Kessel v. Leavitt, et al.
Annotate this CaseJanuary 1997 Term
___________
No. 23557
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JOHN WOODRUFF KESSEL AND RAY MILLER KESSEL,
Plaintiffs Below, Appellees and Cross-Appellants,
V.
DAVID KEENE LEAVITT, ANNE GILMORE CONATY,
ELEANOR WOLFE CONATY, THOMAS J. CONATY,
AND BRIAN P. CONATY,
Defendants Below, Appellants and Cross-Appellees.
_______________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable O.C. Spaulding, sitting by temporary assignment
Civil Action No. 92-C-2141
AFFIRMED.
_______________________________________________________
Submitted: January 28, 1997
Filed: July 22, 1998
Lonnie C.
Simmons Marvin
W. Masters
DiTrapano &
Jackson Paula
L. Wilson
Charleston, West
Virginia Masters
& Taylor
Attorney for the
Appellants Charleston,
West Virginia
Attorneys
for the Appellees
Janis K.
Stocks Brendon
C. O'Shea
San Diego,
California Gleason,
Dunn, Walsh & O'Shea
Attorney for Amicus
Curiae, Albany, New
York
Academy of
California Attorney
for Amicus Curiae,
Adoption
Lawyers The
National Council for Adoption
Mitchell
Wendell Jon
R. Ryan
The American
Public Punta
Gorda, Florida
Welfare
Association President
of Amicus Curiae,
Washington,
DC National
Organization for
Legal Consultant
for Birthfathers
and Adoption Reform
Office of Secretariat
of Amicus Curiae,
Association of Administrators of
the Interstate Compact on the
Placement of Children
JUSTICE DAVIS delivered the Opinion of the Court.
RETIRED JUSTICE MCHUGH sitting by temporary assignment.
JUSTICE MCCUSKEY not participating.
CHIEF JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. "'An appellate court will not
set aside the verdict of a jury, founded on conflicting testimony and approved by the
trial court, unless the verdict is against the plain preponderance of the evidence.' Point
2, Syllabus, Stephens v. Bartlett, 118 W. Va. 421[, 191 S.E. 550
(1937)]." Syllabus point 1, Walker v. Monongahela Power Co., 147 W. Va.
825, 131 S.E.2d 736 (1963).
2. When a party appeals a lower court's
ruling to the Supreme Court of Appeals of West Virginia and he/she is required to post an
appeal bond, his/her failure to post such bond will result in the dismissal of that
party's appeal and the consequent affirmance, as to that party, of the lower court's
ruling.
3. An appellant/defendant may not assign
as error a circuit court's affirmative assertion of personal jurisdiction over a
coappellant/codefendant when the coappellant/codefendant either has not challenged the
assertion of personal jurisdiction over him/her or has otherwise, by his/her acts and/or
omissions, waived his/her right to challenge the personal jurisdiction ruling.
4. The instant a child is born, both
unwed biological parents have a right to establish a parent-child relationship with their
child. To preserve his parental interest vis-a-vis his newborn child, an unwed biological
father must, upon learning of the existence of his child, demonstrate his commitment to
assume the responsibilities of parenthood by coming forward to participate in the care,
rearing, and support of his newborn child and by commencing to establish a meaningful
parent-child relationship with his child.
5. Any person or persons who plot, plan,
scheme, or otherwise conspire to affirmatively, intentionally, and willfully conceal
information regarding a newborn child's birth or physical location, or indicating where
and in whose care the child may be found, in response to inquiries by the child's parent
for such information, may be held liable for his/her or their participation in such civil
conspiracy.
6. A parent may maintain a cause of
action against one who tortiously interferes with the parent's parental or custodial
relationship with his/her minor child, which right accrues the instant the child is born.
7. To make out a prima facie
claim for tortious interference with parental or custodial relationship, the complaining
parent must demonstrate: (1) the complaining parent has a right to establish or maintain a
parental or custodial relationship with his/her minor child; (2) a party outside of the
relationship between the complaining parent and his/her child intentionally interfered
with the complaining parent's parental or custodial relationship with his/her child by
removing or detaining the child from returning to the complaining parent, without that
parent's consent, or by otherwise preventing the complaining parent from exercising
his/her parental or custodial rights; (3) the outside party's intentional interference
caused harm to the complaining parent's parental or custodial relationship with his/her
child; and (4) damages resulted from such interference.
8. Where a parent presents a prima
facie case of tortious interference with his/her parental or custodial relationship,
the party interfering with such relationship may assert the affirmative defense of
justification, i.e., the party possessed a reasonable, good faith belief that
interference with the parent's parental or custodial relationship was necessary to protect
the child from physical, mental, or emotional harm, as contemplated by W. Va. Code §
49-1-3 (1994) (Repl. Vol. 1996). A party also cannot be held liable for tortious
interference with a parental or custodial relationship if he/she acted negligently, rather
than intentionally; possessed a reasonable, good faith belief that the interference was
proper (i.e., no notice or knowledge of an original or superseding judicial decree
awarding parental or custodial rights to complaining parent); or reasonably and in good
faith believed that the complaining parent did not have a right to establish or maintain a
parental or custodial relationship with the minor child (i.e., mistake as to
identity of child's biological parents where paternity has not yet been formally
established).
9. A parent cannot charge his/her
child's other parent with tortious interference with parental or custodial relationship if
both parents have equal rights, or substantially equal rights (as in the case of a
nonmarital child where the putative biological father seeks to establish a meaningful
parent-child relationship with his child and, until such a relationship has been
commenced, does not have rights identical to those of the child's biological mother), to
establish or maintain a parental or custodial relationship with their child.
10. The Interstate Compact on the
Placement of Children (ICPC), set forth in W. Va. Code § 49-2A-1, et seq., does
not govern pre-adoptive or adoptive placements into a state or nation which is not a party
state to the ICPC.
11. The Uniform Child Custody
Jurisdiction Act (UCCJA), W. Va. Code § 48-10-1, et seq., does not govern actions
whose main purpose is the establishment of paternity as such actions are generally in the
nature of support proceedings which are specifically excluded from the governance of the
UCCJA. W. Va. Code § 48A-6-4 (1989) (Cum. Supp. 1991); § 48-10-2 (1981) (Repl. Vol.
1996).
Davis, Justice:
See footnote 1 1The appellants herein, and defendants below, David Keene Leavitt, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and Brian P. Conaty,See footnote 2 2 appeal from a December 4, 1995, jury verdict in the Circuit Court of Cabell County returned in favor of the appellee herein, and plaintiff below, John Woodruff Kessel. Claiming that the defendants had acted fraudulently in placing the child of Anne Conaty and John Kessel for adoption and that they had tortiously interfered with John Kessel's parental rights in his son, the jury awarded John compensatory damages of $2 million and punitive damages of $5.85 million. The defendants appeal these verdicts citing, among other errors, the circuit court's lack of personal jurisdiction over defendant Leavitt; the failure of the plaintiff to state a claim for fraud or tortious interference upon which relief can be granted; the inappropriateness of certain jury instructions; and the excessiveness of the damages awards. In addition, the appellee herein, and plaintiff below, Ray Miller Kessel cross- appeals the circuit court's decision to direct a verdict in favor of the defendants with respect to his claims alleging that the defendants interfered with his grandparental relationship with the child of Anne Conaty and John Kessel. Upon a review of the parties' arguments, the record evidence, and the relevant authorities, we affirm the decision of the Circuit Court of Cabell County.
I.
FACTUAL AND PROCEDURAL HISTORY
The evidence presented to the jury reveals the following facts. Defendant Anne Gilmore Conaty [hereinafter Anne] and plaintiff John Woodruff Kessel [hereinafter John] were romantically involved for a number of years. In November, 1990, they broke off their tumultuous romance. Shortly after the break-up, Anne discovered she was pregnant, with an approximate date of conception of October 12, 1990. She informed John of the pregnancy in December, 1990.See footnote 3 3 They were briefly engaged in January, 1991. While John opposed any adoption of their unborn child, Anne wanted either to raise their unborn child, by herself or with John's help, or to place their unborn child for adoption.
Anne testified that, in January, 1991, she became afraid of
John and feared for her safety after the deterioration of their relationship. She decided
to leave her residence in Huntington, West Virginia, and take a leave of absence from her
job.See footnote 4 4 Anne visited
with a friend in Iowa for approximately two weeks, stayed with her brothers in Tennessee
for about six weeks, and traveled to her relatives' home in North Carolina, where she
remained for approximately five weeks. Anne's parents, defendant Eleanor Wolfe Conaty
[hereinafter Mrs. Conaty] and defendant Thomas J. Conaty [hereinafter Dr. Conaty] visited
her in North Carolina, and discussed the possibility of placing the unborn child for
adoption. While the Conatys were in North Carolina in April, 1991, Mrs. Conaty saw a
newspaper advertisement for a California adoption attorney. Upon contacting this
attorney's office, Mrs. Conaty was referred to another California adoption attorney,
defendant David Keene Leavitt [hereinafter Leavitt]. Mrs. Conaty then telephoned Leavitt
and either Leavitt, himself, or his wife, informed Mrs. Conaty that an adoption of Anne's
unborn child could be accomplished in California without having to notify John or obtain
his signature. Shortly thereafter, Anne spoke with Leavitt regarding the possibility of
placing her unborn child for adoption.See footnote 5 5
In May, 1991, Anne journeyed to Minnesota to stay with her
aunt. On May 20, 1991, Anne informed Leavitt that she wished to place her unborn child for
adoption. Leavitt informed Anne she could deliver her child in any place of her choosing.
Anne decided to travel to California, where her attorney was located, and to deliver her
child in that state. In early June, 1991, Anne traveled to West Hollywood, California,
where she and her mother, Mrs. Conaty, remained until the birth of Anne's child in July,
1991.
During Anne's absence from West Virginia, John sought legal
advice regarding his parental rights as the biological father of Anne's unborn child. On
May 1, 1991, John's attorney sent a letter to David Lockwood [hereinafter Lockwood], a
Huntington, West Virginia, attorney who John's counsel believed represented Anne. This
letter indicated John's desire to reconcile with Anne and his intention to withhold his
consent from, or otherwise oppose, any attempt by Anne to place their unborn child for
adoption. Lockwood, who claimed that he was not representing Anne at this time, gave the
letter to defendant Brian P. Conaty [hereinafter Brian], Anne's brother, who is also a
Huntington, West Virginia, attorney. Brian then forwarded this letter to Leavitt.
On June 3, 1991, John filed an inverse paternity actionSee footnote 6 6 in the Circuit Court
of Cabell County, West Virginia [hereinafter "West Virginia case 1"], in which
he requested a court determination of paternity and an injunction order to prohibit Anne
from placing their unborn child for adoption until paternity had been established. John
attempted to serve Anne with a copy of this petition at Brian's home, her last residence
in West Virginia; her parents' home; and Lockwood's office. Finally, on June 21, 1991,
Lockwood faxed a copy of John's inverse paternity petition to Leavitt.
The circuit court held an ex parte hearing on June 26,
1991, to consider John's request for injunctive relief. Lockwood attended the hearing to
inform the circuit judge that he did not represent Anne. The circuit judge excused
Lockwood from the proceedings, leaving only John and his counsel present at the hearing.
Following John's testimony, the circuit judge entered an ex parte temporary
injunction order, dated June 26, 1991, "prohibiting [Anne] from placing her unborn
child for adoption by anyone through any agency, church, group, attorney, or private
household until the paternity of [John] can be established or refuted." The judge
also decreed that Anne should be served with the inverse paternity petition and temporary
injunction order by publication. Brian was personally served with the inverse paternity
petition and temporary injunction order on June 28, 1991. However, on July 16, 1991, Brian
filed an affidavit rejecting service on behalf of Anne because she no longer lived at his
residence and because he was not her attorney.
At approximately the same time as John was pursuing his inverse
paternity action in West Virginia, Anne was continuing with her plans to place her unborn
child for adoption. In June, 1991, Leavitt informed Anne that he had located an Oregon
couple who wished to adopt her child at birth.See
footnote 7 7 Anne executed numerous documents requisite to the
contemplated interstate placement, including an interstate compact placement request. On
June 10, 1991, Leavitt sent these papers to the state placement coordinator for the state
of California who then forwarded the documents to the state of Oregon requesting
permission to consummate the placement.
