The Family Times

West Virginia Family Law Newsletter

January 2014

Welcome to 2014! For most of us, it's the first day of the new work year. In this edition, you'll find tips for making your law practice more efficient this year and get a recap of some of the 2013 West Virginia Supreme Court Opinions affecting family law practitioners.

While the Family Times took a bit of a hiatus in 2013, the newsletter's new year's resolution is to be back in full force this year to provide you with consistent tips and updates to aid your practice.

Please continue to email the editor with newsletter articles, ideas, tips, and other helpful information. This is your newsletter and we want to hear from you!

Tips to Achieving Effective Law Firm Success in 2014!

1. Strategic Scheduling:

Structure your calendar so you have focused time for everything you need to do each day, week and month. For instance, use one day to schedule in office meetings and another for out-of-office meetings. Block off prep and drafting time on your calendar. If you travel outside your home county, try to schedule multiple hearings on the same day to consolidate travel time.

Don't forget to schedule time for yourself and your family. This could include making a goal to leave the office by a certain time each night or refusing to check work email in the evenings or on weekends.

***If you're delegating scheduling to staff (see #2) inform them of your strategic scheduling plan so that everything will be done consistently (see #3).

2. Delegate!

There are likely many tasks that can be delegated to your staff. You may need to provide final approval, but others in your firm can help with drafting correspondence and pleadings, etc., following up on the status of matters, and scheduling, among other tasks.

3. Do everything consistently!

Too often the tasks that support the growth of your law practice slip to the bottom of the to do list as "urgent" client tasks rise to the top. Find a way to create consistency in everything you do, including communicating with clients, intake of information and documents, etc. Creating checklists for yourself and staff in response to various events can build consistency and will encourage delegation of tasks so that nothing slips through the cracks.

Source: LawMarketing

Tech Tip: To Do Lists

Stay on task in 2014 with these task managers and to do list applications for all your tech devices.

Evernote: www.evernote.com
Wunderlist: www.wunderlist.com
Remember the milk: www.rememberthemilk.com

Special Thanks for the Tech Tips to:

J. Burton Hunter, III and Barron Henley

Complete List of 2013

West Virginia Supreme Court

Family Law Opinions

Mark V.H. v. Delores J.M.
Amanda A v. Kevin T. (11/6/2013)
In re Haylea G. (6/18/2013)
Collisi v. Collisi (6/13/2013)
Andrea H. v. Jason R.C. (6/05/2013)
In re Grandparent Visitation of A.P. (5/20/13)
Melinda H. v William R, II (4/19/2013)
Joshua D.R. & Sherie L.R. v. David A.M. (4/18/13)
Todd M.S. v. Julie M.G. (4/2/2013)
Cochran v. Cochran (3/28/13)
Brooke B v. Donald Ray C, II (1/24/2013)

*Note: Does not include memorandum decisions. Click on case name to view opinion.

WV Supreme Court Opinion:

In re Grandparent Visitation of A.P.

(filed 5/20/2013)

Facts: Child was born in May 2009. Mother and Child resided in the same home as the child's maternal Grandparent for the first 2.5 months of child's life. During that time, Grandparent provided "extensive care." Mother was a school teacher and did provide care for the child over summer break when she was not working. Mother and Child moved out in July 2009, however, Grandparent continued to have several visits per week and multiple overnights until December 2009. Mother and Grandparent disagreed over Mother's significant other and Grandparent had made disparaging comments in the presence of the child. Visitation gradually decreased thereafter as Mother and Grandparent's relationship deteriorated, and Mother ultimately prohibited visitation in April 2010. Grandparent filed Petition for Grandparent's Visitation in June 2010. Father resides in Florida and has no court-ordered visitation.

Procedural: Final Order of the Hancock County Family Court awarded maternal Grandparent visitation once a month for 5 hours and a period of time on Easter weekend, few hours day before Thanksgiving, 4 hours every Dec. 23, and 3 hours near child's birthday. Mother appealed.
The Circuit Court Affirmed.

Holding: Reversed and Remanded with directions to deny grandparent visitation.

Reasoning:

In reconciling competing interests, significant weight must be accorded to fit parent's wishes. Mother's status as a "fit parent" is uncontested. Mother testified extensively about Grandparent's negativity and adverse impact it will have on Child. There is a presumption that a fit parent acts in best interests of the child. See Troxel. Evidence that Grandparent maintained substantial relationship with the child until she was 11 months old did not overcome presumption against visitation by clear and convincing evidence in this case.

