John W. Barrett
Barrett Law Firm PLLC Pro Se
Charleston, West Virginia
Attorney for the Appellant
JUSTICE ALBRIGHT delivered the Opinion of the Court.
Pursuant to Rule 42(c) of the West Virginia Rules of Practice and Procedure for Family Court, either party is free to withdraw his or her consent to a mediated agreement prior to the adoption of that agreement by the family court. Barring bilateral consent, there is no basis for the family court to adopt a mediated agreement.
Appellant Diana L. Mason appeals from the October
17, 2003, order of the Circuit Court of Kanawha County through which a family
court's adoption of a mediated parenting plan was upheld which modified the
original parenting plan based on the petition of Appellee Michael G. Mason.
Based on the withdrawal of her consent to amend the established parenting
plan, Appellant argues that the lower court erred in enforcing the amended
plan. Upon our review of the record and the applicable rules, we conclude
that the trial court committed error in enforcing a mediated agreement to
which Appellant had withdrawn her consent prior to the court's entering of
its order pertinent to such agreement. Accordingly, we reverse.
On October 31, 2002, Appellee filed a Petition for Modification
of Custody, Visitation, Child Support and Contempt. Based on his assertion that
there was a substantial change in circumstances since the final order of divorce,
Mr. Mason sought to have the primary custodial responsibility of Sarah B. transferred
to him or, in the alternative, he sought shared parenting such that he and Appellant
would have an equal amount of parenting time with their child. In his petition,
Appellee represented that Sarah B. had requested that she be permitted to reside
with her father.
In response to Appellee's petition, Appellant filed
a counterpetition through which she sought a ruling of contempt against Mr.
Mason. In support of her contempt motion, she averred that Mr. Mason had
called her vicious and hateful names in the presence of their daughter. She
further alleged that Appellee had obtained part-time employment in addition
to his full-time employment and accordingly requested that the child support
amount be increased.
On April 4, 2003, the parties participated in court-directed mediation. Initially, Appellant's counsel was in attendance at the mediation. Due to the fact that Appellee was without legal representation, the mediator asked Appellant's counsel not to participate in the mediation. In compliance with the mediator's request, Appellant's counsel promptly retired from the mediation.
During the course of the actual mediation, the parties agreed to equal parenting time with their daughter and a proposed mediated parenting plan was reached. Due to her dismissal from the mediation proceeding, Appellant's counsel did not have a chance to review the proposed document until after the mediation. At some point following the conclusion of the mediation, Appellant decided to withdraw her support for the modified parenting plan.
The mediator submitted her mediation outcome report
to the family court on April 8, 2003. Appellant's counsel did not sign the
mediated parenting plan and advised Appellee's former counsel that Ms. Mason
was withdrawing her support for the mediated plan.
On July 10, 2003, the family court held a hearing
on both the petition and counterpetition. After hearing the arguments of
both parties with regard to the issue of whether the mediated parenting plan
should be enforced, the family court stated that it would enforce the mediated
agreement. The family court indicated that the parties could submit to mediation
a second time to seek to alter the parenting plan if they so desired and
that lawyers could attend that mediation. The family court suggested that
a new mediator preside over any future mediation. By order dated September
8, 2003, the family court adopted the mediated parenting plan, altering the
original parenting plan to reflect that the child will reside with each parent on an equal basis meaning that [t]he
child will spend every other week with each parent.
Through this appeal, Appellant seeks to prevent
the enforcement of the family court's order which altered the original parenting
plan under which she was the primary physical custodian of the parties' child.
In clearly stated language, the mediated parenting
plan that is at issue provides: This is a mediated parenting plan prepared
by the mediator as required by the Rules of Practice and Procedure for Family
Court, and neither parent is required to sign nor has signed the mediated
agreement. When Appellant's counsel received the mediated parenting
plan under discussion a note was attached to it, indicating please
file if you agree. Appellant's counsel chose not to file the plan because
her client had withdrawn her support for the plan immediately after the mediation.
The critical component of mutual assent in the
instance of adopting mediated agreements is also addressed by Rule 43 of
the Family Court Rules. That rule provides that [a]fter being informed on the record of the mediated agreement's
child support implications, if the parties assent to the agreement on the
record, and if the court determines there is no impediment to the validity
of the agreement, the court shall incorporate the mediated agreement in an
order. W.Va.R.Fam.Ct. 43. Rather than consenting to the mediated parenting
plan, Appellant steadfastly refused to give her consent to the family court
Advocating in favor of the consent requirements
addressed by Family Court Rules 42 and 43, Appellant stresses that in light
of the inherent power struggles involved in domestic cases, there is an obvious
need for careful consideration and on-the-record assent to mediated
agreements. We agree. Pursuant to Rule 42(c) of the West Virginia Rules
of Practice and Procedure for Family Court, either party is free to withdraw
his or her consent to a mediated agreement prior to the adoption of that
agreement by the family court. Barring bilateral consent, there is no basis
for the family court to adopt a mediated agreement.
Appellant notes additionally that the family court acted in violation of Family Court Rule 43 by enforcing the mediated parenting plan. Rule 43 provides that [u]pon receipt of a mediated agreement the court shall review the agreement to determine if it is knowing, voluntary, and in the best interests of the parties' children. W.Va.R.Fam.Ct. 43. Without making any findings that the parenting plan fulfilled these requirements, the family court proceeded to enforce the mediated parenting agreement when it knew the critical elements of mutual assent and voluntariness were not present. (See footnote 1) The record of this case makes clear that both the family court and then the circuit court committed error by enforcing a mediated parenting plan which lacked the requisite consent of one of the parties.
Based on the foregoing, the decision of the Circuit Court of Kanawha County is hereby reversed.