After receiving a copy of John's inverse paternity petition,
Leavitt, on approximately July 1, 1991, faxed a copy of the petition to counsel for the
prospective adoptive parents in Oregon. Upon learning of the West Virginia litigation, the
Oregon couple's attorney suggested that pursuit of this adoption may be risky based upon
laws in the state of Oregon concerning adoptions and the registration of biological
fathers.See footnote 8 8 Consequently,
the Oregon couple withdrew their interstate application to adopt Anne's child. Following
this obstacle to the placement of Anne's unborn child, Leavitt subsequently located a
couple in Alberta, Canada, whom he felt would be suitable prospective adoptive parents.
Accordingly, Anne executed the appropriate documents to effectuate this proposed
placement.
On July 24, 1991, Anne delivered a baby boy [hereinafter Baby
Boy Conaty] at Cedars-Sinai Medical Center in Los Angeles, California.See footnote 9 9 On July 25, 1991, Anne executed the
remaining documents necessary for placement of her child with the Canadian couple. Due to
medical complications, the baby was not released from the hospital until July 26, 1991. On
that date, the Canadian couple returned to Canada with Baby Boy Conaty. Also, on July 26,
1991, the last published notice of the ex parte temporary injunction order was
published in a Huntington, West Virginia, newspaper, thereby completing service by
publication on Anne of both the temporary injunction order and the inverse paternity
petition, which was published in conjunction with the injunction order. Following the
child's birth, Anne traveled to England where she visited with her sister until she
returned to Huntington, West Virginia, in November, 1991.
Shortly after the birth of Baby Boy Conaty, John learned of the
child's birth and discovered that Mrs. Conaty recently had flown to Los Angeles. Having
seen a listing in the yellow pages of the Huntington, West Virginia, telephone book for
Leavitt in Beverly Hills, California,See footnote
10 10 John telephoned Leavitt in the hopes that he could assist with his
inverse paternity action. Leavitt informed John he was familiar with his case and was
unable to discuss it. On August 6, 1991, John's attorney telephoned Leavitt and informed
him of the ex parte temporary injunction order. She then followed the telephone
call with a letter to Leavitt and enclosed a copy of the inverse paternity petition and
temporary injunction order.
Also in August, 1991, John's counsel deposed Brian and Dr. and
Mrs. Conaty. Brian initially asserted the attorney-client privilege, based upon his prior
representation of Anne in matters unrelated to the adoption of Baby Boy Conaty, in
response to questioning about his sister's whereabouts and the birth and subsequent
adoptive placement of her child. After the circuit court prohibited Brian from asserting
this privilege where no attorney-client relationship, and consequently no attorney-client
privilege, existed, he testified at a second deposition. During his second deposition,
Brian denied having any knowledge of his sister's newborn child or her whereabouts,See footnote 11 11 despite his
earlier role in monitoring the filings of the Circuit Court of Cabell County to locate any
lawsuits filed by John against Anne seeking custody of the parties' child.
John's counsel likewise attempted to depose Dr. and Mrs. Conaty
to garner information about his infant son. Upon receiving their subpoenas to appear for
their depositions, Dr. and Mrs. Conaty asked Brian what action was required on their part.
Believing the subpoenas to be a complaint in a lawsuit filed by John, which had been
anticipated by Brian, he informed his parents to continue with their plans to vacation in
Virginia Beach, Virginia. Consequently, neither Dr. nor Mrs. Conaty appeared for their
depositions, and both of them were held in contempt for their nonappearance.
Thereafter, Dr. and Mrs. Conaty appeared at their second
scheduled depositions and purged themselves of the contempt charges. Both of these
defendants admitted that they had been in California with Anne at the time of her delivery
and adoptive placement of Baby Boy Conaty and acknowledged that she had accompanied them
on their trip to Virginia Beach. They further indicated that they had last seen Anne on
the Friday immediately preceding their deposition testimony when they "let[] her
off" at a Lexington, Kentucky, motel upon their return from Virginia Beach. Mrs.
Conaty additionally testified that she knew of three airplane tickets to London, England,
having been purchased for herself, Dr. Conaty, and Anne, and that she had known since
April, 1991, of these travel arrangements. She stated that she and her husband planned to
leave for London during the week following their depositions, that they were to see Anne
before their flight, but that she did not know Anne's present whereabouts. In sum, both
Dr. and Mrs. Conaty denied having any knowledge of the ultimate adoptive placement of Baby
Boy Conaty, the location of their daughter, or when Anne could be expected to return to
Huntington, West Virginia.
On October 3, 1991, the circuit court entered a default
judgment in favor of John in his inverse paternity action, "West Virginia case
1," as a result of Anne's failure to appear. The court "ORDERED that John
Woodruff Kessel is legally determined pursuant to West Virginia Code Section 48A-6-1(c) to
be the natural father of the infant child born to Anne Gilmore Conaty on or about July 24,
1991 [sic] with all the rights and obligations flowing therefrom." Later, on October
17, 1991, John filed a lawsuit, in conjunction with his West Virginia inverse paternity
action, in the Superior Court of California for Los Angeles County [hereinafter
"California case 1"]. The main purpose of the California litigation was to
obtain the depositions of Leavitt and Anne's California physician who had delivered her
child.
In November, 1991, John's California counsel deposed Leavitt who asserted the attorney-client privilege in response to questioning.See footnote 12 12 Following this deposition, Leavitt faxed a message to Brian suggesting that Anne retain an experienced litigation attorney in California to protect her interests. Leavitt also warned that John and his counsel should "be prevented from learning any more than they know already for another month if possible."See footnote 13 13 Brian testified that he did not recall having seen this message.
Following Leavitt's assertion of the attorney-client privilege, John's California
counsel filed a motion to compel him to answer the deposition inquiries. By order dated
January 3, 1992, the superior court approved Leavitt's earlier assertion of the privilege
and denied the plaintiffs' motion. No further proceedings were held in "California
case 1".
Additionally, on approximately November 26, 1991, John filed a
civil action in the Superior Court of California for Los Angeles County [hereinafter
"California case 2"]. In this case, naming as defendants Anne, Leavitt, and
other individuals, John asserted claims for conspiracy, fraud, intentional infliction of
emotional distress, negligent infliction of emotional distress, and child abduction. The
named defendants filed a demurrer asserting that John had failed to state a cause of
action. On January 3, 1992, John's counsel filed a request to dismiss this case. No
further action was taken in "California case 2".
In January, 1992, John continued with his West Virginia
litigation in "West Virginia case 1". On January 10, 1992, the circuit judge
ordered Anne to authorize the release of her legal and medical records in California. She
initially refused to sign the authorizations. Anne later executed the releases when
confronted with possible contempt of court charges. Upon signing the authorizations, Anne
added the notation "under protest." John notified the circuit court of the
protest language, and Anne was again ordered to sign the releases, this time without
adding such language. After signing the releases anew, Anne immediately prepared a
renunciation of her authorization and faxed her renunciation to Leavitt. She further
requested Leavitt to forward the renunciation to Cedars-Sinai Hospital. The circuit court
found Anne's renunciations to be in contempt of court and again required her to sign new
releases. Anne ultimately executed the releases.
Upon receiving Anne's California medical records, John learned
the whereabouts of the Canadian prospective adoptive couple. On approximately March 3,
1992, John, by Canadian counsel, filed a statement of claim, requesting guardianship, and
a paternity action in the Court of Queen's Bench of Alberta, Canada, Judicial District of
Calgary. Following a hearing, the Canadian trial court entered an order dated June 22,
1992, dismissing John's claims, finding his consent to be unnecessary, and granting the
Canadian couple's petition for adoption.See
footnote 14 14 John testified that he did not appeal this order or
otherwise pursue further legal remedies in Canada because of indications that he would
have been required to post a significant bond and reimburse the adoptive couple's expenses
if he had been unsuccessful.
Finally, on July 22, 1992, John filed a civil action in the Circuit Court of Cabell County, West Virginia [hereinafter "West Virginia case 2"], which is the subject of this appeal. In this matter, John and his father, Ray Miller Kessel [hereinafter Dr. Kessel],See footnote 15 15 asserted claims against Anne, Dr. and Mrs. Conaty, Brian, and Leavitt for fraud, civil conspiracy, tortious interference with parental relationship, outrage, violation of constitutional rights, and tortious interference with and deprivation of grandparental relationship. Following a trial in November, 1995, the jury, on December 4, 1995, returned a verdict against the defendants on the issues of fraudSee footnote 16 16 and tortious interferenceSee footnote 17 17 .
The jury further awarded John compensatory damages of $2 millionSee footnote 18 18 and punitive damages of $5.85 millionSee footnote 19 19 . From these
verdicts, the defendants appeal to this Court.See
footnote 20 20
II.
DISCUSSION OF ISSUES
AND
STANDARDS OF REVIEW
On appeal to this Court, the defendants assign the following
errors: the circuit court lacked personal jurisdiction over defendant Leavitt; John failed
to state a claim upon which relief can be granted as to his causes of action for fraud and
tortious interference with parental relationship; the circuit court erroneously instructed
the jury as to the validity and effect of the ex parte temporary injunction order,
the applicability of the Interstate Compact on the Placement of Children (ICPC) and the
Uniform Child Custody Jurisdiction Act (UCCJA), the right of a parent to the custody of
his/her child, the defendants' intent to violate John's due process and equal protection
rights, and the meaning of "contempt of court" and the consideration of legal
ethics standards; the circuit court improperly determined that the attorney-client
privilege between defendants Leavitt and Anne had been extinguished due to the crime or
fraud exception to this privilege; and the jury awarded excessive compensatory and
punitive damages. In addition, Dr. Kessel cross-appeals and complains that the circuit
court improperly granted the defendants a directed verdict as to his claims regarding his
grandparental rights.
During our resolution of the issues raised by the parties,
which were previously determined by the jury rendering the verdict in this case, we will
be guided by the detailed standards of appellate review applicable to jury verdicts.
"'An appellate court will not set aside the verdict of a jury, founded on conflicting
testimony and approved by the trial court, unless the verdict is against the plain
preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118
W. Va. 421[, 191 S.E. 550 (1937)]." Syl. pt. 1, Walker v. Monongahela Power
Co., 147 W. Va. 825, 131 S.E.2d 736 (1963). Additionally,
[i]n determining whether the verdict of a
jury is supported by the evidence, every reasonable and legitimate inference, fairly
arising from the evidence in favor of the party for whom the verdict was returned, must be
considered, and those facts, which the jury might properly find under the evidence, must
be assumed as true.Syl. pt. 3, id.
Furthermore, our review of the parties' assignments of error
challenging specific legal rulings of the circuit court will be de novo. See,
e.g., Syl. pt. 2, in part, Walker v. West Virginia Ethics Comm'n, ___
W. Va. ___, 492 S.E.2d 167 (1997) ("Questions of law are subject to a de novo
review."); Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo
standard of review."). We turn now to the parties' contentions.
A.
Personal Jurisdiction over Defendant Leavitt
The defendants, Anne, Dr. and Mrs. Conaty, and Brian, first assign
as error the circuit court's determination that it had personal jurisdiction over
defendant Leavitt. In this manner, the defendants represent that, during the proceedings
below, the circuit court found it had personal jurisdiction over Leavitt as a result of
his one-time advertisement in the yellow pages of the Huntington, West Virginia, telephone
directory. The defendants, however, maintain that this one-time advertisement does not
constitute contacts with this State sufficient to confer personal jurisdiction.
They argue further that Leavitt's activities do not satisfy the
requirements of the two-part jurisdictional test enunciated in Syllabus Point 5 of Abbott
v. Owens-Corning Fiberglas Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994):
A court must use a two-step approach when
analyzing whether personal jurisdiction exists over a foreign corporation or other
nonresident. The first step involves determining whether the defendant's actions satisfy
our personal jurisdiction statutes set forth in W. Va. Code, 31-1-15 [1984] and W.
Va. Code, 56-3-33 [1984]. The second step involves determining whether the defendant's
contacts with the forum state satisfy federal due process.
First, the defendants concede that even if the advertisement amounted to "transacting
business" in this State as contemplated by W. Va. Code § 56-3-33(a)(1) (1984)
(Repl. Vol. 1997), the causes of action asserted by John did not arise from this contact
as required by W. Va. Code § 56-3-33(b) (1984) (Repl. Vol. 1997), because the
telephone advertisement did not factor into the decision of the Conaty defendants to
communicate with defendant Leavitt.
