Higginbotham v. Higginbotham
Annotate this Case
January 1993 Term
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No. 21215
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CLAYTON E. HIGGINBOTHAM,
Plaintiff Below, Appellee
v.
JUANITA J. HIGGINBOTHAM,
Defendant Below, Appellant
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Appeal from the Circuit Court of Putnam County
Honorable Clarence L. Watt, Judge
Civil Action No. 89-C-181
REVERSED, IN PART, AND REMANDED
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Submitted: May 5, 1993
Filed: June 28, 1993
Andrew S. Nason
Pepper & Nason
Charleston, West Virginia
Attorney for Plaintiff
David L. Hill
Hill, McCoy & Corey
Hurricane, West Virginia
Attorney for Defendant
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. W. Va. Code, 48A-4-10(c) (1990), limits a circuit
judge's ability to overturn a family law master's findings and
conclusions unless they fall within one of the six enumerated
statutory criteria contained in this section. Moreover, Rule 52(a)
of the West Virginia Rules of Civil Procedure requires a circuit
court which changes a family law master's recommendation to make
known its factual findings and conclusions of law.
2. "'When the record in an action or suit is such that
an appellate court can not in justice determine the judgment that
should be finally rendered, the case should be remanded to the
trial court for further development.' Syl. pt. 2, South Side
Lumber Co. v. Stone Construction Co., 151 W. Va. 439, 152 S.E.2d 721 (1967)." Syllabus Point 3, Heydinger v. Adkins, 178 W. Va.
463, 360 S.E.2d 240 (1987).
3. "Where a petition for review of a family law
master's recommended order is filed, a party may utilize the
procedure outlined in Rule 4A(c) of the West Virginia Rules of
Appellate Procedure for making an evidentiary record." Syllabus
Point 8, State ex rel. Sullivan v. Watt, 187 W. Va. 447, 419 S.E.2d 708 (1992).
4. "Under W. Va. Code, 48A-4-10(d) (1990), a circuit
court may recommit a recommended order which is deficient as to
matters which might be affected by evidence not considered or
inadequately developed in the family law master's recommended
order. However, the circuit court must, by order, instruct the
family law master as to the deficiencies in the record." Syllabus
Point 9, State ex rel. Sullivan v. Watt, 187 W. Va. 447, 419 S.E.2d 708 (1992).
5. "Where a circuit court finds that all or portions of the audio tape taken at the family law master's hearing are inaudible and that the inaudible portions are essential to the resolution of the petition for review, the circuit court may utilize the provisions of W. Va. Code, 48A-4-10(d) (1990), or of Rule 80(e) of the West Virginia Rules of Civil Procedure to obtain the missing evidence." Syllabus Point 10, State ex rel. Sullivan v. Watt, 187 W. Va. 447, 419 S.E.2d 708 (1992).
Miller, Justice:
The defendant, Juanita J. Higginbotham, appeals from the
final order of the Circuit Court of Putnam County, entered June 25,
1991, which granted her a divorce from the plaintiff, Clayton E.
Higginbotham, and which substantially altered the findings and
recommendations made by the family law master. Mrs. Higginbotham
filed a motion for reconsideration, but it was denied by the
circuit court by an order entered May 27, 1992. Mrs. Higginbotham
contends on appeal that the circuit court erred in modifying the
family law master's findings and recommendations and requests this
Court to remand the case with special instructions to enter a
judgment based upon the family law master's conclusions or, in the
alternative, to remand the case with instructions to conduct
further proceedings on the issues. After reviewing the issues, we
find it necessary to remand the case for further development.
The parties were married on April 2, 1966, and Mr.
Higginbotham filed an action for divorce on March 21, 1989. A
temporary hearing was held and an order was entered awarding Mrs.
Higginbotham custody of the parties' minor child, $250 per month in
child support, and exclusive possession of the marital home. In
addition, the temporary order provided that Mr. Higginbotham was to
pay the mortgage payment on the marital home and that whoever paid
the joint debts of the parties would be given credit in the final
determination. Subsequently, several additional hearings were held
before the family law master who sent his proposed findings of
fact, conclusions of law, and recommended order to the circuit
court in March of 1990. Both parties filed exceptions to the
family law master's recommended order.
