matter.

On appeal, petitioner assigns error to the circuit court’s finding that West Virginia was not
the child’s home state and, therefore, dismissing his guardianship petition for lack of jurisdiction.
Jurisdiction for guardianship proceedings in this state is exclusively governed by West Virginia
Code §§ 48-20-101 through 48-20-404, West Virginia’s codification of the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”). See W.Va. Code § 48-20-201(b)(2001)
(stating that “[s]ubsection (a) of this section is the exclusive jurisdictional basis for making a child
custody determination by a court of this State.”). Pursuant to West Virginia Code § 48-20­
201(a)(1), jurisdiction to determine initial child custody is proper in West Virginia courts if West
Virginia is the child’s home state on the date of the proceeding’s commencement. West Virginia
Code § 48-20-102(g) defines “home state” as “the state in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately before the
commencement of a child custody proceeding.” We have explained that

[t]o determine whether a state qualifies as a child’s “home state” for
purposes of determining initial jurisdiction under W.Va. Code § 48-20-201(a)
(Repl.Vol.2009), a court must analyze whether any state qualified as the child’s
“home state” at any time within the six months immediately preceding
commencement of the action.

Syl. Pt. 3, In Re: K.R., 229 W.Va. 733, 753 S.E.2d 882 (2012). Moreover, West Virginia Code §
48-20-201(a)(2) provides that jurisdiction is proper in this state only if “[a] court of another state
does not have jurisdiction under subdivision (1) of this subsection[.]”

In the case sub judice, despite petitioner’s argument that the child lived in this state for six
consecutive months prior to the commencement of this proceeding, the circuit court found that the
child moved to West Virginia in July of 2013 and that this action commenced in September of
2013, less than four months thereafter. The circuit court also found that the child, her mother, and
petitioner moved back to North Carolina from New York in February of 2013, and the child’s
mother remained a resident of North Carolina until her death in September of 2013, even while
the child moved to West Virginia in July of 2013. While petitioner claims that these findings are
erroneous, he cites no portion of the record on appeal to support his claims. “On an appeal to this
Court, the appellant bears the burden of showing that there was error in the proceedings below
resulting in the judgment of which he complains, all presumptions being in favor of the
correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2, Perdue v.
Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).

“An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court

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unless error affirmatively appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.” Syllabus point 5,
Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

Syl. Pt. 5, Skidmore v. Skidmore, 225 W.Va. 235, 691 S.E.2d 830 (2010). Rule 10(c)(4) and (7) of
the Rules of Appellate Procedure requires “appropriate and specific references to the appendix” in
the statement of the case and “an argument exhibiting clearly the points of fact and law presented
. . . . The argument must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal.” Because petitioner fails to meet his burden to demonstrate that
error affirmatively appears from the record on appeal, we cannot say that the circuit court’s
findings were clearly erroneous or that its conclusions were clearly wrong.

Based upon the circuit court’s findings, we find no reversible error in the circuit court’s
conclusions that West Virginia is not the child’s home state and, therefore, dismissing this matter
for lack of jurisdiction. We cannot find reversible error in the circuit court’s conclusion that the
child’s home state was North Carolina. West Virginia Code § 48-20-201(a)(1) provides
jurisdiction in the state that is

the home state of the child on the date of the commencement of the proceeding, or
was the home state of the child within six months before the commencement of
the proceeding, and the child is absent from this state but a parent or person
acting as a parent continues to live in this state[.]

(emphasis added.); see also W.Va. Code § 48-20-102(g) (providing that temporary absence is part
of the six-month period required to establish the child’s “home state.”). We note, too, that a North
Carolina court had previously exercised jurisdiction over this child. Although not cited by either
party, West Virginia Code § 48-20-206 provides that “a court of this state may not exercise its
jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding
concerning the custody of the child has been commenced in a court of another state having
jurisdiction substantially in conformity with this chapter.” See also W.Va. Code § 48-20-201(a)(2)
(providing jurisdiction in this state if “[a] court of another state does not have jurisdiction under
subdivision (1) of this subsection[.]”). Therefore, we find no error in the circuit court’s findings of
fact and conclusions of law dismissing this action.

For the foregoing reasons, we affirm the Circuit Court of Wayne County’s January 17,
2014, amended order.

Affirmed.

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ISSUED: June 15, 2015

CONCURRED IN BY:

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2808408. Public record. Not legal advice.