Likewise, the defendants maintain that the second element of
the Abbott test cannot be satisfied because assertion of personal jurisdiction over
Leavitt offends the protections of federal due process. Citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 1873, 80 L. Ed. 2d 404, 412 (1984) (requiring nonresident defendant to have "continuous and
systematic general business contacts" with forum state as prerequisite to finding
personal jurisdiction); Syl. pt. 3, in part, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991) (focusing upon whether nonresident defendant "has purposefully
acted to obtain benefits or privileges in the forum state" in determining whether
personal jurisdiction is proper).
John responds that the circuit court's assertion of personal
jurisdiction over defendant Leavitt was proper because the record evidence demonstrates
that Leavitt had more contacts with West Virginia than his one-time telephone
advertisement. Among these contacts, John cites defendant Leavitt's direction of the
activities of Lockwood and defendant Brian with respect to the various West Virginia court
proceedings in the underlying inverse paternity action, and Leavitt's communications with
various defendants encouraging their cooperation in expediting the Canadian adoption.
Additionally, John contends that the two factors of the Abbott
test are satisfied in this case. First, with respect to the long-arm statute, Leavitt
transacted business, contracted to supply services, and caused tortious injury by acts and
omissions in this State. Citing Lozinski v. Lozinski, 185 W. Va. 558, 562,
408 S.E.2d 310, 314 (1991) (defining "'tortious act' as including any act committed
in the state which involved a breach of duty to another and resulted in ascertainable
damages").
Second, John maintains that personal jurisdiction over Leavitt is appropriate under the federal due process analysis. Citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (requiring, with respect to finding of personal jurisdiction, "certain minimum contacts . . . such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'" (citations omitted)); Norfolk S. Ry. Co. v. Maynard, 190 W. Va. 113, 116, 437 S.E.2d 277, 280 (1993) (recognizing that "[t]he critical element for determining minimum contacts is not the volume of the activity but rather 'the quality and nature of the activity'" (citation omitted)); Pries v. Watt, 186 W. Va. at 52, 410 S.E.2d at 288 (suggesting consideration of various factors to aid in court's assessment of personal jurisdiction). Employing these due process considerations, John urges that Leavitt purposefully availed himself of the benefits of this State because he advertised here and accepted Anne's case knowing her connection to this State. In addition, this State has a substantial interest in hearing this case given Leavitt's alleged disregard for its court's orders and John's rights as a biological father. Lastly, judicial economy supports personal jurisdiction in this State, because, as John claims, Leavitt was not unduly burdened by the West Virginia trial since he employed the same attorney as the other defendants and traveled only once to this State for trial purposes. Citing S.R. v. City of Fairmont, 167 W. Va. 880, 886-87, 280 S.E.2d 712, 716 (1981) (permitting court to consider interstate nature of suit in determining jurisdictional questions).
In resolving the issue of whether the circuit court properly
exercised personal jurisdiction over defendant Leavitt, we are faced with a rather unique
situation. The defendant who was most injuriously affected by the circuit court's finding
of personal jurisdiction, Leavitt, is no longer before this Court as a party to the
instant appeal. At the time this case was submitted on appeal to this Court, defendant
Leavitt was requested to post a $7 million bond in the Circuit Court of Cabell County, by
order of this Court dated January 16, 1997, which bond was later reduced to $1.1 million,
pursuant to our order of February 6, 1997. No bond having been posted, this Court
dismissed Leavitt's appeal by order dated March 20, 1997. Thereafter, Leavitt filed a
petition for writ of certiorari in the United States Supreme Court to contest our
dismissal of his appeal. By decision dated October 6, 1997, the United States Supreme
Court denied Leavitt's petition for writ of certiorari. See Leavitt v. Kessel,
___ U.S. ___, 118 S. Ct. 266, 139 L. Ed. 2d 192 (1997).
By dismissing Leavitt's appeal, we effectively have affirmed,
as to Leavitt only, those rulings of the lower court which he had attempted to challenge
by way of appeal. This Court's authority to dismiss a party's appeal upon his/her failure
to satisfy a bond requirement is set forth in Rule 6(d) of the West Virginia Rules of
Appellate Procedure:
In civil cases relief available in
. . . the Supreme Court under this rule [regarding stay of proceedings pending
appeal] may be conditioned upon the filing of a bond or other appropriate security in the
circuit court, in such amount and upon such conditions as the court granting the stay
feels is proper for the protection of the adverse party. The provisions of W. Va.
Code, 58-5-14, are applicable. . . . Failure to execute such bond may be
grounds for the dismissal of the appeal.
(Emphasis added). See also W. Va. Code § 58-5-14 (1995) (Repl. Vol. 1997)
("When required by the court, an appeal . . . shall not take effect until
bond is given by the appellants or petitioners, or one of them, or some other person, in a
penalty to be fixed by the court or judge by or in which the appeal . . . is
allowed . . . with condition[.]"); W. Va. Code § 58-5-16 (1990)
(Repl. Vol. 1997) ("An appeal . . . allowed from . . . a final
judgment, decree or order shall be dismissed whenever it appears that two months have
elapsed since the date when the appeal . . . was granted before such bond is
given as is required to be given before the appeal . . . takes effect."). See
generally State v. Legg, 151 W. Va. 401, 407, 151 S.E.2d 215, 219 (1966)
(holding provisions of W. Va. Code § 58-5-16 to be mandatory); Chenowith v.
Keenan, 61 W. Va. 108, 55 S.E. 991 (1906) (discussing generally effect of
dismissal of appeal). Cf. Syl. pt. 1, Lubeck Meat Packing, Inc. v. Motorists
Mut. Ins. Co., 179 W. Va. 372, 369 S.E.2d 223 (1988) ("'Where it appears to
the Court upon mature consideration that an appeal presents no substantial issues of fact
or law which can be considered fairly raised and where the trial court arrived at a
correct result, the appeal will be dismissed as improvidently awarded and the
judgment of the circuit court will be summarily affirmed.' Syllabus, Napier v. Plymale,
167 W. Va. 372, 280 S.E.2d 122 (1981)." (emphasis added)).
Based upon these many authorities, we hold that when a party
appeals a lower court's ruling to the Supreme Court of Appeals of West Virginia and he/she
is required to post an appeal bond, his/her failure to post such bond will result in the
dismissal of that party's appeal and the consequent affirmance, as to that party, of the
lower court's ruling. Thus, we affirm, as to Leavitt, the appealable order of the Circuit
Court of Cabell County.
As a result of the dismissal of Leavitt's appeal, and the
attendant affirmance of the lower court's rulings as to Leavitt, it may be said that
Leavitt effectively has waived his right to challenge the circuit court's finding that he
was properly within that court's personal jurisdiction. See, e.g., Syl. pt. 4, in
part, West Virginia Secondary Sch. Activities Comm'n v. Wagner, 143 W. Va.
508, 102 S.E.2d 901 (1958) ("Jurisdiction of the person may be conferred by consent
of the parties or the lack of such jurisdiction may be waived." (emphasis
added)).See footnote 21 21 Because
defendant Leavitt has waived his right to challenge the circuit court's finding of
personal jurisdiction and because he is not presently before this Court as a party to the
instant appeal, he cannot assert this, or any other, ground of error.
Our resolution of this issue is not yet complete, however, as
the remaining defendants attempt to ride on Leavitt's coattails by also challenging the
circuit court's assertion of personal jurisdiction over their codefendant, Leavitt.See footnote 22 22 In this regard,
the remaining defendants have argued that "[a]ll of [sic] Defendants were prejudiced
by the trial court's assertion of personal jurisdiction over Defendant
Leavitt. . . . The Conaty Defendants were prejudiced by being put on trial
accused of conspiring with a codefendant who had never been to West Virginia and was a
Beverly Hills lawyer." The Conaty defendants allege prejudice arising from the jury's
verdict finding both defendant Leavitt and the remaining defendants liable for fraud and
tortious interference and the jury's assessment of damages for these transgressions. Apart
from these assertions, though, the remaining defendants cite no authority for their
proposition that they also should be permitted to challenge the circuit court's assertion
of personal jurisdiction over Leavitt.
Neither can we discern any authority to permit a defendant to
challenge the personal jurisdiction of a codefendant when that codefendant, by his/her
acts or omissions, has waived his/her right to challenge such personal jurisdiction. On
the contrary,
[t]raditionally, courts have been
reluctant to allow persons to claim standing to vindicate the rights of a third party on
the grounds that third parties are generally the most effective advocates of their own
rights and that such litigation will result in an unnecessary adjudication of rights
which the holder either does not wish to assert or will be able to enjoy regardless
of the outcome of the case.Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250 (1981) (emphasis added) (citation omitted). Furthermore, the United States
Supreme Court has announced a specific "prudential standing rule that normally bars
litigants from asserting the rights or legal interests of others in order to obtain relief
from injury to themselves." Warth v. Seldin, 422 U.S. 490, 509, 95 S. Ct.
2197, 2210, 45 L. Ed. 2d 343, 361 (1975).See
footnote 23 23
Therefore, we hold that an appellant/defendant may not assign as
error a circuit court's affirmative assertion of personal jurisdiction over a
coappellant/codefendant when the coappellant/codefendant either has not challenged the
assertion of personal jurisdiction over him/her or has otherwise, by his/her acts and/or
omissions, waived his/her right to challenge the personal jurisdiction ruling.
Accordingly, we find that the remaining defendants are not proper parties to challenge the
circuit court's exercise of personal jurisdiction over defendant Leavitt. For this reason,
and as a result of our dismissal of Leavitt's appeal, we leave undisturbed the circuit
court's ruling in this regard.
B.
Statement of Claim Upon Which Relief Can Be Granted
The defendants' second assignment of error raises the question of
whether John stated a claim upon which relief can be granted with respect to his causes of
action for fraud and tortious interference with his parental relationship with Baby Boy
Conaty. In this regard, the defendants ostensibly rely upon Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure, which permits a defendant to a civil action to move for
dismissal of the case if the plaintiff "fail[s] to state a claim upon which relief
can be granted."
During the proceedings below, the circuit court reviewed the defendants' challenges to
the two causes of action asserted by John and determined that John had stated claims upon
which he could have been granted relief.
We have instructed circuit courts, when deciding a Rule
12(b)(6) motion to dismiss for failure to state a valid claim, to "constru[e] the
factual allegations in the light most favorable to the plaintiffs." Murphy v.
Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996). In this regard,
"[d]ismissal for failure to state a claim is proper where 'it is clear that no relief
could be granted under any set of facts that could be proved consistent with the
allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69,
73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59, 65 (1984)) (additional citation
omitted). Stated otherwise,
"[t]he trial court, in appraising the
sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Syl. Pt. 3, Chapman v. Kane Transfer
Company,[Inc.], [160] W. Va. [530,] 236 S.E.2d 207 (1977) [(citing] Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,[ 102,] 2 L. Ed. 2d
80[, 84] (1957)[)].
Syl., John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d 157 (1978). See also id. at 606, 245 S.E.2d at 159 ("The trial
court should not dismiss a complaint merely because it doubts that the plaintiff will
prevail in the action").
In addition to these principles permitting the circuit court to
evaluate the adequacy of the complaint's factual allegations, all decisions of Rule
12(b)(6) motions are governed by "the liberal policy of the rules of pleading with
regard to the construction of plaintiff's complaint[] and . . . the policy of the rules
favoring the determination of actions on the merits." John W. Lodge at 606,
245 S.E.2d at 159. Accordingly, we have directed that "the motion to dismiss for
failure to state a claim should be viewed with disfavor and rarely granted." Id.
When a circuit court grants a Rule 12(b)(6) motion and
dismisses a complaint for failure to state a claim upon which relief can be granted,
appellate review of the circuit court's dismissal of the complaint is de novo. See,
e.g., Shaffer v. Charleston Area Med. Ctr., Inc., 199 W. Va. 428, 433, 485 S.E.2d 12, 17 (1997) ("Where matters heard on a 12(b)(6) motion do not extend outside
the pleading, our standard of review from an order dismissing a claim under Rule 12(b)(6)
is de novo[.]" (citation omitted)); Murphy v. Smallridge, 196 W. Va. at
36, 468 S.E.2d at 168 ("We review de novo a dismissal under Rule 12(b)(6) of
the West Virginia Rules of Civil Procedure[.]" (citation omitted)).
