No. 22511
___________
MARILYN H.,
Plaintiff Below, Appellee
v.
ROGER LEE H.,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Mineral County
Honorable C. Reeves Taylor, Judge
Civil Action No. 91-C-295
AFFIRMED
___________________________________________________
Submitted: January 24, 1995
Filed: February 21, 1995
Andrew S. Nason
Pepper & Nason
Charleston, West Virginia
Attorney for the Appellant
Anthony G. Halkias
Charleston, West Virginia
Desiree Halkias Haden
Shuman, Annand & Poe
Charleston, West Virginia
John I. Rogers, II
Rogers & Melody
Keyser, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Questions relating to alimony and to the maintenance
and custody of the children are within the sound discretion of the
court and its action with respect to such matters will not be
disturbed on appeal unless it clearly appears that such discretion
has been abused." Syl., Nichols v. Nichols, 160 W. Va. 514, 236
S.E.2d 36 (1977).
2. "With reference to the custody of very young
children, the law presumes that it is in the best interests of such
children to be placed in the custody of their primary caretaker, if
he or she is fit." Syl. pt. 2, Garska v. McCoy, 167 W. Va. 59, 278
S.E.2d 357 (1981).
3. "To be considered fit, the primary caretaker parent
must: (1) feed and clothe the child appropriately; (2) adequately
supervise the child and protect him or her from harm; (3) provide
habitable housing; (4) avoid extreme discipline, child abuse, and
other similar vices; and (5) refrain from immoral behavior under
circumstances that would affect the child. In this last regard,
restrained normal sexual behavior does not make a parent unfit."
Syl. pt. 5, David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912
(1989).
Per Curiam:
This action is before this Court upon the appeal of the
appellant, Roger Lee H.,See footnote 1 from the final order of the Circuit Court
of Mineral County, West Virginia, entered on March 17, 1994.
Pursuant to that order, the circuit court adopted the
recommendation of the family law master that custody of the H.
children be given to the appellant's former wife, Marilyn H., the
appellee. We granted a motion for leave to move to reverse filed
by the appellant. W. Va. R. App. P. 9(f); W. Va. Code, 58-5-25
[1931]. This Court has before it all matters of record and the
briefs and argument of counsel. For the reasons set forth below,
the final order of the Circuit Court is affirmed.
I
The appellant and the appellee were married in the State
of Maryland in 1981 and, thereafter, became residents of Mineral
County, West Virginia. Two children were born of the marriage,
Jason, born September 12, 1985, and Caitlin, born March 1, 1990.
The marriage deteriorated, and in September, 1991, the parties
separated. In October, 1991, Marilyn H. filed a complaint for
divorce in Mineral County. In that complaint and an amended
complaint, she sought custody of the H. children. Temporary
custody of the children was given to her by the family law master.
As the record demonstrates, the litigation between the
parties concerning divorce and custody issues was extensive. That
litigation evolved, however, into a concern about the involvement
of the appellee with a man by the name of Daniel K. Daniel K. was
married and had two children. He separated from his wife in
September, 1991 as did the parties herein. The record indicates
that, a year later, the appellee and Daniel K. had a child. The
appellee and Daniel K. moved from the Mineral County area to
Illinois and presently reside in Doylestown, Pennsylvania. The
appellee and Daniel K. are now married.
During his first marriage and while living in the South
Point, Ohio, area, Daniel K. was convicted of the offense of
indecent exposure. Essentially, in October, 1984, Daniel K., in an
automobile, accosted a high school age girl walking on the street,
exposed himself, and drove off. Daniel K. engaged in that type of
conduct approximately six times, all within a relatively short time
period. After his conviction, Daniel K. was placed upon probation
and ordered to attend counseling. Daniel K. attended counseling
for several months, and by letter dated April 26, 1985, The
Holistic Health Center, Inc. reported that Daniel K. "successfully
resolved the issues of depression and unhappiness that seemed to
have led to his maladaptive behavior . . . [and] it is our
recommendation that therapy be terminated due to the psychological
issues having been resolved." Daniel K. has stated that he has
engaged in no further inappropriate behavior.
In the course of this litigation, several psychological
and other reports were received with regard to Daniel K. and the
children of both families. One of the principal reports is a home
study concerning the appellee and the H. children. That report,
dated February 4, 1993, was ordered by the family law master and
was made by the Allegheny County Department of Social Services,
Cumberland, Maryland. The Maryland authorities conducted a police
background check of Daniel K. with respect to the State of Maryland
and interviewed him concerning the indecent exposure incidents.
The Maryland home study concludes:
One of our only concerns regarding Mrs. [H.]
is her relationship with Mr. [K.]. At this
time, we do not have access to information
that would prevent him from being a suitable
person in the household. However, Mr. [H.]
has continued to cause considerable problems
for Mrs. [H.], Mr. [K.] and the children.
