Young v. Young, No. 22503

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 460 S.E.2d 651,194 W.Va. 405
• Parties: Debra Ranee YOUNG, Plaintiff Below, Appellant, v. Niles Michael YOUNG, Defendant Below, Appellee.
• Decision Date: 11 July 1995
• Docket Number: No. 22503

Page 651

460 S.E.2d 651 194 W.Va. 405 Debra Ranee YOUNG, Plaintiff Below, Appellant,
v.
Niles Michael YOUNG, Defendant Below, Appellee. No. 22503. Supreme Court of Appeals of
West Virginia. Submitted May 9, 1995.
Decided July 11, 1995.

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[194 W.Va. 406] Syllabus by the Court

1. "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." Syllabus Point 4, Stephen L.H. v. Sherry L.H., --- W.Va. ----, --- S.E.2d ---- (No. 22084 March 6, 1995).

2. "A judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal." Syllabus Point 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966).

Ronald F. Stein, Point Pleasant, for appellant.

Shirley A. Skaggs, Calwell & McCormick, Charleston, for appellee.

PER CURIAM:

Debra Ranee Young appeals an order of the Circuit Court of Mason County remanding all economic issues in her divorce proceeding to the family law master, because Niles Michael Young, her husband, had not participated in the proceedings before the family law master. On appeal, Mrs. Young maintains that Mr. Young's failure to appear before the family law master is insufficient justification to remand all the economic issues for reconsideration. Because the record shows that Mr. Young, who was properly notified of all the family law master proceedings, chose not to participate, we find that the circuit court should not have remanded all the economic issues to the family law master.

I

After nine years of marriage, on October 1, 1993, Mrs. Young filed for a divorce alleging irreconcilable differences, as well as mental cruelty. The parties have one child, Alexandra Ann, born on April 7, 1989. Mr. Young was served with the divorce complaint on October 4, 1993. Mrs. Young filed her financial disclosure statement on November 5, 1993. A final hearing was set for January 12, 1994 and Mr. Young was notified. According to Mrs. Young, because Mr. Young had not filed an answer or financial disclosure statement, she prepared to go forward on the mental cruelty grounds and the financial information available.

Mr. Young appeared pro se at the January 12, 1994 hearing and requested a continuance in order to obtain counsel. The hearing was continued until February 23, 1994. Because Mr. Young failed to file an answer or financial disclosure statement until the morning of the hearing, Mrs. Young again prepared to proceed on the mental cruelty grounds.

On February 23, 1994, about one hour before the final hearing, Mr. Young filed his answer agreeing that irreconcilable differences existed between the parties, and his financial disclosure statement. ¹ Mr. Young

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[194 W.Va. 407] did not appear at the final hearing and the family law master proceeded without him. Mrs. Young testified at the hearing concerning the parties' assets, debts and income. Mrs. Young waived any right to alimony. Based on the evidence presented, the family law master awarded Mrs. Young custody of the child with reasonable visitation to Mr. Young, distributed the assets, assigned the debts of the parties, determined the amount of child support and child care expenses each party is to pay and awarded Mrs. Young costs and reasonable attorney's fees. On March 4, 1994, the family law master notified the parties of her recommended decision. The family law master recommended that Mr. Young be required to pay monthly $883.78 for child support as required by the child support guidelines.

On March 7, 1994, Mr. Young, now represented by counsel, filed exceptions to the family law master's recommended decision. In his exceptions, Mr. Young alleged the following: (1) Mr. Young's monthly income for 1993 was $2,500, or approximately $1,500 per month less than the family law master found using 1992 information; (2) the family law master's recommendation for Mr. Young's share of the child support and child care expenses was excessive; (3) the recommended distribution of the assets from the sale of the marital house was unsupported by the record; (4) the recommendation of his share of the child's medical, dental and optical expenses, not covered by insurance, was excessive; (5) the recommendation for payment of the marital debt was not supported by the record; and (6) the recommendation of his payment of costs and attorney's fees for Mrs. Young was not justified in an uncontested proceeding where the parties had an agreement. Mr. Young also alleges that the parties' agreement was not incorporated into the recommended decision. No designation of the record was included in Mr. Young's petition to circuit court.

On April 12, 1994, the circuit court held a hearing on Mr. Young's exceptions. The circuit court decided to remand the matter to the family law master because Mr. Young's 1993 income was different from his 1992 income, which was used to calculate child support. The court said; "Quite frankly, because if I remand it the Family Law Master shall retry the matter within twenty (20) days as set forth in the statute. So, it's going to get you back before the Family Law Master a whole lot quicker." The circuit court did affirm the award of Mrs. Young's attorney's fees and ordered Mr. Young to pay "reasonable attorney fees through and including today's proceeding." The May 11, 1994 order of the circuit court stated:

That this matter be remanded to Diana L. Johnson, Family Law Master, for the purpose of taking evidence relative to the income and earnings of the petitioner, Niles Michael Young, for the calendar year 1993 and for the purpose of taking evidence relative to the equitable distribution of marital assests [sic] and child care expenses of the respondent herein. ²

On May 12, 1994, the family law master using the 1993 information entered an order requiring Mr. Young to pay monthly $792.98 as temporary child support.

Mrs. Young then petitioned this Court alleging that the circuit court's remand was too broad because all the economic issues were to be relitigated. Mrs. Young argues that allowing Mr. Young a second opportunity to litigate the equitable distribution encourages "litigants to 'gamble' on the outcome of litigation

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[194 W.Va. 408] before a Family Law Master and if the gamble does not pay off, then the litigant can win a chance to start over." II

W.Va.Code 48A-4-20(c) [1993] requires the circuit court to review the family law master's recommended order, findings and conclusions. Thereafter, the circuit court "may enter the recommended order, recommit the case, with instructions, for further hearing before the master or may, in its discretion, enter an order upon different terms, as the ends of justice may require." W.Va.Code 48A-4-20(c) [1993]. ³ However, the circuit court's ability to overturn a family law master's findings and conclusions is limited "unless they fall within one of the six enumerated statutory criteria contained in this section." Syl. pt. 1, in part, Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789 (1993). ⁴ See Syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995) for the standards for reviewing the challenges to the family law master's findings and conclusions; Syl. pt. 1, Chrystal R.M. v....