State ex rel. Chris Richard S. v. McCarty

• Decision Date: 11 July 1997
• Docket Number: No. 23929,23929
• Citation: State ex rel. Chris Richard S. v. McCarty, 200 W.Va. 346, 489 S.E.2d 503 (W. Va. 1997)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. CHRIS RICHARD S., Petitioner, v. Honorable Charles E. McCARTY, Judge of the Circuit Court of Jackson County, and Lisa Dawn K.S., Respondent

Page 503

489 S.E.2d 503

200 W.Va. 346

STATE of West Virginia ex rel. CHRIS RICHARD S., Petitioner, v.Honorable Charles E. McCARTY, Judge of the Circuit Court of Jackson County, and Lisa Dawn K.S., Respondent

No. 23929.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 25, 1997.

Decided July 11, 1997.

Syllabus by the Court

1."Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided."Syl. Pt. 1, Israel by Israel v. West Virginia Secondary Schools Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480(1989).

2."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).

3."The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard."Syl. Pt. 2, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64(1937).

4."Under the provisions of W.Va.Code, 1931, 48-2-15, as amended, the custody of a child cannot be changed unless a pleading is filed making such request and reasonable notice of the hearing upon the pleading is given to the party whose rights are sought to be affected."Syl. Pt. 1, Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848(1980).

5."A decree modifying a former decree with respect to custody of a child is void in the absence of reasonable notice of the hearing upon the pleading to the party whose rights are sought to be affected."Syl. Pt. 2, Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848(1980).

6."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).

7."Although a court may enter an emergency order transferring custody where there are allegations of abuse or neglect without notice and full hearing if the court deems such an order necessary for the immediate protection of the child(ren), such order should be of limited duration, should set a prompt and full hearing on the allegations, and should apprise both parties of the scope of the hearing.In the event such emergency change is found to be warranted, the court should immediately appoint a guardian ad litem for the child."Syl. Pt. 1, State ex rel. George B.W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852(1997).

8."In visitation as well as custody matters, we have traditionally held paramount the best interests of the child."Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193(1996).

Gerald M. Titus, Jr., Ronning, Palmer & Titus, Parkersburg, for Petitioner.

Kennad L. Skeen, Skeen & Skeen, Ripley, for Respondents.

PER CURIAM:

Petitioner Chris Richard S. ¹ requests a writ of prohibition preventing the Circuit Court of Jackson County, Honorable Charles E. McCarty, from modifying the custody of the Petitioner's children, Megan and Lars S.The Petitioner contends that the lower court exceeded its authority in conducting a hearing and altering a prior custody order without notice to the Petitioner.We deny the requested writ of prohibition.

I.

The Petitioner and Lisa K. (hereinafter "mother") were divorced on August 1, 1995, and custody of the parties' two children was granted to the Petitioner with visitation to the mother.²In late November 1996, the children were residing with their mother while the Petitioner was out of state on business.³During that period of visitation, the mother filed a petition, entitled Petition for Ex-Parte Relief, with the lower court requesting custody of the children.The lower court conducted a hearing on December 2, 1996, without providing notice to the Petitioner and without his actual knowledge.The children's mother alleged that the Petitioner's wife, Tracy K. S., had been accused, in June 1996, by her former husband of abusing their children, James K., and Brandon K., by spanking them with a belt and tying one of them to a chair.James had been taken to Women's and Children's Hospital after his father had noticed bruising on his buttocks.Copies of medical records indicated that bruises had been found on the thighs and buttocks of James K.While no specific allegations of improper behavior by the Petitioner were advanced, the mother indicated that she had "learned of abuse of her children at the hand of Tracy [K. S.]."The mother also indicated that the Petitioner had been out of town on business during the alleged abuse of his wife's children.The frequency of the Petitioner's business excursions and the fact that Tracy would be the caretaker for Megan and Lars during these trips was of concern to Lisa K.

At the conclusion of the December 2, 1996, hearing, the lower court transferred temporary custody to the mother, Lisa K., and the matter was referred to a family law master for hearing and recommendations regarding the permanent custody of the children.The hearing before the family law master was scheduled for January 9, 1997.

On December 3, 1996, the Petitioner learned that the lower court had entered an ex parte order granting temporary custody to Lisa K.No visitation rights to the Petitioner had been provided in the order.The Petitioner now requests a writ of prohibition preventing the lower court from transferring custody without notice to the Petitioner.

II.

The parties in this matter have informed this Court that the issues presented in this appeal may have been resolved.We therefore proceed with the realization that this issue may be moot.However, in syllabus point one of Israel by Israel v. West Virginia Secondary Schools Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480(1989), we explained:

Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

We find that the issues raised in this writ of prohibition are sufficiently ubiquitous to justify examination and to potentially prevent revisitation of this issue in a future matter.⁴

III.

Our standard of review was established in the syllabus of Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36(1977), as follows: "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."See alsoCarter v. Carter, 196 W.Va. 239, 244, 470 S.E.2d 193, 198(1996);Michael v. Michael, 196 W.Va. 155, 469 S.E.2d 14(1996).

In Crone v. Crone, 180 W.Va. 184, 375 S.E.2d 816(1988), we explained that "[p]roceedings for modification of support and custody decrees are subject to the protection of due process under the fourteenth Amendment to the United States ConstitutionandArticle III, Section 10 of the West Virginia Constitution."As we specified in syllabus point two of Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64(1937), "[t]he due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard."

In syllabus point one of Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848(1980), we explained that "[u]nder the provisions of W.Va.Code, 1931, 48-2-15, as amended, the custody of a child cannot be changed unless a pleading is filed making such request and reasonable notice of the hearing upon the pleading is given to the party whose rights are sought to be affected."Syllabus point two of Acord provides: "A decree modifying a former decree with respect to custody of a child is void in the absence of reasonable notice of the hearing upon the pleading to the party whose rights are sought to be affected."The party seeking an alteration of custody must prove a change in circumstances and that the alteration of custody would materially promote the welfare of the child.We specified this procedure in syllabus point two of Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669(1977), as follows: "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."

However, these sound principles of procedural due process and justification for alteration in custody must be tempered by the realization that where the moving party alleges imminent danger to the welfare of the child or children, the procedural due process rights of the parents must be balanced against the rights of the child or children to safety.⁵Although Acord, for instance required reasonable notice to the opposing party in a change of child custody matter, that requirement cannot...