By contrast, a circuit court's denial of a Rule 12(b)(6)
motion to dismiss, which permits the plaintiff's case to proceed on the stated causes of
action, is less often the subject of appellate review. "Ordinarily the denial of a
motion for failure to state a claim upon which relief can be granted made pursuant to West
Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately
appealable." Syl. pt. 2, State ex rel. Arrow Concrete Co. v. Hill, 194
W. Va. 239, 460 S.E.2d 54 (1995) (emphasis added). See also Hutchison v.
City of Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1996)
(acknowledging that "[o]rdinarily, this Court does not entertain nor discuss a denial
of a motion for failure to state a claim under W. Va. R. Civ. P. Rule 12(b)(6), in that
such an order is interlocutory in nature").
Nevertheless, it is possible, as is evidenced by the case sub
judice, for a party, whose Rule 12(b)(6) motion was denied by the circuit court, to
ultimately raise this issue on appeal, not as an interlocutory order but as part of the
final judgment underlying his/her appeal. Thus, "[w]hen a party, as part of an appeal
from a final judgment, assigns as error a circuit court's denial of a motion to dismiss,
the circuit court's disposition of the motion to dismiss will be reviewed de novo."
Syl. pt. 4, Ewing v. Board of Educ. of County of Summers, ___ W. Va. ___, ___
S.E.2d ___ (No. 24902 June 12, 1998). Applying this de novo standard of review, we
turn now to the defendants' arguments alleging that John failed to state claims upon which
relief can be granted for fraud and tortious interference with parental relationship.
1. Fraud
The defendants first contend that John failed to state a claim
for fraud upon which relief can be granted because his complaint failed to specifically
plead a cause of action for fraud. In this regard, the defendants suggest that the circuit
court erred by determining that John's complaint contained sufficient allegations of
fraud, as required by Rule 9(b) of the West Virginia Rules of Civil Procedure: "[i]n
all averments of fraud . . ., the circumstances constituting fraud
. . . shall be stated with particularity." The defendants further submit
that "[t]he failure to plead particularly the circumstances constituting fraud . . .
inhibits full review of the substance of the claim of fraud by this Court on appeal [and]
precludes the introduction of evidence supportive of any general allegation of fraud
contained in the complaint[.]" Syl. pt. 4, Croston v. Emax Oil Co., 195 W. Va.
86, 464 S.E.2d 728 (1995). See also Syl. pt. 1, in part, Hager v. Exxon Corp.,
161 W. Va. 278, 241 S.E.2d 920 (1978) ("[F]raud or mistake must be alleged in the
appropriate pleading with particularity[,] and the failure to do so precludes the offer of
proof thereof during the trial."). The defendants also complain that John's complaint
did not contain the words "fraud," "misrepresentation," or
"deceit" in reference to his averments of their allegedly fraudulent conduct.
In addition, the defendants suggest that John's claim for fraud
was not proper because they cannot be held liable for their allegedly fraudulent conduct.
The defendants assert that one may hold another liable for fraud only if the allegedly
liable party has a duty to the party seeking to impose such liability. Here, the
defendants state that John is attempting to impose liability on them for their silence and
concealment of certain information. Yet, the defendants maintain that, because they owed
no duty to John to reveal such information, imposition of liability upon them because
their refusal to speak was "fraudulent" is improper. Citing Restatement
(Second) of Torts § 551(1) (1976) ("One who fails to disclose to another a fact that
he knows may justifiably induce the other to act or refrain from acting . . . is
subject to the same liability to the other as though he had represented the nonexistence
of the matter that he has failed to disclose, if, but only if, he is under a duty to the
other to exercise reasonable care to disclose the matter in question.").
John answers that he did, in fact, state a valid cause of
action for fraud. In this regard, John submits that it is not necessary to use the
specific words "fraud" or "misrepresent" in a complaint asserting a
claim for fraud in order to comply with the pleading requirements of Rule 9(b). Rather, it
is essential only to plead relevant facts with such specificity and particularity as to
imply a fraud has been committed or from which a conclusion of fraud necessarily results. Citing
37 Am. Jur. 2d Fraud and Deceit § 424, at 577-78 (1968).
Furthermore, John urges that the defendants had a duty not to
conceal from him the whereabouts of his son and advocates the recognition of a cause of
action for fraud under the particular circumstances of this case. He indicates that
liability for fraudulent conduct issues from an act, omission, or concealment involving
the breach of a legal duty, trust, or confidence. Such fraudulent conduct must also
produce an injury to the aggrieved party or result in the acquisition of an undue or
unconscientious advantage over the aggrieved party. Citing Stanley v. Sewell
Coal Co., 169 W. Va. 72, 285 S.E.2d 679 (1981); Miller v. Huntington &
Ohio Bridge Co., 123 W. Va. 320, 15 S.E.2d 687 (1941); Dickel v. Smith, 38
W. Va. 635, 18 S.E. 721 (1893); Hulings v. Hulings Lumber Co., 38 W. Va. 351,
18 S.E. 620 (1893). Fraud also may arise from the active concealment of information or as
a result of voluntary misstatements in response to inquiries for information. Citing
Frazier v. Brewer, 52 W. Va. 306, 43 S.E. 110 (1903) (finding party liable for
fraudulent concealment if his/her willful concealment and suppression of facts causes
another's detrimental reliance thereon). John suggests that the defendants committed
fraudulent acts by withholding and misrepresenting information about Baby Boy Conaty
thereby preventing him from exercising his parental rights.
Finally, John characterizes the defendants' actions in
concealing information about his child as a type of civil conspiracy. Citing Syl.
pt. 1, in part, Dixon v. American Indus. Leasing Co., 162 W. Va. 832, 253 S.E.2d 150 (1979) ("In order for civil conspiracy to be actionable it must be proved
that the defendants have committed some wrongful act or have committed a lawful act in an
unlawful manner to the injury of the plaintiff[.]"). Typically, the acts of one
co-conspirator are attributable to all persons who participate in the conspiracy. Citing
Wells v. Smith, 171 W. Va. 97, 297 S.E.2d 872 (1982), overruled in part on
other grounds by Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991). Thus, John maintains that his cause of action alleging fraud
perpetrated by all of the named defendants is proper since all conspiring defendants are
accountable for the fraudulent acts of the conspiracy.
Prior to reaching the precise issue of whether John adequately
stated a valid cause of action for fraud, we must first examine the rudimentary foundation
upon which John rests his claim. It is imperative to note at the outset that a woman
possesses a myriad of choices with respect to her personal reproductive decisions.See footnote 24 24 Therefore, the
various decisions that Anne made concerning the birth and adoptive placement of Baby Boy
Conaty were squarely within her constitutionally protected decisional rights. However, we
must not overlook John's rights as the father of this child.
While, historically, an unwed biological mother possessed a
superior right to the custody of her child born without the benefit of marriage, such an
automatic preference is no longer a settled and unyielding rule. See, e.g., State
ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 631, 474 S.E.2d 554, 561 (1996)
(noting that the "liberty interest" protected by the due process clause
"includes a parent's right to establish and preserve relationships with his
or her children, even if they are born outside the traditional family" (emphasis
added) (citations omitted)); Syl. pt. 1, Honaker v. Burnside, 182 W. Va. 448,
388 S.E.2d 322 (1989) (recognizing parent's right to the custody of his/her
child absent finding that parent is unfit or has waived custodial rights); Syl. pt.
1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (holding that right of parent
to custody of his/her child is paramount to custodial rights of all other persons).See footnote 25 25 Instead, an unwed
biological father has a judicially recognized and constitutionally protected inchoate
right to establish a parent-child relationship with his child provided he satisfies
certain criteria evidencing his intent to assume the full responsibilities of parenthood. Lehr
v. Robertson, 463 U.S. 248, 257, 103 S. Ct. 2985, 2991, 77 L. Ed. 2d
614, 624 (1983) ("[T]he rights of the parents are a counterpart of the
responsibilities they have assumed."); State ex rel. Roy Allen S. v. Stone,
196 W. Va. 624, 632, 474 S.E.2d 554, 562 (1996) ("In our opinion, the strength
of a parent's bond with his or her child is not dependent upon some official or
traditional arrangement; rather, the strength derives from the parent's personal and
emotional investment and the relationship that develops from that investment.").
Specifically, [w]hen an unwed father demonstrates a full
commitment to the responsibilities of parenthood by "com[ing] forward to participate
in the rearing of his child," Caban [v. Mohammed], 441 U.S. [380,] 392,
[99 S. Ct. 1760, 1768, 60 L. Ed. 2d 297, 307 (1979),] his interest in personal contact
with his child acquires substantial protection under the Due Process Clause.[See footnote 26 26 ] At
that point it may be said that he "act[s] as a father toward his children." Id.,
at 389, n.7, 99 S. Ct., at 1766, n.7[, 60 L. Ed. 2d, at 305, n.7]. But the
mere existence of a biological link does not merit equivalent constitutional
protection. . . . "[T]he importance of the familial relationship, to
the individuals involved and to the society, stems from the emotional attachments that
derive from the intimacy of daily association, and from the role it plays in 'promot[ing]
a way of life' through the instruction of children . . . as well as from the
fact of blood relationship." Smith v. Organization of Foster Families for Equality
and Reform, 431 U.S. 816, 844, [97 S. Ct. 2094, 2109-2110, 53 L. Ed. 2d
14, 35] (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233[, 92 S. Ct.
1526, 1541-1542, 32 L. Ed. 2d 15, 34-35] (1972)).
The significance of the biological
connection is that it offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If he grasps that opportunity and
accepts some measure of responsibility for the child's future, he may enjoy the blessings
of the parent-child relationship and make uniquely valuable contributions to the child's
development. If he fails to do so, the Federal Constitution will not automatically compel
a State to listen to his opinion of where the child's best interests lie.
Lehr v. Robertson, 463 U.S. at 261-62, 103 S. Ct. at 2993-94, 77
L. Ed. 2d at 626-27 (footnotes omitted).
This Court, in echoing the pronouncement of the United States
Supreme Court, likewise has identified an unwed biological father's interest in
establishing a relationship with his child:
Although an unwed father's biological link
to his child does not, in and of itself, guarantee him a constitutional stake in his
relationship with that child, such a link combined with a substantial parent-child
relationship will do so. When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by coming forward to participate in the rearing of his
child, his interest in personal contact with his child acquires substantial protection
under the Due Process Clause in Section 10 of Article III of the West Virginia
Constitution.[See footnote 27 27
]
Syl. pt. 2, State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554. See
also State ex rel. Roy Allen S., 196 W. Va. at 638, 474 S.E.2d at 568
(directing that "it is highly relevant . . . to consider . . .
whether the putative [biological] father was dilatory in grasping the opportunity to
assert his parental rights and responsibilities").See footnote 28 28
The circumstances of the instant appeal, though, are
somewhat unusual in that, allegedly as a result of the defendants' actions, John was
unable to assert his paternal rights by establishing a parental relationship with Baby Boy
Conaty. Because the child was placed for adoption with a Canadian family almost
immediately after his birth, John was not permitted the opportunity to see or otherwise
visit with his son, much less provide for his support and otherwise fulfill his parental
obligations. Several courts have recognized that when the child with respect to whom a
father attempts to assert his parental rights is a newborn infant, a slightly modified
inquiry is appropriate to determine whether the father has "grasped the
opportunity" to establish a parent-child relationship.
Thus, where an unwed biological mother decided to place her
newborn child for adoption immediately after birth, thereby precluding the child's unwed
biological father from establishing a relationship with his child, the Supreme Court of
Louisiana determined that "if the father appears and demonstrates that he is
fully committed to his parental responsibilities and has grasped the opportunity to
commence a relationship with his [recently born] child, the court must uphold his
parental rights[.]" In re Adoption of B.G.S., 556 So. 2d 545, 558-59 (La.
1990) (emphasis added).