Relevant Statutes/Case law:

WV Code 48-10-501

(Court shall grant reasonable visitation if in child's best interest and will not substantially interfere with parent-child relationship)
WV Code 48-10-502 (Factors to consider in awarding grandparent visitation)
WV Code 48-10-702(b) (Rebuttable presumption that a grandparent filing a petition where no other custody-related action is pending is not entitled to visitation where the parent through whom the grandparent is related has custody of the child.)
Troxel v. Granville, 530 U.S. 57 (2000)(significant weight to be given to fit parent's wishes with regard to grandparent visitation)

Click here to read full opinion:

http://www.courtswv.gov/supreme-court/memo-decisions/spring2013/11-1668memo.pdf

WV Supreme Court Opinion

Melinda H. v. William R. (filed 4/19/13)

Facts:

Mother and Father have two children and were divorced in 2002. Father was ordered to pay $700 per month in child support in the Final Divorce Order. Father worked as a production specialist with Momentive Performance Materials for over 17 years during which time he earned an MBA. Father's Momentive paystub from August 2010 reflected a current monthly gross income of $6,919.48. Father quit his job at Momentive to work part-time at his fiance's family business, Marble King,earning $10 per hour. Father's uncorroborated testimony was that working at Momentive was too stressful and was causing sleeping disorders, loss of appetite, racing thoughts and depression. Father further testified that he may be able to run Marble King one day.

Father filed a Petition for Modification of Child Support on August 5, 2010 because the eldest child was emancipated and due to his change in employment income.

Procedural: Family Court attributed income to Father for child support purposes in the amount of $10 per hour at a 40 hour work week. Child Support was reduced to $332 per month. Mother appealed. The Circuit Court refused the appeal.

Holding: (Chief J. Benjamin) Reversed. Father should have been attributed income based on prior employment as he met the 3-part statutory test and did not satisfy any exception. Furthermore, the fact alone that a parent who is the full-time caretaker for a minor child is or is not attributed income based on full time federal minimum wage does not make attribution of income to the other parent based on prior earnings inequitable.

Reasoning: Family Court failed to analyze statutory 3-part test for attribution of income as set forth Porter v. Bego. As analyzed under the facts of this case: (1) Father voluntarily left his job at Momentive to be underemployed at Marble King; (2) Father is available for full time work for which he is fitted by prior training and experience; (3) a reasonable father whose ex-wife is a full time caretaker for the parties' children would not have left his well-paying job at Momentive to take a $10/hour job working only 20 hours per week.

Father did not meet any of the 4 exceptions to the attribution of income under 48-1-205(c).

1. Economic Self-Improvement Exception: Father's plan will not result, in a reasonable time, in an economic benefit to his child (who will turn 18 in October 2013). While there may be plans to turn business over to Father's fiance one day, testimony was that it would not be now or in the foreseeable future.

2. Medical Exception: Father's uncorroborated testimony regarding his health was insufficient to meet the medical exception.

3. Caretaker Exception: n/a

4. Inequitable Exception: It is not inequitable to attribute Father income based on prior earnings just because caretaker exception may apply to Mother. (See Holding above).

Relevant Statutes/Caselaw:

WV Code 48-1-205 (attribution of income statute)

Porter v. Bego, 200 W.Va. 168 (1997)(3 part test for determining whether to attribute income).

Johnson v. Johnson, 200 W.Va. 28 (1997)(standard for determining whether parent's endeavor falls under plan of economic self-improvement exception)

WV DHHR v. Gibson, 207 W.Va. 594 (2000)(Attribution of income to full-time caregiver for minor child).

Read full opinion here:

http://www.courtswv.gov/supreme-court/docs/spring2013/11-1270.pdf

Contact the Editor:

Brittany Ranson Stonestreet, Esq.

Click here to Email the Editor with ideas, articles, CLE or other events, news, QDROs, comments or to join our mailing list.

DISCLAIMER

The Family Law Times is a newsletter published monthly by the West Virginia State Bar Family Law Committee and the Kanawha County Family Law Bench Bar. Readers are welcome to submit articles or material of interest to section members by emailing the Editor.

Publishing of an announcement or article does not imply endorsement by the West Virginia State Bar or its members. Any viewpoints presented are those of the authors and do not necessarily reflect the views of the Editor, the West Virginia State Bar Family Law Committee or the Kanawha County Family Law Bench Bar. The section expressly reserves the right to refuse any requests for publication.

All the information in this newsletter is published in good faith and is intended for general information purpose only. The information contained in the newsletters should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

The newsletter editor and publishers do make any warranties about the completeness, reliability and accuracy of the information provided. Any action you take upon the information contained herein is strictly at your own risk.

From this newsletter, you can visit other websites by following hyperlinks to these sites. While we strive to provide only links to useful and ethical websites, we have no control over the content and nature of these sites and the links to other websites do not imply a recommendation for all the content found on these sites. Please be also aware that when you leave our website, other sites may have different privacy policies and terms which are beyond our control.