Alireza D. v. Kim Elaine W.

• Decision Date: 18 November 1996
• Docket Number: No. 23420,23420
• Citation: Alireza D. v. Kim Elaine W., 198 W.Va. 178, 479 S.E.2d 688 (W. Va. 1996)
• Court: West Virginia Supreme Court
• Parties: ALIREZA D., Plaintiff Below, Appellee, v. KIM ELAINE W., Defendant Below, Appellant.

Page 688

479 S.E.2d 688

198 W.Va. 178

ALIREZA D., Plaintiff Below, Appellee, v.KIM ELAINE W., Defendant Below, Appellant.

No. 23420.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1996.

Decided Nov. 18, 1996.

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."Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36(1977).

2."To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child."Syl. pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669(1977).

3."Where supervised visitation is ordered pursuant to W. Va.Code, 48-2-15(b)(1)(1991), the best interests of a child include determining that the child is safe from the fear of emotional and psychological trauma which he or she may experience.The person(s) appointed to supervise the visitation should have had some prior contact with the child so that the child is sufficiently familiar with and trusting of that person in order for the child to have secure feelings and so that the visitation is not harmful to his or her emotional well being.Such a determination should be incorporated as a finding of the family law master or circuit court."Syl. pt. 3, Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521(1992).

David W. Johnson, Charleston, for Appellant.

Christopher S. Butch, Joseph Cometti, Charleston, for Appellee.

PER CURIAM:

This action is before this Court¹ upon an appeal from the final order of the Circuit Court of Kanawha County, West Virginia, entered on January 24, 1995.The final order modified the parties' 1990 divorce decree which awarded custody of the parties' two children to the appellant, Kim Elaine W.Pursuant to the final order, custody of the older child was awarded to the appellee Alireza D.²The appellant contends that the modification was error.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.For the reasons stated below, the final order is reversed, and the circuit court is directed to restore custody of the older child to the appellant.Moreover, as detailed below, this action is remanded to the circuit court for further proceedings.

I

The record in this action consists of hundreds of pages of orders, pleadings, transcripts and exhibits, and the briefs before this Court are lengthy.Unfortunately, those documents describe a bitter and long-standing dispute in the aftermath of the 1990 divorce concerning the parties' children.

The appellant and the appellee were married in 1975 and last cohabited in Charleston, Kanawha County, West Virginia.The parties had two children during the marriage: Ali, born on October 15, 1979, and Bijan, born on July 20, 1983.The parties separated in 1989, and the appellee filed a complaint for divorce in the Circuit Court of Kanawha County.On January 8, 1990, that court entered a divorce decree which incorporated the parties' separation agreement.

Pursuant to the terms of the divorce decree, the appellant was awarded custody of the two children, and the appellee was ordered to pay a total of $675 per month for child support.The level of child support was computed in accord with this State's Guidelines for Child Support Awards, the current authority for which is found in W. Va.Code, 48A-1B-1[1996], et seq.In addition, the appellee was ordered to provide full medical, hospitalization and other health insurance for the children.Moreover, the divorce decree provided that the parties would not "adversely influence the minor children against the other parent."

Following the divorce, the appellee sought employment at various locations beyond the State of West Virginia in the course of his career as a computer programmer.The appellant, on the other hand, remained in the Kanawha County area and remarried in August 1990.

In February 1992, the appellee filed the first of several petitions in the Circuit Court of Kanawha County seeking custody of the parties' two children.Thereafter, the action was referred to a family law master who conducted a series of evidentiary hearings upon the issue of custody and upon other issues raised by the parties.

The evidence adduced at the family law master level was voluminous.The evidence indicated that, to some extent, both the appellant and the appellee had violated the admonition expressed in the divorce decree that the parties would not adversely influence the minor children against the other parent.Nevertheless, the evidence concerning the conduct of the appellee was clearly more damaging.That evidence demonstrated that, following the entry of the divorce decree, the appellee engaged upon a course of conduct, over a considerable period of time, designed to alienate the children from their mother, the appellant.The appellee's conduct included instructing the children to be disruptive while in the appellant's care and coaching them to continuously proclaim to others a desire to live with the appellee.³The appellee's actions were particularly directed toward the older son, Ali, who is presently seventeen years old.

In analyzing the evidence, the family law master ultimately focused upon the conclusions of two Charleston area psychiatrists who considered the custody issue.The psychiatrists were Dr. Russell I. Voltin and Dr. John P. MacCallum.As set forth in his 1992 deposition, Dr. Voltin interviewed Bijan and the appellant and concluded that the appellee had been guilty of "emotional abuse" toward the children in terms of the conduct described above.Consequently, Dr. Voltin recommended that the appellant retain custody of both sons.On the other hand, Dr. MacCallum, who interviewed both parties, the two children and the appellant's current husband, concluded that, although the appellee had, in fact, sought to alienate the children from their mother, the appellee was not an unfit parent.Moreover, Dr. MacCallum was reluctant to conclude that the appellee's conduct constituted "emotional abuse."Noting that the older child, Ali, had expressed a desire to live with his father, the appellee, Dr. MacCallum was in agreement with Dr. Voltin that Ali's statement in that regard was, no doubt, simply reflective of the appellee's wishes.Nevertheless, affording some weight to Ali's desire to live with his father and considering all relevant circumstances, including Ali's age, Dr. MacCallum recommended that the appellee be awarded custody of Ali and that the appellant retain custody of Bijan.

After further proceedings, the family law master filed a recommended decision with the circuit court.As stated in that decision, the family law master found, inter alia, that the older child, Ali, has been residing with the appellee since August 1993 and that Ali had stated to the family law master that he wanted to live with his father.Moreover, noting that Dr. Voltin never interviewed Ali, the recommended decision restated the findings of Dr. MacCallum and concluded, as did Dr. MacCallum, that Ali should remain with the appellee.In particular, the recommended decision stated that the remarriage of the appellant, the relocation of the appellee, the fact that Ali has resided with the appellee since August 1993 and the expressed desire of Ali to live with his father, "all constitute a material change in the circumstances" of the parties relative to the issue of custody, and that a change in custody, as to Ali, would be in that child's best interests.

Following various hearings conducted in the circuit court in September 1994, the circuit court, pursuant to the final order entered on January 24, 1995, adopted the recommended decision of the family law master and awarded custody of the older child, Ali, to the appellee.This appeal followed.

II

This Court has often observed that a recommended decision 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[1996], and pursuant to this Court's Rules of Practice and Procedure for Family Law.As we recently stated in syllabus point 1 of Stephen L.H. v. Sherry L. H., 195 W.Va. 384, 465 S.E.2d 841(1995): "A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard."See alsoBanker v. Banker, 196 W.Va. 535, 474 S.E.2d 465(1996).With regard to findings of fact, this Court noted in syllabus point 3 of Stephen L.H.: "Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences."See also syl. pt. 1, Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789(1993).Of course, the final order of a circuit court in such cases is reviewable by this Court.Magaha v. Magaha, 196 W.Va 187, 190, 469 S.E.2d 123, 126(1996);Hinerman v. Hinerman, 194 W.Va. 256, 259, 460 S.E.2d 71, 74(1995);Marilyn H. v. Roger Lee H., 193 W.Va. 201, 204, 455 S.E.2d 570, 573(1995).See generally syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114(1996);Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331(1995); syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264(1995).

Here, the appellant contends that the circuit court committed error in awarding custody of Ali to the appellee.As this Court held 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...