Also acknowledging the difficulty which an unwed biological father may have in asserting his paternal rights when his parental agenda conflicts with that of the unwed biological mother, the District of Columbia Court of Appeals decided that "when an unwed mother has relinquished her right to custody of a child at birth for adoption by strangers, the unwed father's interest in developing a custodial relationship with his child is entitled to substantial constitutional protection if he has early on, and continually, done all that he could reasonably have been expected to do under the circumstances to pursue that interest." Appeal of H.R., 581 A.2d 1141, 1162-63 (D.C. App. 1990) (per curiam) (separate opinion of Ferren, Assoc. J.) (emphasis added) (citations omitted).See footnote 29 29 See also
Petition of Kirchner, 164 Ill. 2d 468, 487-88, 208 Ill. Dec. 268, ___, 649 N.E.2d 324, 333 (1995) (per curiam) (discussing "an unwed father's rights regarding an infant placed for adoption at birth who seeks to raise his child but is prevented from doing so through deception" and announcing that "fathers . . . whose parental rights are not properly terminated and who, through deceit, are kept from assuming responsibility for and developing a relationship with their children, are entitled to the same due process rights as fathers who actually are given an opportunity and do develop this relationship"). Cf. Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 206 (Utah 1984) (dictating that unwed biological father must "file a timely notice of his claim to paternity" to protect "his parental rights in [his] newborn infant").See footnote 30 30 Thus, it appears that John would have had a valid basis for asserting a constitutionally protected right to establish and maintain a parent-child relationship with his son despite his inability to have his physical custody or to visit with him prior to his pre-adoptive placement into Canada.See footnote 31 31
Turning now to the precise issue at hand, we must determine
whether the circuit court erred in upholding John's cause of action for fraud.See footnote 32 32 John contends that
but for the defendants' actions he would have been able to demonstrate his commitment to
the responsibilities of parenthood so as to permit him to establish and maintain a
relationship with Baby Boy Conaty. While we have noted the prominence of Anne's decisional
rights, we must also consider the importance of John's parental rights.See footnote 33 33 On the one hand,
"[i]t is a principle of the common law that wherever the law gives a right
. . . , it also gives a remedy." 1 Am. Jur. 2d Actions § 41, at
749-50 (1994) (citing Wennerholm v. Stanford Univ. School of Med., 20 Cal. 2d 713,
128 P.2d 522 (1942); Perkins v. Pare, 352 So. 2d 64 (Fla. Dist. Ct. App. 1977); Rozell
v. Rozell, 281 N.Y. 106, 22 N.E.2d 254 (1939)). On the other hand, the mere
impingement of a legal right is not enough to create an automatic right of recovery in
tort. "There must also be a violation of a duty recognized by law[.]" West
Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 615, 40 S.E. 591, 592
(1902). See, e.g., 74 Am. Jur. 2d Torts § 9, at 627 n.81 (1974) (impliedly
creating duty to refrain from disturbing another's exercise of his/her legal rights by
recognizing that "[o]ne who does anything, or permits anything to be done, without
just cause or excuse, the necessary consequence of which interferes with or annoys another
in the enjoyment of his legal rights, is absolutely liable" (citing Taylor v. City
of Cincinnati, 143 Ohio St. 426, 28 Ohio Op. 369, 55 N.E.2d 724 (1944))). With these
principles in mind, we look to the law of fraud to determine whether John has stated a
valid cause of action.
Generally speaking, "[f]raud has been defined as including
all acts, omissions, and concealments which involve a breach of legal duty, trust or
confidence justly reposed, and which are injurious to another, or by which undue and
unconscientious advantage is taken of another." Stanley v. Sewell Coal Co.,
169 W. Va. 72, 76, 285 S.E.2d 679, 682 (1981) (citations omitted). Accord Dickel
v. Smith, 38 W. Va. 635, 641, 18 S.E. 721, 723 (1893). More precisely,
"'"[t]he essential elements in
an action for fraud are: (1) that the act claimed to be fraudulent was the act of the
defendant or induced by him; (2) that it was material and false; that plaintiff relied on
it and was justified under the circumstances in relying upon it; and (3) that he was
damaged because he relied on it." Syl. Pt. 1, Lengyel v. Lint, 167 W. Va.
272, 280 S.E.2d 66 (1981).' Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179
W. Va. 340, 368 S.E.2d 710 (1988)." Syllabus point 2, Bowling v. Ansted
Chrysler- Plymouth-Dodge, [Inc.], 188 W. Va. 468, 425 S.E.2d 144 (1992).
Syl. pt. 3, Cordial v. Ernst & Young, 199 W. Va. 119, 483 S.E.2d 248
(1996). Accord Teter v. Old Colony Co., 190 W. Va. 711, 717, 441 S.E.2d 728, 734 (1994); Powell v. Time Ins. Co., 181 W. Va. 289, 296, 382 S.E.2d 342,
349 (1989).
Perhaps more instructive to the resolution of this issue is our
acknowledgment that "'an action for fraud can arise by the concealment of
truth.'" Teter, 190 W. Va. at 717, 441 S.E.2d at 734 (quoting Thacker
v. Tyree, 171 W. Va. 110, 113, 297 S.E.2d 885, 888 (1982)). Such a basis for a
claim of fraud is possible because "[f]raud is the concealment of the truth, just as
much as it is the utterance of a falsehood." Frazier v. Brewer, 52 W. Va.
306, 310, 43 S.E. 110, 111 (1902). See also Van Deusen v. Snead, 247 Va.
324, 328, 441 S.E.2d 207, 209 (1994) ("'[C]oncealment always involves deliberate
nondisclosure designed to prevent another from learning the truth. A . . .
party's willful nondisclosure of a material fact that he knows is unknown to the other
party may evince an intent to practice actual fraud.'" (quoting Spence v. Griffin,
236 Va. 21, 28, 372 S.E.2d 595, 598-99 (1988))).
In this vein, the Second Restatement of Torts recognizes a
cause of action for fraudulent concealment: "[Any person] . . . who by
concealment or other action intentionally prevents the other from acquiring material
information is subject to the same liability to the other, for pecuniary loss as though he
had stated the nonexistence of the matter that the other was thus prevented from
discovering." Restatement (Second) of Torts § 550 (1976). Explaining the types of
wrongful behavior contemplated by this section, Comment b to § 550 states that
fraudulent concealment may arise
when the defendant successfully prevents the plaintiff from making
an investigation that he would otherwise have made, and which, if made, would have
disclosed the facts; or when the defendant frustrates an investigation. . .
. Even a false denial of knowledge or information by one party to a transaction, who is in
possession of the facts, may subject him to liability as fully as if he had expressly
misstated the facts, if its effect upon the plaintiff is to lead him to believe that the
facts do not exist or cannot be discovered.
(Emphasis added). Thus, the active concealment of information from a party with the intent
to thwart that party's efforts to conduct an investigation, relating to such information,
constitutes actionable fraudulent concealment. Lock v. Schreppler, 426 A.2d 856,
860 (Del. Super. 1981) (recognizing cause of action for fraudulent concealment similar to
that provided by § 550: "For plaintiffs to recover damages for fraudulent
concealment, plaintiffs must demonstrate that defendant took some action affirmative in
nature designed or intended to prevent, and which does prevent, the discovery of facts
giving rise to the fraud claim, some artifice to prevent knowledge of the facts or some
representation intended to exclude suspicion and prevent inquiry." (citation
omitted)), superseded by statute as noted in Eastern Commercial Realty Corp. v. Fusco,
654 A.2d 833 (Del. Super. Ct. 1995).See footnote 34
34
In framing his cause of action for fraud, John also has alleged
that the defendants' fraudulent conduct constituted a civil conspiracy. The law of this
State recognizes a cause of action sounding in civil conspiracy. At its most fundamental
level, a "civil conspiracy" is "a combination to commit a tort." State
ex rel. Myers v. Wood, 154 W. Va. 431, 442, 175 S.E.2d 637, 645 (1970) (citing
15A C.J.S. Conspiracy § 1 (1967)). In Dixon v. American Indus. Leasing Co.,
162 W. Va. 832, 834, 253 S.E.2d 150, 152 (1979), we provided a more detailed
definition of this theory of liability:
[A] civil conspiracy is a combination of two or more persons by
concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in
itself unlawful, by unlawful means. The cause of action is not created by the conspiracy
but by the wrongful acts done by the defendants to the injury of the plaintiff.
(Citing 15A C.J.S. Conspiracy § 1(1) and 16 Am. Jur. 2d Conspiracy
§ 44). Given the tort-based liability of participants in a civil conspiracy, a plaintiff
can maintain such a claim provided he/she satisfies the enumerated standard: "In
order for civil conspiracy to be actionable it must be proved that the defendants have
committed some wrongful act or have committed a lawful act in an unlawful manner to the
injury of the plaintiff[.]" Syl. pt. 1, in part, Dixon v. American Indus. Leasing
Co., 162 W. Va. 832, 253 S.E.2d 150. See also Syl. pt. 7, Cook v.
Heck's Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986) (same). Cf. Syl. pt. 3,
West Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 40 S.E. 591
(1902) ("Where several combine and agree to do a lawful act, violative of no duty to
another due from them, it is not an unlawful conspiracy subjecting them to an action by
him, though the act injure him, and was so intended."); Syl. pt. 2, Porter v. Mack,
50 W. Va. 581, 40 S.E. 459 (1901) ("There can be no conspiracy to do that which
is lawful in a lawful manner.").
Additionally, individuals who have conspired with one another
to orchestrate and/or carry out a fraudulent plan or scheme can be held liable for
their conduct. See 37 Am. Jur. 2d Fraud and Deceit § 301, at 397 (1968)
(stating that "everyone who engages in a fraudulent scheme forfeits all right to
protection, either at law or in equity" (citing Densmore v. County Court, 106
W. Va. 317, 145 S.E. 641 (1928))); 37 Am. Jur. 2d Fraud and Deceit § 305, at 403
& 405 (1968) (noting that relief from fraud may be had only against those who were
"parties to the fraud," but explaining that "in order to establish
liability, any person or persons sought to be charged need not have benefited from the
transaction, have had any interest therein, or have colluded with the person
benefited"; recognizing further that "[o]ne who participates in a fraud is of
course guilty of fraud, and one who, with knowledge of the facts, assists another in the
perpetration of a fraud is equally guilty" (footnotes omitted) (citing Lincoln v.
Claflin, 74 U.S. 132, 7 Wall. 132, 19 L. Ed. 106 (1868))). See also Frazier
v. Brewer, 52 W. Va. at 310, 43 S.E. at 111 ("He who adopts the results
adopts also the means by which they are brought about.").
Having enunciated these general standards, which permit the
assignment of liability for fraudulent conduct or concealment, we now look to John's
specific cause of action: whether the defendants are liable to John for their alleged
fraudulent concealment of information in response to inquiries about the post-birth
whereabouts of his son. We observe that not only is this asserted cause of action novel to
the jurisprudence of this State, but it appears that the courts of no other states have
addressed directly whether such a claim may be maintained.
In some decisions, while a specific cause of action for fraud
has been asserted by a father against those who have allegedly deprived him of his child,
the courts have adeptly avoided a direct resolution of the validity of such a claim. For
example, in Daoud v. De Leau, 455 Mich. 181, 565 N.W.2d 639 (1997) (per curiam),
the biological father brought a cause of action against his child's biological mother and
the adoption agency claiming that they had fraudulently deprived him of a relationship
with his child by placing the infant for adoption, unbeknownst to the biological father.
The court, determining that the basis of the father's fraud claim was perjured testimony
presented during the adoption proceedings, declined to rule upon the validity of the
father's cause of action for fraud, finding instead that he sought relief from perjured
testimony, which relief was limited to that provided in the applicable rules governing
court proceedings in general. Id.
Similarly, the court in Larson v. Dunn, 449 N.W.2d 751
(Minn. App.), aff'd in part, rev'd in part, 460 N.W.2d 39 (Minn. 1990), though
squarely confronted with a father's claim of fraudulent concealment of his daughter's
whereabouts and information pertaining to her well-being, mechanically affirmed the trial
court's dismissal of this claim without explanation. Additionally, in McGrady v.
Rosenbaum, 62 Misc. 2d 182, 308 N.Y.S.2d 181 (1970), aff'd, 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971), the court found that the father did not have a redressable claim for
wrongful interference with his visitation rights where his ex-wife, the child's mother,
had been granted custody of the parties' child by a presumably valid court order. Because
he could not maintain his main cause of action for interference, the court likewise
determined that his fraud claims, based upon the manner in which the interference
allegedly had been perpetrated, also were without merit. Id. Accord Copeland
v. Delvaux, 89 Ohio App. 3d 1, 623 N.E.2d 569 (1993) (per curiam) (affirming lower
court's ruling, wherein court determined that applicable statute of limitations barred
unwed biological father's claim for fraudulent adoption).
