Carter v. Carter

Decision Date21 March 1996
Docket NumberNo. 22904,22904
Citation196 W.Va. 239,470 S.E.2d 193
CourtWest Virginia Supreme Court
PartiesDiana Lynn Nee Spears CARTER, Plaintiff Below, Appellant, v. Lonnie Elmer CARTER, Defendant Below, Appellee.

1. In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

2. W.Va.Code 48-2-15 (1993) grants the circuit court in a divorce proceeding plenary power to order and enforce a noncustodial parent's visitation rights with his or her children. W.Va.Code 48-2-15(b)(1) (1993), the subsection specifically dealing with visitation, provides, in pertinent part:

The court may provide for the custody of minor children of the parties, subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances. In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent....

3. Because of the extraordinary nature of supervised visitation, such visitation should be ordered when necessary to protect the best interests of the children. In determining the best interests of the children when there are allegations of sexual or child abuse, the circuit court should weigh the risk of harm of supervised visitation or the deprivation of any visitation to the parent who allegedly committed the abuse if the allegations are false against the risk of harm of unsupervised visitation to the child if the allegations are true.

4. If the protection of the children provided by supervised visitation is no longer necessary, either because the allegations that necessitated the supervision are determined to be without "credible evidence " (Mary D. v. Watt, 190 W.Va. 341, 348, 438 S.E.2d 521, 528 (1992)) or because the noncustodial parent had demonstrated a clear ability to control the propensities which necessitated the supervision, the circuit court should gradually diminish the degree of supervision required with the ultimate goal of providing unsupervised visitation. The best interests of the children should determine the pace of any visitation modification to assure that the children's emotional and physical well being is not harmed.

5. In visitation as well as custody matters, we have traditionally held paramount the best interests of the child.

Appeal from the Circuit Court of Logan County, Honorable Eric H. O'Briant, Judge, Civil Action No. 89-C-471.

Andrew A. Raptis, Charleston, for Appellant.

Thomas E. Esposito, Esposito & Esposito, Logan, for Appellee.

RECHT, Justice.

Diana Lynn Spears Carter appeals the order of the Circuit Court of Logan County finding her in contempt for failing to permit agreed visitation by Lonnie Elmer Carter, her former husband, with their minor children and ordering unsupervised overnight visitation for the children with Mr. Carter.

[196 W.Va. 242] On appeal, Ms. Carter maintains that supervised visitation should be continued because Mr. Carter abused his daughter and failed to establish a meaningful relationship with his daughter during supervised visitation. The parties have a daughter and a son, who were four and one and a half years old, respectively, when the parties' divorce was filed on August 8, 1990. Mr. Carter maintains that Ms. Carter lacks justification for insisting on supervised visitation and refusing to allow overnight visitation with his children. Based on our examination of the record, we find no error with the circuit court's finding that Ms. Carter's denial of unsupervised visitation was wrong and therefore, affirm the civil contempt order. Although we uphold the circuit court's civil contempt order, because of the lapse of about two years since Mr. Carter's last known visit with his children, he needs to reestablish his relationship with his children; accordingly, we remand this case to the circuit court to hold a hearing to determine the most effective way to enforce its previous order so as to address the children's trauma concerning the unsupervised overnight visitation and to protect the physical and emotional well being of the children.

