Skidmore v. Rogers

725 S.E.2d 182, 229 W. Va. 13, 2011 W. Va. LEXIS 20
CourtWest Virginia Supreme Court
DecidedApril 4, 2011
DocketNo. 35291
StatusPublished
Cited by33 cases

This text of 725 S.E.2d 182 (Skidmore v. Rogers) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Skidmore v. Rogers, 725 S.E.2d 182, 229 W. Va. 13, 2011 W. Va. LEXIS 20 (W. Va. 2011).

Opinion

WORKMAN, Chief Justice:

The appellant in this action, Jeffrey E. Skidmore (“Skidmore”), appeals two orders of the Circuit Court of Braxton County, West Virginia, affirming two decisions of the Family Court of Braxton County. Primarily, Skidmore appeals the lower court’s decision to deny his request to increase the amount of parenting time he has with his son. The appellee, Crystal Skidmore, now Crystal Rogers (“Rogers”), objected to Skidmore’s petition to modify the parenting plan order. The family court denied Skidmore’s request finding that the relevant statute, West Virginia Code § 48-9-401 (2009), does not permit modification under the facts of this case. The circuit court affirmed that ruling. This Court, however, finds that the lower courts misinterpreted that statute and that Skid-more is entitled to increased parenting time with his son. The case, therefore, is reversed on that issue and remanded for modification of the parenting plan order. The Court, however, affirms the lower courts’ [16]*16orders concerning Rogers’s petition for an expedited modification of child support.

I. FACTS AND PROCEDURAL HISTORY

During their seven years of marriage, Skidmore and Rogers had one child, Joshua, born on June 22, 1997. The parties filed for divorce in 1999 and a final divorce decree was entered on February 26, 2002. On the same date, a parenting plan order was entered dividing parenting and child support obligations between the parties. Joshua was approximately eighteen months old when the parties separated, and approximately four and a half years old when the parenting plan order was entered.

The parenting plan order designates Rogers as the custodial parent and establishes a somewhat confusing visitation schedule for Skidmore. Under the plan, Joshua spends two consecutive overnights with his father, two times one month and three times the next. The overnights are scheduled for Skidmore’s two consecutive “days off duty” (“DODs”), because, as a police officer, Skid-more does not always have time off on weekends and his DODs are subject to change.1 Thus, in practice, Joshua spends four nights with his father one month and six nights the following month. Because Skidmore lives less than ten miles from Rogers, the travel between their homes is minimal and does not impact Joshua’s access to school.

The parenting plan order further provides that the parties share decision-making responsibility for Joshua, with the exception that Rogers is solely responsible for making decisions regarding non-emergency medical care, alternate child care and discipline. Pursuant to the plan, Rogers is responsible for providing Joshua with health insurance.

Following the divorce, Skidmore remarried. He and his new wife have two children together, one of whom was born after the petition was filed in this case. These children are Joshua’s half-siblings. Rogers has also remarried, but has not had any more children.

On March 7, 2008, Skidmore filed a petition to modify the parenting plan order pursuant to West Virginia Code § 48-9-401, which allows for modifications based on substantial changes in circumstance that were not anticipated in the parenting plan order, or a showing that the plan is not working as contemplated and is manifestly harmful to the child. Skidmore argued that the parenting plan order in this case is not working as contemplated because unanticipated changes in circumstance occurred with the births of Joshua’s half-siblings. Alternatively, he argued that, even if no change in circumstances has occurred, the plan must be revised to avoid harming Joshua. He asserted that Rogers is preventing Joshua, who was eleven years old when Skidmore filed the petition, from spending significant time with his father and half-siblings.

In his petition, Skidmore alleged that Rogers has prevented Joshua from seeing his father outside of the allotted parenting plan days, and does not allow Joshua to attend special events with Skidmore’s family, such as his half-sister’s birthday parties, unless the event falls on a pre-scheduled parenting day. He further contended that Rogers’s continued animosity towards Skidmore, and her refusal to allow Joshua to spend more time with his dad, has negatively impacted Joshua’s well-being. For these reasons, Skidmore requested that the family court revise the parenting plan order to appoint Skidmore as Joshua’s primary custodian. He attached to his petition a supplemental financial statement indicating his then-current salary.

On March 31, 2008, Rogers filed a responsive pleading objecting to the petition for modification, arguing that Skidmore filed the petition to harass her and that his primary goal is to reduce his child support payments. In addition, based on the information contained in Skidmore’s supplemental financial statement, Rogers requested that Skidmore be ordered to pay increased child support. She made this request in the last paragraph [17]*17of her response brief, rather than filing a separate petition to modify child support.

Thereafter, Skidmore filed a motion requesting that the family court take Joshua’s testimony. The family court declined to hear from Joshua directly and instead appointed a guardian ad litem for Joshua, pursuant to West Virginia Code § 48-9-403. The guardian ad litem conducted interviews with Joshua and both of his parents. He then submitted a written report to the family court, finding that Joshua has a good relationship with both of his parents and both of his stepparents, and that he is particularly bonded to both his maternal grandmother and his half-sister. The guardian ad litem further found Joshua to be “bright, articulate and unusually personable” and “mature for his age.” He noted that Joshua does well in school, although both Joshua and his parents acknowledge that he needs to be pushed to complete his homework. Joshua indicated to the guardian ad litem that he would prefer to spend “equal time or close to each parent.”

In his recommendation to the Court, the guardian ad litem found that both parents provide adequate guidance to Joshua regarding his school and homework responsibilities. He concluded that Joshua’s best interests would be served through additional parenting time with Skidmore, in light of Joshua’s desire to spend more time with his father and half-sister. The guardian ad litem recommended that Rogers remain the primary custodial parent, but that the parenting plan be revised so that Joshua would split time between his parents during the school year, alternating between their homes each week.

On December 31, 2008, the family court conducted a hearing at which counsel for both parties examined the guardian ad litem. Then, on January 15, 2009, the family court conducted a telephonic hearing with the parties to advise them of its decision on Skid-more’s petition. On the record at that hearing, the family court made extensive findings of fact, including finding that a bond exists between Joshua and his half-sister and that Joshua desires to spend more time with his father. The family court noted that although it may consider Joshua’s preferences, those preferences are not binding because Joshua was not yet fourteen years old. See W. Va.Code § 48-9-402(b)(3) (2009).

Despite these findings, the family court denied Skidmore’s petition and refused to modify the parenting plan order, concluding that he was prohibited from doing so by the terms of the statute.

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Bluebook (online)
725 S.E.2d 182, 229 W. Va. 13, 2011 W. Va. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skidmore-v-rogers-wva-2011.