Other decisions, though involving issues of fraud, have not had
a direct opportunity to resolve the issue of whether civil liability may be imposed upon
one fraudulently concealing information about a child from that child's parent. This line
of cases instead reviews whether the fraud alleged to have facilitated the procurement of
an adoption decree is such as to permit the adoption to be set aside. The court in In
the Matter of the Adoption of Baby Girl S., 141 Misc. 2d 905, 535 N.Y.S.2d 676 (1988),
aff'd, 150 A.D.2d 993, 543 N.Y.S.2d 602 (1989), dismissed the adoption petition after
finding that
[t]he record establishes that this [adoption] proceeding is
permeated with fraud and misrepresentation. Each of the parties [the mother, the
prospective adoptive parents, and the attorney representing both the mother and the
prospective adoptive parents], with the exception of [the unwed biological father], had an
agenda not revealed in the [adoption] papers and abused the judicial process to achieve
it.
Id., 141 Misc. 2d at ___, 535 N.Y.S.2d at 680. Nowhere in the opinion, though, did the
court indicate whether the father would have a separate cause of action against the
defendants for their fraudulent conduct.
In an analogous case, the court in Wade v. Geren, 743 P.2d 1070 (Okla. 1987), vacated an adoption decree based upon fraudulent representations
concerning the identity of the unwed biological father made by the child's maternal
grandparents, who sought her adoption. Accord Petition of Doe, 159 Ill. 2d 347,
351, 202 Ill. Dec. 535, ___, 638 N.E.2d 181, 182 (1994) (invalidating adoption and
commenting "the fault here lies initially with the mother, who fraudulently tried to
deprive the father of his rights, and secondly, with the adoptive parents and their
attorney, who proceeded with the adoption when they knew that a real father was out there
who had been denied knowledge of his baby's existence"); In re Adoption of Murphy,
53 Ohio App. 3d 14, 18, 557 N.E.2d 827, 832 (1988) (invalidating adoption proceeding
because "actionable fraud attended the placement and initial adoption
proceedings" of unwed biological father's child). Cf. Robert O. v. Russell
K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (declining to vacate
adoption, which unwed biological father claimed had been fraudulently obtained, because
record did not evince any attempts by unwed biological mother to deceptively conceal her
pregnancy from the child's father); In re Adoption of Hart, 62 Ohio App. 3d 544,
577 N.E.2d 77 (1989) (refusing to dismiss adoption petition as evidence did not indicate
that adoptive parents had fraudulently concealed from court identity of unwed biological
father).
Despite the lack of precedent recognizing a claim based in tort
and sounding in fraud in circumstances fairly analogous to those underlying the instant
appeal, this jurisprudential absence does not, alone, foreclose our recognition of such a
claim. "As previously stated, . . . a lack of precedent--standing alone--is
an insufficient reason to deny a cause of action." Farley v. Sartin, 195
W. Va. 671, 682, 466 S.E.2d 522, 533 (1995) (footnote omitted). Notwithstanding an
unwed biological father's responsibility to affirmatively protect his own rights, by
"grasping the opportunity" to demonstrate his commitment to assuming parental
responsibility for his child, we cannot condone the actions of the defendants in this case
who, by their conduct, wrongfully interfered with John's ability to establish and assert
his parental rights. Accordingly, we hold that the instant a child is born, both unwed
biological parents have a right to establish a parent- child relationship with their
child. To preserve his parental interest vis-a-vis his newborn child, an unwed biological
father must, upon learning of the existence of his child, demonstrate his commitment to
assume the responsibilities of parenthood by coming forward to participate in the care,
rearing, and support of his newborn child and by commencing to establish a meaningful
parent-child relationship with his child.See
footnote 35 35
Further, where a person has knowledge of information concerning
a newborn child's birth or physical location, or indicating where and in whose care the
child may be found, and the child's parentSee
footnote 36 36 inquires of such person regarding his/her child's birth or
physical location, and/or where and in whose care his/her child may be found, such person
may be held liable for fraudulently concealing information if he/she affirmatively,
intentionally, and willfully fails to provide such information to the child's parent
pursuant to his/her request for such information and such concealment unduly hinders or
otherwise irreparably harms the parent's ability to establish a parent-child relationship
with his/her child. Additionally, we hold that any person or persons who plot, plan,
scheme, or otherwise conspire to affirmatively, intentionally, and willfully conceal
information regarding a newborn child's birth or physical location, or indicating where
and in whose care the child may be found, in response to inquiries by the child's parent
for such information, may be held liable for his/her or their participation in such civil
conspiracy.See footnote 37 37
Finding that John does, in fact, have a cause of action against
the defendants for their alleged concealment of information regarding Baby Boy Conaty, we
must now ascertain whether the allegations in John's complaint were sufficient to state
such a claim. Typically, "[a] pleading which sets forth a claim for relief
. . . [must] contain (1) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (2) a demand for judgment for the relief to which
he deems himself entitled." W. Va. R. Civ. P. Rule 8(a). However, when a party
alleges that he/she has been injured by the fraud or fraudulent conduct of another,
"the circumstances constituting fraud . . . [must] be stated with
particularity." W. Va. R. Civ. P. Rule 9(b). See also Funeral Serv. by
Gregory, Inc. v. Bluefield Community Hosp., 186 W. Va. 424, 430, 413 S.E.2d 79,
85 (1991) (instructing that "in order to establish fraud, the circumstances must be
clearly alleged and proved"), overruled on other grounds by Courtney v.
Courtney, 190 W. Va. 126, 437 S.E.2d 436 (1993); Syl. pt. 1, in part, Hager v.
Exxon Corp., 161 W. Va. 278, 241 S.E.2d 920 (1978) ("[F]raud or mistake must
be alleged in the appropriate pleading with particularity[,] and the failure to do so
precludes the offer of proof thereof during the trial.").
The reason for this deviation from the general pleading
requirements when fraud is charged is both to allow the party alleged to have committed
fraud to defend such charges and to permit the tribunal hearing the matter to conduct a
full review of the complaining party's claims. Syl. pt. 4, in part, Croston v. Emax Oil
Co., 195 W. Va. 86, 464 S.E.2d 728 (1995) ("The failure to plead
particularly the circumstances constituting fraud not only inhibits full review of the
substance of the claim of fraud by this Court on appeal . . .; such failure also
precludes the introduction of evidence supportive of any general allegation of fraud
contained in the complaint[.]").
Nevertheless, the requirement that fraud be "stated with
particularity" does not automatically render a complaint fatally flawed if the magic
word "fraud" has not been invoked. While certainly the better practice when
stating a cause of action for fraud is to include the word "fraud" in the
complaint, thereby ensuring that both the defendant and the court are aware of the claim
asserted, the complaint generally will be deemed sufficient so long as a cause of action
for fraud may be discerned from the allegations contained therein.
Fraud may be well pleaded even though the
conduct referred to is not alleged expressly to be "fraudulent," provided that
the facts alleged are such as constitute fraud in themselves, or are facts from which
fraud will be necessarily implied. The acts charged are not less fraudulent because the
word "fraud" or "fraudulent" is not employed by the pleader in
characterizing them. In other words, an allegation of facts from which the conclusion of
fraud necessarily results is sufficient.
37 Am. Jur. 2d Fraud and Deceit § 424, at 577-78 (1968) (footnotes omitted).
Reviewing the complaint filed by John in the circuit court, we
initially note that the use of the word "fraud" or "fraudulent" to
describe the conduct complained of would have been preferable. Nevertheless, we conclude
that the complaint's allegations set forth sufficient facts from which a jury could have
found fraudulent conduct to have been committed by the defendants. Thus, we find that the
averments charging that the defendants intentionally, purposefully, and maliciously
prevented John from obtaining any pertinent information regarding Baby Boy Conaty's birth
or subsequent pre-adoptive placement and that they continued a scheme to impair and
frustrate his efforts to ascertain the whereabouts of his son sufficiently stated a cause
of action for fraud. Accordingly, we find that the circuit court did not err in upholding
John's claim.See footnote 38 38
2. Tortious Interference with Parental Relationship
The defendants next contest the sufficiency of John's claim
alleging that they tortiously interfered with his parental relationship with Baby Boy
Conaty. They urge that the circuit court erred in concluding that John's complaint
sufficiently stated grounds for relief on this theory because the court misstated the
applicable law. Acknowledging John's purported reliance on the language of Section 700 of
the Second Restatement of Torts,See footnote 39 39 the defendants entreat this Court to follow the decisions of the minority
of jurisdictions, which have refused to recognize a claim for tortious interference with
parental relationship based upon their determinations that such tort-based recovery would
be detrimental to the best interests of the children involved at the center of these
controversies. Citing Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 98
Ill. Dec. 621, 494 N.E.2d 743 (1986); Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990); Zaharias
v. Gammill, 844 P.2d 137 (Okla. 1992); Cosner v. Ridinger, 882 P.2d 1243 (Wyo.
1994).
If, however, this Court should recognize a cause of action for
tortious interference with parental relationship, the defendants assert that the
definition of this tort contained in Section 700 does not apply to the facts of this case.
Further, they submit that John has failed to state a cause of action for tortious
interference because he is unable to satisfy two elements required of such a claim. First,
the defendants represent that this tort is available only to those individuals who are
custodial parents and thereby entitled to their child's sole legal custody. As John was
not, and never has been, the custodial parent of Baby Boy Conaty, he is not entitled to
seek recovery under this theory. Second, Section 700, as it is written, provides relief
from damages occasioned by the abduction or compelled removal of a child from his/her
parent who is entitled to his/her legal custody. Again, the defendants indicate that the
facts underlying this appeal do not support John's claim as there is no indication either
that John was entitled to his son's custody or that Baby Boy Conaty was abducted from, or
compelled to leave, John. Finally, the defendants dispute John's ability to maintain this
cause of action where both he and Anne had equal custodial rights vis-a-vis Baby Boy
Conaty.See footnote 40 40
John replies that he has stated a valid claim upon which to
obtain relief from the defendants' alleged tortious interference with his parental
relationship with Baby Boy Conaty. Although this cause is novel to the jurisprudence of
this State, a majority of jurisdictions throughout the country have recognized such a
claim. Citing, e.g., Hinton v. Hinton, 436 F.2d 211, 141 U.S. App. D.C. 57
(D.C. Cir. 1970), aff'd, 492 F.2d 669, 160 U.S. App. D.C. 403 (D.C. Cir. 1974); Kunz
v. Deitch, 660 F. Supp. 679 (N.D. Ill. 1987); Lloyd v. Loeffler, 539
F. Supp. 998 (E.D. Wis. 1982), aff'd, 694 F.2d 489 (7th Cir. 1982); D &
D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo. 1989); Plante v. Engel,
124 N.H. 213, 469 A.2d 1299 (1983); Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959). In urging this Court to adopt this cause of action, John suggests that
such a claim is consistent with the existing law of this State, which recognizes the
preeminence of a parent's right to the custody of his/her child, provided the parent is
not unfit and has not waived, abandoned, transferred, or otherwise relinquished his/her
custodial rights. Citing Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975). John further supports his position by proposing that, regardless of any
decisional rights enjoyed by Anne, "[o]nce the baby is born[, both] the baby and the
father have rights."
Additionally, while John concedes that the facts of this case
do not fit neatly into the definition of "tortious interference" contained in
Section 700, he nevertheless asks this Court to recognize his claim, stating that the lack
of precedent does not automatically foreclose the recognition of a cause of action to
remedy the wrong that has been done. Citing Rosefield v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1963). Finally, responding to the defendants' arguments
that he has not satisfied all of the requisite elements to prosecute this cause of action,
John asserts that he has, in fact, met these requirements. First, John indicates that
there is no requirement that he have a judicial decree awarding him sole legal custody of
Baby Boy Conaty in order to maintain his claim. Citing Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479. Second, John disputes the defendants' charge that Baby Boy
Conaty was not abducted from, or otherwise compelled to leave, John. In this regard, John
states that the defendants orchestrated a scheme to prevent him from establishing a
relationship with his infant son and, given his son's tender age of two days, effectively
compelled the child to leave his father through their pre- adoptive placement of the boy
into Canada. Lastly, John suggests that, despite the defendants' contrary view, he is
permitted to assert a claim for tortious interference even though both he and Anne
theoretically had equal rights to their son's custody. Under the facts of this case, John
represents that he and Anne, realistically, did not have equal parental rights because
Anne effectively prevented him from establishing and asserting his rights, thus elevating
her own rights above his. Therefore, because the parties actually had unequal rights, as a
result of the defendants' conduct, John should be permitted to maintain his claim. Citing
Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479.