After filing their exceptions, the parties learned that
the majority of the audiotapes which contained the recordings of
the hearings before the family law master were either inaudible or
lost. Without the benefit of these tapes, the circuit judge
proceeded to conduct several unrecorded hearings to resolve the
parties' differences. As a result of these hearings and in light
of other evidence submitted to him, the circuit judge decided to
substantially alter the family law master's recommended order.See footnote 1
Although several changes were made from the family law master's recommended order in the circuit court's final order, the most notable ones involved child support, alimony, equitable distribution, and payment of the marital debt. For instance, the family law master calculated that $288 per month in child support was called for under the child support formula; however, Mr. Higginbotham should pay only $250 because he was making the mortgage payments of $571 per month as incident to the support.
Likewise, the family law master found that Mrs. Higginbotham was
entitled to $1 per month in alimony until the minor child reached
eighteen or was sooner emancipated, at which time, Mr. Higginbotham
should pay $350 per month in alimony. However, no alimony should
be paid so long as Mr. Higginbotham continued to make the mortgage
payments. The family law master also recommended that Mrs.
Higginbotham should receive $1,500 from Mr. Higginbotham as
consideration for all claims she may have against him for equitable
distribution.
In the final order issued by the circuit court, Mr.
Higginbotham was ordered to pay $25 per month in child support and
to continue to make the mortgage payments until the minor child
reached eighteen or was sooner emancipated. He was to pay only
$150 per month in alimony even after the child reached eighteen.See footnote 2
The order also states that Mrs. Higginbotham was to pay Mr.
Higginbotham $11,121.22, which represented her share of the debts
paid by Mr. Higginbotham, one-half of the equity in two crypts
owned by the parties, and one-half of the value of her profit
sharing. The court order does not indicate how the $11,121 figure
was precisely determined. In her brief, Mrs. Higginbotham suggests
the amount, in part, represents a portion of the mortgage payments
paid by Mr. Higginbotham.
Moreover, although not mentioned in the final order, the
circuit court wrote in a letter dated April 29, 1991, that the
$1,500 recommended award to Mrs. Higginbotham as consideration for
claims that may exist against Mr. Higginbotham was unwarranted.
Neither the final order nor the April 29, 1991, letter to the
parties, which informed the parties of the court's decision on all
the issues and requested Mr. Higginbotham's counsel to prepare an
order to its effect, provides any clear explanations for many of
the changes made between the recommended order and the final order.
We recognize that under W. Va. Code, 48A-4-10(c) (1990),
a circuit court "may, in its discretion, enter an order upon
different terms, as the ends of justice may require."See footnote 3 This
section, however, limits a circuit judge's ability to overturn a
family law master's findings and conclusions unless they fall
within one of the six enumerated statutory criteria contained in
this section. Moreover, as we indicated in Syllabus Point 2 of
Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990), Rule
52(a) of the West Virginia Rules of Civil Procedure requires a
circuit court which changes a family law master's recommendation to
make known its factual findings and conclusions of law.
In light of the substantial factual conflict between the
parties, the lack of a record before the family law master, and the
absence of clearly articulated reasons for the changes in the
family law master's recommended order, we are unable to determine
whether the circuit court was justified in entering the final
order. In Syllabus Point 3 of Heydinger v. Adkins, 178 W. Va. 463,
360 S.E.2d 240 (1987), we stated:
"'When the record in an action or
suit is such that an appellate court can not
in justice determine the judgment that should
be finally rendered, the case should be
remanded to the trial court for further
development.' Syl. pt. 2, South Side Lumber
Co. v. Stone Construction Co., 151 W. Va. 439,
152 S.E.2d 721 (1967)."
We, therefore, find it appropriate to remand this case to the
circuit court for further development.
Upon remand, the circuit court should follow the
procedure we recently set forth in State ex rel. Sullivan v. Watt,
187 W. Va. 447, 419 S.E.2d 708 (1992), to deal with situations in
which the audiotape recordings of the proceedings before the family
law master are inaudible and are incapable of being transcribed.
In Syllabus Points 8, 9, and 10 of Sullivan, we stated:
"8. Where a petition for review of
a family law master's recommended order is
filed, a party may utilize the procedure
outlined in Rule 4A(c) of the West Virginia
Rules of Appellate Procedure for making an
evidentiary record.See footnote 4
"9. Under W. Va. Code, 48A-4-10(d) (1990), a circuit court may recommit a recommended order which is deficient as to matters which might be affected by evidence not considered or inadequately developed in the family law master's recommended order.
