Stephen L.H. v. Sherry L.H., 22084

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY; BROTHERTON; FOX; NEELY; WORKMAN; NEELY; WORKMAN; Even the two dissenters in Starcher
Citation195 W.Va. 384,465 S.E.2d 841
PartiesSTEPHEN L.H., Plaintiff Below, Appellee, v. SHERRY L.H., Defendant Below, Appellant.
Docket NumberNo. 22084,22084
Decision Date08 March 1995
Dissenting Opinion of Chief Justice Neely

March 8, 1995.

Concurring Opinion of Justice Workman

July 24, 1995.

Syllabus by the Court

1. 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.

2. When the Legislature enacts laws, it is presumed to be aware of all pertinent judgments rendered by the judicial branch. By borrowing terms of art in which are accumulated the legal tradition and meaning of centuries of practice, the Legislature presumably knows and adopts the cluster of ideas attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. When the Legislature enacted W.Va.Code, 48A-4-20(c) (1993), it intended the phrases "abuse of discretion" and "unsupported by substantial evidence" as used in this section to encompass the entire panoply of definitions which the judicial branch had previously ascribed to those terms.

3. 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.

4. If a circuit court believes a family law master failed to make findings of fact essential to the proper resolution of a legal question, it should remand the case to the family law master to make those findings. If it is of the view that the findings of fact of a family law master were clearly erroneous, the circuit court may set those findings aside on that basis. If it believes the findings of fact of the family law master are unassailable, but the proper rule of law was misapplied to those findings, the circuit court may reverse. However, a circuit court may not substitute its own findings of fact for those of a family law master merely because it disagrees with those findings.

Suzanne W. Daugherty and George A. Daugherty, Elkview, for Appellee.

Steven L. Miller, Miller & Reed, L.C., Cross Lanes, for Appellant.

CLECKLEY, Justice:

The primary issue in this case is whether the circuit court employed the correct standard of review when it entered its own findings of fact and conclusions of law that were contrary to those of the family law master. The facts of the case provide the appropriate opportunity to discuss and develop more fully the standard of review a circuit court must apply in reviewing the findings and ultimate decision of a family law master.


Because there are still aspects of this case pending in the circuit court, we first examine sua sponte whether we have jurisdiction over this appeal. Under W.Va.Code, 58-5-1 (1925), this Court has appellate jurisdiction The circuit court's decision to overturn the findings of the family law master was indeed a big part of the ongoing child visitation proceedings, but the court never addressed the issue of attorney fees that were also being sought by the defendant below and appellant herein, Sherry H. 1 This context, however, does not automatically divest us of jurisdiction. Although this Court has strictly applied the "final judgment" rule, we have stated that if we can determine from the record what the circuit court meant to do and its reasons, the record may be sufficient to permit the appeal to proceed. In this context, the intention of the circuit court is controlling. See Vaughn v. Mobil Oil Exploration and Producing Southeast, Inc., 891 F.2d 1195 (5th Cir.1990). In addressing the finality requirement, we said in Strahin v. Lantz, 193 W.Va. 285, 286 n. 1, 456 S.E.2d 12, 13 n. 1 (1995), "we adopt a practical interpretation that looks to the intention of the circuit court."

[195 W.Va. 387] over final decisions and judgment orders issued by a circuit court. We recently defined a "final judgment" as contemplated by this statute as a decision that ends the litigation on the merits and leaves nothing for the circuit court to do but execute the judgment. Syl. pt. 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

It is obvious that the circuit court felt the attorney fee issue was moot when it set aside the family law master's findings and entered its own findings in favor of the plaintiff below and appellee herein, Stephen H. From this perspective, the ruling of the circuit court can be viewed as settling all issues of the proceedings. Specifically, we find review of the circuit court's order is appropriate, as it appears it intended to dispose of the entire case. Accordingly, the order in question is final, and this Court has appellate jurisdiction. Because we have decided to reverse the judgment of the circuit court and reinstate the family law master's findings, upon remand, the circuit court should reconsider the issue of attorney fees.