The cause of action asserted by John, that of tortious
interference with parental relationship, is a matter of first impression before this
Court. Nevertheless, the recognition of this cause of action appears to be the standard
adopted by a majority of other jurisdictions' courts that have been faced with this issue.See footnote 41 41 In order to
determine whether this Court should follow the lead initiated by our sister jurisdictions,
it is necessary for us first to understand the nature of this proffered claim and then to
ascertain whether our existing law would impede our embracement of this cause.
Section 700 of the Restatement (Second) of Torts articulates
the elements of a claim for "tortious interference with parental or custodial[See footnote 42 42 ]
relationship".See footnote 43 43 Pursuant
to the Restatement, "Causing [a] Minor Child to Leave or not to Return Home[,]"
"[o]ne who, with knowledge that the parent does not consent, abducts or otherwise
compels or induces a minor child to leave a parent legally entitled to its custody or not
to return to the parent after it has been left him, is subject to liability to the
parent." Restatement (Second) of Torts § 700 (1976).See footnote 44 44
This Section permits a cause of action to be maintained both when the child has been forcibly abducted from his/her parent's custody and when he/she is prevented from returning to his/her parent's custody.
Under the rule stated in this Section, an action may be
maintained by the parent who is entitled to the custody of a minor child against one who
by force abducts the child from its home, or one who induces the child to leave its home
with knowledge that the parent has not consented. . . . So, too, the action
can be maintained against one who, with knowledge that the child is away from home against
the will of the parent, imprisons it or induces the child . . . not to return
home.
Restatement (Second) of Torts § 700 cmt. a (1976). However, under either the
removal or retention theories, "[t]o become liable under the rule stated in this
Section for inducing a child not to return home, it is necessary that the actor know that
the child is away from home against the will of the parent." Restatement (Second) of
Torts § 700 cmt. b.
Governing all claims for tortious interference with a parental
or custodial relationship, though, is the underlying custodial or parental rights of the
parties involved. Thus, [w]hen the parents are by law jointly entitled to the
custody and earnings of the child, no action can be brought against one of the parents who
abducts or induces the child to leave the other. . . . One parent may be
liable to the other parent for the abduction of his own child if by judicial decree the
sole custody of the child has been awarded to the other parent. Restatement (Second) of
Torts § 700 cmt. c.
Refining, clarifying, and adopting this tort, various
jurisdictions have established precise tests to be used in determining whether one has
tortiously interfered with another's parental or custodial rights and have explained the
rationale underlying their decisions to recognize this cause of action. For example, the
Supreme Court of Alabama, in reviewing a claim by the plaintiff parents charging that a
male juvenile and his parents had assisted the plaintiff's minor daughter in running away
from home and had concealed her whereabouts from the plaintiffs, recognized that
Section 700 does not create a new cause of action unknown to the
common law. [Rather, i]t accurately reflects the common law principle that "parents
have a right to the care, custody, services and companionship of their minor children, and
[that] when they are wrongfully deprived thereof by another, they have an action
therefor."
Anonymous v. Anonymous, 672 So. 2d 787, 789 (Ala. 1995) (quoting Steward v.
Gold Medal Shows, 244 Ala. 583, 586, 14 So. 2d 549, 552 (1943)) (additional citation
omitted). The court then proceeded to clarify the requisite elements for a claim of
tortious interference:
To state a claim of intentional or malicious custodial
interference, a [parent] need only plead facts tending to show:
"(1)
[S]ome active or affirmative effort by [the] defendant to detract the child from the
parent's custody or service, (2) [that] the enticing or harboring [was] willful, [and] (3)
[that the enticing or harboring was done] with notice or knowledge that the child had a
parent whose rights were thereby invaded."
Id., 672 So. 2d at 790 (quoting 67A C.J.S. Parent & Child § 131, at p.
513 (1978)) (additional citation omitted). See also Marshak v. Marshak, 226
Conn. 652, 628 A.2d 964
(1993) (refusing to allow mother's claim for tortious interference with custodial
relationship, where mother and father had joint legal custody of children at time of
alleged interference, based upon Restatement (Second) of Torts § 700 cmt. c
(1976)); Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 571 N.E.2d 340
(1991) (emphasizing importance of lack of parent's consent to child's absence from
parent's home and enumerating criteria for jury to consider in this regard); Kipper v.
Vokolek, 546 S.W.2d 521, 525-26 (Mo. App. 1977) (discussing particular elements
comprising tort claim for interference with parental or custodial relationship).
In a somewhat different case, the California District Court of
Appeal reviewed the rationale for permitting a cause of action for tortious interference
with parental or custodial relationship in enunciating the appropriate context for such a
claim. Rosefield v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1963). The
case arose in the context of divorce proceedings. Since the date of separation, the mother
had had custody of the parties' child. During the pendency of the proceedings and shortly
before custody was to be awarded to the mother, the father, with the help of his father
(the paternal grandfather), took the child from the mother and concealed his whereabouts
from her. At the time the appellate court heard this case, the father and child had not
yet been located.
Reviewing the mother's claim of tortious interference against
the paternal grandfather,See footnote 45 45
the Rosefield Court noted that "[t]he actions of the third party
[grandfather], as alleged, did not simply help the father to gain custody of the child, as
from a stranger, but effectively deprived the mother of a right, elemental and of value
inestimable, which she, too, had." 221 Cal. App. 2d at 433, 34 Cal. Rptr. at 481.
Though declining to definitively rule as to the propriety of the claim asserted against
the father, the Court did find, given the circumstances, that the father's actions
impermissibly infringed upon the mother's parental and custodial rights.
We believe that it was a legal wrong for
the husband and father to abscond with the child, and that respondent [grandfather] would
be liable in damages even for the father's actions, if conspiracy were shown. Of course,
not every transportation of a child by one parent causing the other parent some loss of
custody and association with the child would be wrongful. If, however, one parent makes
away with the offspring, removes it effectually from judicial control, conceals it, and
leaves the other parent utterly bereft of the means of enjoying any of the privileges of
parenthood, it is folly to say that the decamping parent is merely exercising his
"equal right" to the custody of the child. There is no equality about it.
Id., 221 Cal. App. 2d at 435, 34 Cal. Rptr. at 482.
Similarly, the court in Plante v. Engel, focused upon the rationale supporting
its adoption of a cause of action for tortious interference with parental or custodial
relationship. 124 N.H. 213, 469 A.2d 1299 (1983). In Plante, the mother and father
had commenced an action for divorce. In conjunction with these proceedings, the father was
awarded custody of the parties' child. The mother thereafter, in violation of the custody
order and without telling the father, took the parties' child with her when she moved to
Texas. Upholding the father's claim against the maternal grandparents for interfering with
his right to the custody of his child, the Supreme Court of New Hampshire based its
decision, in large part, on the deep respect accorded a parent's right to the custody of
his/her child.
The high place accorded filiation stems not from the material bond
whereby services are provided to each other by parent and child but from recognition that
there is a sanctity in the union of parent and child that transcends economics and
deserves the utmost respect. Because this relationship is so intimately connected with the
parent's person, we hold that where there is an intentional interference with a parent's
custody of his or her child, an injured parent is entitled to a remedy that completely
compensates him or her.
Id., 469 A.2d at 1301-02 (citations omitted).
Unlike the jurisdictions referenced above, this State has not
previously recognized the tort of interference with a parental or custodial relationship.
However, the law of West Virginia has explicitly adopted interference torts in other
contexts. For example, in Syllabus point 2 of Barone v. Barone, 170 W. Va.
407, 294 S.E.2d 260 (1982), we held that "[a]n intended beneficiary may sue for
tortious interference with a testamentary bequest."
In addition, we very recently reiterated the standard
enunciated for the tort of interference with an employment relationship that originally
was announced in Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co.,
173 W. Va. 210, 314 S.E.2d 166 (1983):
"To establish prima facie proof of
tortious interference, a plaintiff must show:
(1) existence of a contractual or business
relationship or expectancy;
(2) an intentional act of interference by
a party outside that relationship or expectancy;
(3) proof that the interference caused the
harm sustained; and
(4) damages.
"If a plaintiff makes a prima
facie case, a defendant may prove justification or privilege, affirmative defenses.
Defendants are not liable for interference that is negligent rather than intentional, or
if they show defenses of legitimate competition between plaintiff and themselves, their
financial interest in the induced party's business, their responsibility for another's
welfare, their intention to influence another's business policies in which they have an
interest, their giving of honest, truthful requested advice, or other factors that show
the interference was proper."
Tiernan v. Charleston Area Medical Center, ___ W. Va. ___, ___, ___ S.E.2d
___, ___, slip op. at 29-30 (No. 24434 May 21, 1998) (quoting Syl. pt. 2, Torbett,
173 W. Va. 210, 314 S.E.2d 166).
Finally, in Thacker Coal & Coke Co. v. Burke, 59
W. Va. 253, 254, 53 S.E. 161, 162 (1906), we permitted an injured party to recover
damages for tortious interference with a contractual relationship: "[i]f one wantonly
and maliciously, whether for his own benefit or not, induces a person to violate his
contract with a third person to the injury of that third person, it is actionable."
(Internal quotations and citation omitted). But cf. Syl. pt. 1, Shrewsbery v.
National Grange Mut. Ins. Co., 183 W. Va. 322, 395 S.E.2d 745 (1990) ("It is
impossible for one party to a contract to maintain against the other party to the contract
a claim for tortious interference with the parties' own contract; each party has agreed to
be bound by the terms of the contract itself, and may not thereafter use a tort action to
punish the other party for actions that are within its rights under the contract.").
This brief survey suggests that the recognition of interference torts is not novel to the
jurisprudence of this State. Thus, it may be said that the acceptance of a cause of action
for tortious interference with parental or custodial relationship would simply be a
logical progression of this jurisdiction's pre-existing tortious interference law.
Moreover, the Legislature of this State officially has
codified, as a criminal offense, interference with a legal guardian's custody of a minor
child. W. Va. Code § 61- 2-14d (1984) (Repl. Vol. 1997) specifically recognizes as a
crime in this State the "[c]oncealment or removal of [a] minor child from [his/her]
custodian or from [a] person entitled to visitation":
(a) Any person who conceals, takes or
removes a minor child in violation of any court order and with the intent to deprive
another person of lawful custody or visitation rights shall be guilty of a felony, and,
upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor
more than five years, or in the discretion of the court, shall be imprisoned in the county
jail not more than one year or fined not more than one thousand dollars, or both fined and
imprisoned.
(b) Any person who violates this
section and in so doing removes the minor child from this State or conceals the minor
child in another state shall be guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than one nor more than five years or fined not
more than one thousand dollars, or both fined and imprisoned.
(c) It shall be a defense under this
section that the accused reasonably believed such action was necessary to preserve the
welfare of the minor child. The mere failure to return a minor child at the expiration of
any lawful custody or visitation period without the intent to deprive another person of
lawful custody or visitation rights shall not constitute an offense under this section.
In addition, anyone who "aid[s] or abet[s]" in an offense of custodial
interference, as defined by W. Va. Code § 61-2-14d, is also criminally liable:
If any person in any way knowingly aid or
abet any other person in the commission of any offense described in section fourteen,
fourteen-a, fourteen-c or fourteen-d [§ 61-2- 14, § 61-2-14a, § 61-2-14c, or §
61-2-14d] of this article, either as accessory before or an accessory after the fact, such
person so aiding and abetting shall be guilty as a principal in the commission of such
offense and shall be punished in the same manner and to the same extent as is provided in
said sections for the person who committed the offense.
W. Va. Code § 61-2-14e, in part, (1984) (Repl. Vol. 1997).
At least one state has based its adoption of the tort of
interference with parental or custodial relationships, in part, upon the fact that it,
too, had criminalized custodial interference. In D & D Fuller CATV Construction,
Inc. v. Pace, 780 P.2d 520 (Colo. 1989) (en banc), the Supreme Court of Colorado noted
that that state recognized the crime of custodial interference. See Colo. Rev.
Stat. § 18-3-304 (1986). The Court then reasoned:
Based on the fact that it is a crime in this state to take a child
from his or her lawful custodian and to deprive the lawful custodian of custody of a
child, we recognize the tort of interference with the parent-child relationship set forth
in Restatement (Second) of Torts § 700 (197[6]).
780 P.2d at 524. See also Spencer v. Terebelo, 373 So. 2d 200, 202 (La. App.
1979) (concluding that penal statute prohibiting criminal custodial interference, La. Rev.