Because of the stressful situation between Mr.
an Mrs. [H.] that is not anticipated to end
soon, we would recommend family therapy for
Mrs. [H.], Mr. [K.] and the children if the
children continue with her. . . . Mrs. [H.]
and Mr. [K.] appear to have a stable
relationship that has weathered the
difficulties in her divorce. Both Mrs. [H.]
and Mr. [K.] are committed to providing a home
and positive family life for all of the
children. We have no evidence that this home
would not be a positive place for the children
to live.
It should be noted that in addition to the indecent
exposure incidents, the appellant and Daniel K.'s former wife have
asserted that Daniel K. sexually abused his own children on at
least three occasions, by touching his son in an improper manner
and by improperly hugging and threatening his daughter. Those
assertions, however, originated contemporaneously with the breakup of the Daniel K. marriage, and his former wife did not file
complaints concerning those incidents. Moreover, the Maryland
authorities stated that they were contacted by the appellant's
attorney and informed that Daniel K. was under investigation for
sexual abuse in West Virginia. As stated in the Maryland home
study: "We contacted the West Virginia Department of Health and
Human Resources on 1/28/93. We were informed that the case was
closed and they had never actually opened an investigation."
II
In his findings of fact, conclusions of law and
recommended order to the circuit court, the family law master on
July 29, 1993, found that the appellee was the primary caretaker of
the H. children and is a "fit and proper person to have custody" of
those children. Specifically, the family law master indicated
that, but for her relationship with Daniel K., the appellant
admitted that the appellee was a fit and proper person to have
custody of the children. The family law master particularly
emphasized the Maryland home study.
By order entered on March 17, 1994, the circuit court
adopted the recommendations of the family law master. However, the
circuit court stated that a review of the Maryland home study was
not called for, since the appellee had moved to Illinois. The
circuit court concluded:
Although this Court, based upon the
examination of the matters presented through
family law master hearings, has some
reservations pertaining to contacts that the
minor children of the parties to this civil
action might have with one Daniel [K.], considering his prior conduct and his most
probable relationship as a step-parent to
these minor children, and as concerns any
possible control he might exercise over his
relationship with their mother and them in a
living situation, the Court believes that
there is testimony and information presented
that he is not a danger or improper person to
be living in a residential situation with the
minor children.
In his appeal from the March 17, 1994, order, the
appellant contends that the relationship of the appellee with
Daniel K. rendered her unfit to have custody of the H. children,
and, at least, the circuit court should have remanded the case to
the family law master to develop more information concerning the
impact of Daniel K. upon the H. children. Also, the appellant
contends that the circuit court committed error in failing to
establish a sufficient visitation schedule for the appellant and
the H. children.
III
A recommended order of a family law master is reviewable
by a circuit court pursuant to statute, W. Va. Code, 48A-4-16
[1993], W. Va. Code, 48A-4-20 [1993], and pursuant to this Court's
Rules of Practice and Procedure for Family Law. As stated in
W. Va. Code, 48A-4-20(c) [1993]: "The circuit court shall examine
the recommended order of the master, along with the findings and
conclusions of the master . . . ."
In turn, the final order of a circuit court in such cases
is reviewable by this Court, and as we initially announced in the
syllabus point of Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36
(1977): "Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the
court and its action with respect to such matters will not be
disturbed on appeal unless it clearly appears that such discretion
has been abused." That principle has been repeated many times by
this Court and recently in syllabus point 8 of White v. Williamson,
No. 22040, ___ W. Va. ___, ___ S.E.2d ___ (Dec. 21, 1994). It has
also been stated in cases reviewing circuit court decisions which
involved the family law master system. Syl. pt. 3, Sellitti v.
Sellitti, No. 22094, ___ W. Va. ___, ___ S.E.2d ___ (Dec. 19,
1994); Moses v. Moses, 187 W. Va. 755, 758, 421 S.E.2d 506, 509
(1992); syl. Marcum v. Marcum, 183 W. Va. 265, 395 S.E.2d 509
(1990).