We begin by noting that our review of this voluminous record developed before the family law master has been extensive. This Court has examined the entire record, including videotapes containing portions of the family law master hearings and interviews of the child witnesses, and briefs of the parties.

The record reveals Stephen H. and Sherry H. were married in August of 1984. Their daughters Ashley and Chelsey were born in December of 1985 and March of 1988, respectively. Sherry H. moved out of the marital home with her daughters in 1988, and the parties were divorced in June of 1989.

Sherry H., the primary caretaker, was granted custody of the children. It is undisputed that she allowed Stephen H. liberal visitation privileges beyond those granted in the divorce order. Apparently, for vindictive reasons, Stephen H. on some occasions did not take advantage of the scheduled weekend visits with the children. Notwithstanding these incidents, it appears the visitation arrangements were amicable.

Numerous witnesses described the children as happy little girls who were intelligent for their ages. Ashley was characterized as truthful; no witness testified that she was prone to fabricate a lie.

During the summer of 1989, the girls spent a week with Stephen H. It was after this visit that Ashley first complained to Sherry H. that her daddy had pulled her underpants down and inappropriately touched her. Ashley demonstrated the touch to her mother by pointing to her vagina. Sherry H. talked with her daughter about what had happened, but did not act immediately. Sherry H. told Sherry H. planned to ask the girls' physician, Dr. John Kelly, about her suspicions during their next appointment. Dr. Kelly examined Ashley in June of 1989. No physical evidence of abuse was found, but Dr. Kelly informed Sherry H. that she should consult with a child psychologist if she suspected child abuse. Sherry H. failed to pursue the matter any further until the following summer.

[195 W.Va. 388] her sister, Barbara B., that she was afraid Stephen H. had sexually abused the girls. During this same time period, Ashley also relayed to Barbara B. what she told her mother.

In the summer of 1990, Ashley's behavior changed significantly. She was very reluctant to go with her father and began having nightmares. Sherry H. arranged for Ashley to talk to a clinical psychologist, Linda Workman. Ms. Workman met with Ashley on July 19, 1990; August 1, 1990; and September 19, 1990, and with Ashley and Chelsey together on August 22, 1990. After these interviews, Ms. Workman notified Sherry H. that she believed Ashley was being truthful and had been molested by her father. Based on this information, Sherry H. petitioned for modification of visitation.

At the September 20, 1990, hearing before the family law master, Stephen H.'s motion for the children to be examined by independent experts was granted. He suggested the experts and arranged for the interviews with Dr. Kathleen Preville, Assistant Professor of Pediatrics, West Virginia University at the Charleston Division, and Pam Rockwell, a sexual abuse counselor.

Based upon a physical examination of the girls, Dr. Preville testified that Chelsey's examination was normal. The findings of Ashley's examination were basically inconclusive. Ashley's hymenal opening was larger by one standard deviation than the average size for her age. Dr. Preville testified that the evidence would be consistent with digitalization. However, on cross examination, she admitted the size was still within normal ranges. Furthermore, Ashley's labial tissues were fused at birth and required treatment by medication to mature fully, and this treatment could not be ruled out as a factor causing the slight deviation.

Ms. Rockwell interviewed Ashley on October 10, 1990; October 22, 1990; and November 8, 1990; and videotaped an interview conducted on November 13, 1990. Anatomically correct dolls were used to help Ashley explain what she remembered. Ashley, pointing to the area between her legs, demonstrated to Ms. Rockwell where she was touched by her father. She indicated that no one other than her father had touched her in that area of her body. Ashley also said her father touched Chelsey the same way, and this event occurred in the bedroom of his house. Ms. Rockwell testified that based on these interviews, she believed both Ashley and Chelsey were sexually abused by Stephen H. Ms. Rockwell further testified it was impossible to believe a four-year-old would fabricate these allegations.

Sherry H. testified that Ashley was particularly reluctant to go with her father during Thanksgiving visitation of 1990. Two day-care workers testified they were unaware of the abuse allegations at...

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