However, the circuit court must, by order,
instruct the family law master as to the
deficiencies in the record.See footnote 5
"10. Where a circuit court finds
that all or portions of the audio tape taken
at the family law master's hearing are
inaudible and that the inaudible portions are
essential to the resolution of the petition
for review, the circuit court may utilize the
provisions of W. Va. Code, 48A-4-10(d) (1990),
or of Rule 80(e) of the West Virginia Rules of
Civil Procedure to obtain the missing
evidence."See footnote 6
Therefore, upon remand, the circuit court has the option of
following the procedure outlined in Rule 4A(c) of the West Virginia
Rules of Appellate Procedure, remanding the case to the family law
master under W. Va. Code, 48A-4-10(d), or proceeding to hear the
matter by utilizing Rule 80(e) of the West Virginia Rules of Civil
Procedure to get a statement of evidence in lieu of a transcript.
For the foregoing reasons, we hereby reverse the final
order of the Circuit Court of Putnam County in all respects, except
for the unnumbered paragraph granting the parties their divorce,
and remand the case for further development.
Reversed, in part,
and remanded.
Footnote: 1In her reply brief to this Court, Mrs. Higginbotham
asserts that the various hearings held before the circuit court
were not designed to be hearings for additional evidence, but
rather to be negotiation and settlement conferences. She further
contends that the circuit court only heard some of the evidence
presented to the family law master.
Footnote: 2We note that the minor child became eighteen years old
on September 18, 1991, which is less than three months after the
final order was entered by the circuit court.
Footnote: 3W. Va. Code, 48A-4-10(c), in its entirety, reads:
"The circuit court shall examine
the recommended order of the master, along
with the findings and conclusions of the
master, and may enter the recommended order,
may 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.
The circuit court shall not follow the
recommendation, findings, and conclusions of
a master found to be:
"(1) Arbitrary, capricious, an
abuse of discretion, or otherwise not in
conformance with the law;
"(2) Contrary to constitutional
right, power, privilege, or immunity;
"(3) In excess of statutory
jurisdiction, authority, or limitations, or
short of statutory right;
"(4) Without observance of
procedure required by law;
"(5) Unsupported by substantial
evidence; or
"(6) Unwarranted by the facts."
Footnote: 4Rule 4A(c) of the Rules of Appellate Procedure
provides, in pertinent part:
"(c) Record on Petition. . . . In
lieu of filing all or part of the transcript
of testimony, the petitioner shall set out in
the petition a statement of all facts
pertinent to the issues he raises. The
petition shall include a certificate by the
petitioner's attorney that the facts alleged
are faithfully represented and that they are
accurately presented to the best of his
ability. The use of the abbreviated
procedure, set forth in this Rule 4A, places
the highest possible fiduciary duty upon a
lawyer with regard to the court and
intentional misrepresentation of any sort is
grounds for disciplinary action."
Footnote: 5W. Va. Code, 48A-4-10(d), provides:
"In making its determinations under
this section, the circuit court shall review
the whole record or those parts of it cited
by a party. If the circuit court finds that
a master's recommended order is deficient as
to matters which might be affected by
evidence not considered or inadequately
developed in the master's recommended order,
the court may recommit the recommended order
to the master, with instructions indicating
the court's opinion, or the circuit court may
proceed to take such evidence without
recommitting the matter."
Footnote: 6Rule 80(e) of the Rules of Civil Procedure reads:
"Use of statement of evidence in lieu of transcript.--In the event a stenographic or mechanical report of the proceedings had and testimony taken at a hearing or trial before the court was not made or in the event a reporter's stenographic or mechanical record thereof has become lost or a transcript thereof is not obtainable, any party to the action may prepare a statement of the proceedings from the best available means, including his recollection, for use instead of a transcript thereof. The statement shall be served upon all other adverse parties within a reasonable time after the hearing or trial, and the adverse parties may serve objections or
amendments thereto within 10 days after
service of the statement upon them.
Thereupon the statement, with the objections
or proposed amendments, shall be submitted to
the court for settlement and approval and
when and as settled and approved such
statement becomes a part of the record when
it is signed by the judge and filed with the
court."
The complete text of W. Va. Code, 48A-4-10(d), is contained in note 5, supra.
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