I. FACTUAL BACKGROUND

After almost five years of marriage Mr. and Ms. Carter were divorced on August 8, 1990 on the grounds of irreconcilable differences. The divorce order provided for a further hearing on visitation after evaluations of the daughter, then four and a half (4 1/2) years old, and the parties were completed. The visitation determination was delayed because of Ms. Carter's allegations that Mr. Carter had abused their daughter. In an order entered on March 30, 1992, the circuit court found that Ms. Carter "failed to prove by a preponderance of the evidence, that the Defendant had committed ... those acts of sexual abuse and child abuse." 1 The March 30, 1992 order also found that the "children would not be harmed by supervised visitation" and ordered supervised visitation. By order entered October 30, 1992, the supervised visitation was to be held at the home of Mr. and Mrs. Russell Spears, the children's maternal grandparents. The supervised visitation arrangement was continued in 1993 by order entered June 10, 1993. Based on an October 7, 1993 hearing before the family law master (the order was entered May 23, 1994), the supervised visitation was to continue for six months until April 1, 1994, and thereafter, Mr. Carter was to have unsupervised overnight visitation. The May 23, 1994 order provided that "prior to April 1, 1994, either party can file a motion before the Court if they have serious concerns that the children are not prepared for such overnight visitation." In the May 23, 1994 order, both parties expressly waived their rights to appeal the family law master's recommendations, and neither filed a motion to alter the implementation of the overnight visitation schedule.

According to Mr. Spears, Ms. Carter's father and the supervisor of the visitations, at the last visitation in February or March 1994, Mr. Carter said for the next visit "he'd come and get them (the children) whether they kicked and screamed or whatever, that he would take them." 2 Mr. Spears also testified After the April 1, 1994 overnight visitation deadline passed without any additional visitation 3, on May 16, 1994, Mr. Carter filed his first contempt petition. By order entered September 8, 1994, the circuit court found Ms. Carter in contempt because she had not shown good cause for violating the visitation order. The circuit court ordered overnight visitation and fined Ms. Carter $300, which she paid. On the ordered overnight visitation of September 2, 1994, Ms. Carter testified that although she was attempting to comply with the court's visitation order by preparing to take the children to the visitation, she did not take the children to the Spears' house where Mr. Carter was supposed to pick up the children. Mr. Carter testified that after he waited about one and a half (1 1/2) hours at the Spears' house, he went to Ms. Carter's house but was told by a neighbor she was not there. At the next scheduled visitation, Mr. Carter again went to the Spears' house, where he waited about an hour to no avail.

[196 W.Va. 243] that he heard Mr. Carter tell his daughter "that he'd have it out of her and in 30 days she'd be a different girl," which upset the little girl. Because of this visit, Mr. Spears testified that he did not want Mr. Carter visiting in his house. Ms. Carter testified that "both of the children were scared" and she did not know if either was ready for overnight visitation or would ever be ready for such visitation.

Ms. Carter testified that shortly before the scheduled visitation, she ran a number of errands and that it must have been a few minutes before the visitation time when Mr. Carter came to her house. Ms. Carter said that when she saw Mr. Carter's car outside her house, she "got scared and I got the babies and got down at the bottom of the bed." Ms. Carter had no explanation why she was scared except that Mr. Carter was not supposed to come to her house. 4 Ms. Carter alleged that several persons told her that Mr. Carter had a gun with him when he came for the visitation; however, Ms. Carter testified that she did not see any weapon and did not even see Mr. Carter. Ms. Carter provided no information concerning her failure to permit the second post contempt petition visitation of September 16, 1994.

At a hearing (date unknown), LaRee D. Naviaux, Ph.D., a psychologist who treated the daughter from 1990 until early 1994, testified that the daughter had been traumatized. 5 However, the record indicates that Dr. Naviaux was not treating the daughter at the time of the cancelled September 1994 visits and had not treated her since about February 1994. 6

After the hearing, the circuit court, by order entered on December 15, 1994, found that overnight visitation with Mr. Carter should occur and that Ms. Carter was to pay reasonable attorneys' fees and costs associated with the contempt proceeding. The circuit court noted that Mr. Carter had participated in the supervised visitation and that Ms. Carter had "continually failed to deliver the children on any regular basis citing various illnesses, mechanical difficulties and confusion"

[196 W.Va. 244] to avoid the court ordered visitation. Ms. Carter appealed to this Court and a stay of the circuit court's order was entered by this Court on November 4, 1994.

II. STANDARD OF REVIEW

In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a...

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