With regard to custody issues, this Court held in
syllabus point 2 of Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357
(1981): "With reference to the custody of very young children, the
law presumes that it is in the best interests of such children to
be placed in the custody of their primary caretaker, if he or she
is fit." Syl. pt. 1, Simmons v. Comer, 190 W. Va. 350, 438 S.E.2d
530 (1993); syl. pt. 1, Lewis v. Lewis, 189 W. Va. 598, 433 S.E.2d
536 (1993). See also Andrea G. Nadel, Annotation, Primary
Caretaker Role of Respective Parents as Factor in Awarding Custody
of Child, 41 A.L.R. 4th 1129 (1985), discussing Garska. However,
we later recognized in syllabus point 3 of Allen v. Allen, 173
W. Va. 740, 320 S.E.2d 112 (1984) that "[t]he primary caretaker
presumption is rebuttable and may be overcome if the primary
caretaker is shown by a clear preponderance of the evidence to be an unfit person to have custody of a child of tender years." In
particular, we held in syllabus point 5 of David M. v. Margaret M.,
182 W. Va. 57, 385 S.E.2d 912 (1989):
To be considered fit, the primary
caretaker parent must: (1) feed and clothe
the child appropriately; (2) adequately
supervise the child and protect him or her
from harm; (3) provide habitable housing; (4)
avoid extreme discipline, child abuse, and
other similar vices; and (5) refrain from
immoral behavior under circumstances that
would affect the child. In this last regard,
restrained normal sexual behavior does not
make a parent unfit.
In this appeal, the appellant acknowledges that the
appellee generally meets the factors listed above of David M. The
appellant indicated in his testimony before the family law master
that the appellee was a good mother to the H. children. The family
law master found that the appellant admitted that the appellee was
a fit and proper person to have custody of the children, but for
her relationship with Daniel K. Both the family law master and
the circuit court found that the appellee's relationship with
Daniel K. would have no deleterious effect upon the H. children.
There is no evidence in the record that Daniel K. engaged
in acts of indecent exposure after 1984. Moreover, the evidence of
sexual abuse by Daniel K. of his own children, although somewhat
substantiated by Dr. Charles Cantone, a psychologist, was
conflicting, unsupported by other reports and studies in the
record, and rejected below. In his testimony before the family law
master, Daniel K. denied those allegations, and the appellee
testified that she had no fear or concerns with regard to Daniel K. being present around the H. children. The family law master and
the circuit court concluded that the appellee should have custody
of the H. children.
This action is unlike the circumstances in Richardson v.
Richardson, 187 W. Va. 35, 415 S.E.2d 276 (1992), and Marcum v.
Marcum, 183 W. Va. 265, 395 S.E.2d 509 (1990), in both of which
cases this Court affirmed that the father should be awarded custody
of the children. In both cases, the mother had become involved
with another man who had violent propensities toward the children,
and there was evidence that the mother was unconcerned or
disinterested toward her children. Significantly, this Court in
Richardson and Marcum emphasized the fact-finding process below.
As we stated in Marcum: "Generally, in custody cases this Court
defers to the judgment of lower courts on custody questions, partly
due to the fact that lower courts have an opportunity to observe
the demeanor of the parties and assess intangible factors which do
not appear in an appeal record." 183 W. Va. at 268, 395 S.E.2d at
512.
Nor do we find dispositive the circuit court's decision
to not review the Maryland home study. The record in this action
is extensive and contains a number of reports and studies
concerning Daniel K. and the children of both families. The
Maryland home study was considered by the family law master, and
the family law master had before him other matters of record,
including the testimony of several witnesses. In Rhodes v. Rhodes,
___ W. Va. ___, 449 S.E.2d 75 (1994), this Court observed that a family law master is in a "unique position to hear the evidence
presented and to assess the credibility of the witnesses." ___
W. Va. at ___, 449 S.E.2d at 78.
Cases involving the custody of children are among the
most difficult cases sought to be resolved by our court system.
Not only does this Court depend upon the family law master, circuit
judge and other court personnel in such cases, this Court also
depends upon the attorneys, particularly where sexual abuse is
alleged, to see that appropriate action is taken promptly and "with
attention to detail" to resolve the conflict, in the best interests
of the children. See n. 11, Mary D. v. Watt, 190 W. Va. 341, 438
S.E.2d 521 (1992). In In the Interest of Carlita B., 185 W. Va.
613, 408 S.E.2d 365 (1991), we recognized that "[u]njustified
procedural delays wreak havoc on a child's development, stability
and security." 185 W. Va. at 624, 408 S.E.2d at 376. Indeed,
Kenneth Truitt, a social worker, concluded in this case that "a
decision regarding the living situation of the children [should] be
rendered swiftly to stabilize the relationship between the children
and their parents." The attorneys who argued this appeal are not
the same attorneys who represented the parties below. This custody
dispute has been unresolved since 1991, and the attorneys below, as
this Court indicated during argument, have let the issues grow
cold. Quicker action by those attorneys would have better served
these young children.
Finally, the record indicates that the appellant's issue
concerning visitation has been resolved. On May 25, 1994 after the final order before this Court, the circuit court entered an "Agreed
Revised Visitation Order" which relates to the appellee's current
location in Doylestown, Pennsylvania.
For the reasons set forth below, the final order of the
Circuit Court of Mineral County, entered on March 17, 1994, is
affirmed.
Affirmed.
Footnote: 1
As is our practice in cases involving sensitive
matters, we use initials to identify the parties rather than full
names. See In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214
(1991).