Stat. § 14:45 (1966), "forms the basis of the legal duty owed by" the offending
parent to the complaining parent); Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986)
(recognizing tort cause of action for custodial interference, in part, based upon existing
criminal offense of interference with child custody (citing Tex. Penal Code Ann. § 25.03
(Vernon 1974))). But see Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 98
Ill. Dec. 621, 494 N.E.2d 743
(1986) (deferring to Legislature imposition of civil penalties for custodial
interference because Legislature already had established criminal penalties for such an
offense (citing Ill. Rev. Stat. ch. 38, paras. 10-5, 10-6 (1985))); Larson v. Dunn,
460 N.W.2d 39 (Minn. 1990) (rejecting tort of parental or custodial interference partially
because of Legislature's provision of criminal penalties, in Minn. Stat. § 609.26 (1986),
for abduction of children from custodial parent); Zaharias v. Gammill, 844 P.2d 137
(Okla. 1992) (declining to adopt tort of custodial interference, in part, because of
existing criminal penalties applicable to persons abducting minor children (citing 21
Okla. Stat. § 1119 (1991))). Cf. Rosefield v. Rosefield, 221 Cal. App. 2d 431, 433, 34 Cal. Rptr. 479, 481 (1963) (noting that Cal. Civil Code § 49 (1939)
"forbids the abduction of a child from a parent" and acknowledging that third
persons violating this section and/or committing tortious interference can be held liable
to the complaining parent for damages arising from the interference).
Furthermore, we have a long-standing tradition of respecting
the rights of parents to the custody of their children. See, e.g., Syl. pt. 3, in
part, State ex rel. Harmon v. Utterback, 144 W. Va. 419, 108 S.E.2d 521 (1959)
("The right of a parent to the custody of his or her child, being founded in nature
and wisdom and recognized and declared by statute, will be respected unless such right is
transferred, relinquished or abandoned[.]"), overruled on other grounds by
Syl. pt. 3, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996); Syl.
pt. 4, State ex rel. Neider v. Reuff, 29 W. Va. 751, 2 S.E. 801 (1887)
("The right of the father or mother to the custody of their minor child, is not an
absolute right, to be accorded to them under all circumstances, for it may be denied to
either of them, if it appears to the court, that the parent otherwise entitled to this
right, 'is unfit for the trust.'").See
footnote 46 46 In this regard we have declared that
[i]n the law concerning custody of minor
children, no rule is more firmly established than that the right of a natural parent to
the custody of his or her infant child is paramount to that of any other person; it is a
fundamental personal liberty protected and guaranteed by the Due Process Clauses of the
West Virginia and United States Constitutions.
Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). We also have
articulated that
"[a] parent has the natural right to
the custody of his or her infant child and, unless the parent is an unfit person because
of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has
waived such right, or by agreement or otherwise has permanently transferred, relinquished
or surrendered such custody, the right of the parent to the custody of his or her infant
child will be recognized and enforced by the courts." Syllabus, State ex rel.
Kiger v. Hancock, 153 W. Va. 404[,] 168 S.E.2d [798] (1969).
Syl. pt. 2, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975).
Identifying the preeminence of a parent's right to enjoy a
parental or custodial relationship with his/her child, various jurisdictions have
attempted to further protect this right by permitting the recovery of damages when one
tortiously interferes with such a relationship. See, e.g., Anonymous v.
Anonymous, 672 So. 2d 787 (Ala. 1995) (noting that Restatement § 700 reflects common
law view that parents have right to custody of their children); Murphy v. I.S.K. Con.
of New England, Inc., 409 Mass. 842, 571 N.E.2d 340 (discussing parent's interest in
parental and custodial relationship with his/her child in context of common law cause of
action for interference with such relationship); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983) (permitting recovery of damages for intentional interference with
parent's custodial relationship with his/her child based upon highly regarded right of
parent to custody of his/her child); Bedard v. Notre Dame Hospital, 89 R.I. 195,
151 A.2d 690 (1959) (basing right to recovery in tort upon parent's legally protected
right to custody of his/her child founded in common law and statutory enactments).
Based upon the prior recognition of other tortious interference
claims by this Court, our criminal statutes providing penal remedies for unlawful
custodial interference, and the high esteem with which we regard the rights of parents to
maintain relationships with their children, we find that it is proper to recognize, as a
valid cause of action, the claim of tortious interference as asserted by John.
Accordingly, we hold that a parentSee footnote 47 47 may maintain a cause of action against one who tortiously interferes with
the parent's parental or custodial relationship with his/her minor child, which right
accrues the instant the child is born.
We additionally hold, consistent with our prior holding in
Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co., 173
W. Va. 210, 314 S.E.2d 166 (1983), that to make out a prima facie claim for
tortious interference with parental or custodial relationship, the complaining parent must
demonstrate: (1) the complaining parent has a right to establish or maintain a parental or
custodial relationship with his/her minor child; (2) a party outside of the relationship
between the complaining parent and his/her child intentionally interfered with the
complaining parent's parental or custodial relationship with his/her child by removing or
detaining the child from returning to the complaining parent, without that parent's
consent, or by otherwise preventing the complaining parent from exercising his/her
parental or custodial rights; (3) the outside party's intentional interference caused harm
to the complaining parent's parental or custodial relationship with his/her child; and (4)
damages resulted from such interference.
Further, we hold that where a parent presents a prima facie case of tortious interference with his/her parental or custodial relationship, the party interfering with such relationship may assert the affirmative defense of justification, i.e., the party possessed a reasonable, good faith belief that interference with the parent's parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm, as contemplated by W. Va. Code § 49-1-3 (1994) (Repl. Vol. 1996). A party also cannot be held liable for tortious interference with a parental or custodial relationship if he/she acted negligently, rather than intentionally; possessed a reasonable, good faith belief that the interference was proper (i.e., no notice or knowledge of an original or superseding judicial decree awarding parental or custodial rights to complaining parent); or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child (i.e., mistake as to identity of child's biological parents where paternity has not yet been formally established).See footnote 48 48
Lastly, we hold that a parent cannot charge his/her child's other
parent with tortious interference with parental or custodial relationship if both parents
have equal rights, or substantially equal rights (as in the case of a nonmarital child
where the putative biological father seeks to establish a meaningful parent-child
relationship with his child and, until such a relationship has been commenced, does not
have rights identical to those of the child's biological mother), to establish or maintain
a parental or custodial relationship with their child. In other words, when no judicial
award of custody has been made to either parent, thereby causing the parents' parental and
custodial rights to be equal, no cause of action for tortious interference can be
maintained by one parent against the other parent. Likewise, where no judicial decree has
been entered awarding custody of a nonmarital child to one or the other of the child's
biological parents, the complaining biological parent cannot assert a claim of tortious
interference with parental or custodial relationship against the other biological parent.See footnote 49 49
Having established that John may properly assert a claim for
tortious interference with his parental relationship with Baby Boy Conaty, we must now
ascertain whether his complaint sufficiently stated this cause of action.See footnote 50 50 As we iterated in
the preceding section, generally "[a] pleading which sets forth a claim for relief
. . . [must] contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief." W. Va. R. Civ. P. Rule 8(a), in
part. In this manner, while allegations of "fraud or mistake shall be stated with
particularity[; m]alice, intent, knowledge, and other condition of mind of a person may be
averred generally." W. Va. R. Civ. P. Rule 9(b), in part. Moreover, in order to
withstand a challenge that the complaint fails to state a claim upon which relief may be
granted, the complaint must indicate that "the plaintiff can prove . . .
facts in support of his claim which would entitle him to relief." Syl., in part, John
W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d 157
(1978) (internal quotations and citations omitted). During the proceedings below, the
circuit court determined that John's complaint properly stated a claim for tortious
interference.
Given our review of the pertinent authority and our holding stated
above, we find that the circuit court erred in permitting John to maintain his tortious
interference claim against Anne. As expressed in the comments to Restatement § 700 and
echoed in our decision, when both parents are equally, or substantially equally, entitled
to establish or maintain a parental or custodial relationship with their child, neither
of them can maintain a cause of action against the other for tortious interference with
that relationship.
The circumstances underlying this case suggest that John and
Anne had substantially equal rights vis-a-vis Baby Boy Conaty. Anne, as the biological
mother of the child, had an undisputed right to maintain a custodial relationship with her
son. John, as the putative biological father, had a right to establish a parental
relationship with his son in order to acquire parental rights sufficient to enable him to
subsequently assert his right to custody of the boy. At no time did either parent obtain
superior parental or custodial rights as no court order was ever entered granting either
John or Anne exclusive custody of their son. Because both Anne and John had substantially
equal rights to have a parental or custodial relationship with Baby Boy Conaty, John could
not assert a claim for tortious interference against Anne. In fact, the prosecution of
such a claim between parents with co-equal rights effectively permits one parent to
elevate his/her parental or custodial rights above those of the other parent rather than
leaving such a determination to the judiciary equipped to resolve such custodial disputes.
See, e.g., Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981)
(defining factors to be considered by court in determining custody of child). Therefore,
we find that the circuit court erred in permitting John to assert against Anne a claim of
tortious interference with his parental rights. However, as we explain below, our decision
in this regard does not necessitate the reversal of the jury's verdict.
By contrast, John can state a claim for tortious interference
against the remaining defendants, Dr. and Mrs. Conaty and Brian. As our holding indicates,
a parent who has been deprived of his/her parental or custodial relationship with his/her
child generally is not prevented from asserting such a claim against other nonparental
relatives of his/her child. Instead, it appears that these types of tortious interference
claims are quite often asserted against the child's grandparents, aunts, and uncles who
have participated in the removal or retention of the child from the complaining parent.See footnote 51 51 Thus, John is not
precluded from prosecuting his tortious interference claim against the remaining
defendants.
Turning now to the sufficiency of John's complaint, we find
that he adequately stated a claim against defendants Brian and Dr. and Mrs. Conaty for
tortious interference with his parental or custodial relationship with Baby Boy Conaty.
Allegations that the defendants "knowingly, willfully, intentionally and wrongfully
conspired to hide [John's] child from him and to place the child for adoption, for the
purpose of depriving [John] of the right to parenthood" and that "[t]he
defendants' acts were done knowingly, intentionally, maliciously and with the specific
intention to deprive [John] of his right to parenthood and the love, comfort, society and
companionship of his child," sufficiently apprised these defendants that John was
complaining of their alleged interference with his parental relationship with Baby Boy
Conaty.
In our decision of this issue, we have determined that John
could not state a claim against Anne for tortious interference with his parental
relationship with their child. We also have decided that his claims against defendants
Brian and Dr. and Mrs. Conaty for tortious interference were properly advanced. Despite
Anne's inability to be liable under this theory of recovery and our establishment of
defenses thereto more numerous than those upon which the circuit court instructed the
jury, see supra note 48, we consider moot any further discussion of this matter. At
trial, John asserted two alternative theories of wrongdoing by the defendants: fraud and
tortious interference. Despite the jury's determination that all of the defendants were
liable to John under both theories, John is nevertheless limited to a singular recovery.
Since we have found John's claims of fraud against the defendants to have been properly
stated and maintained, he may base his recovery on this theory. See Board of
Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597,
608, 390 S.E.2d 796, 807 (1990) ("'It is generally recognized that there can be only
one recovery of damages for one wrong or injury. Double recovery of damages is not
permitted; the law does not permit a double satisfaction for a single injury. A plaintiff
may not recover damages twice for the same injury simply because he has two legal
theories.'" (quoting Syl. pt. 7, Harless v. First Nat'l Bank in Fairmont, 169
W. Va. 673, 289 S.E.2d 692 (1982)) (additional citations omitted)); Syl. pt. 1, in
part, Thornton v. Charleston Area Medical Ctr., 158 W. Va. 504, 213 S.E.2d 102
(1975) ("At common law, an injured party may have only one full recovery
. . . ."). Cf. Syl. pt. 6, Orr v. Crowder, 173
W. Va. 335, 315 S.E.2d 593 (1983) ("Where a jury returns a general verdict in a
case involving two or more liability issues and its verdict is supported by evidence on at
least one issue, the verdict will not be reversed, unless the defendant has requested and
been refused the right to have the jury make special findings as to his liability on each
of the issues."). Accordingly, we need not address further the defendants' liability
for tortiously interfering with John's parental relationship with his son, and we do not
disturb that portion of the circuit court's order.See
footnote 52 52
C.
Jury Instructions
We next are asked to determine whether the trial court's decision
to grant and to refuse certain jury instructions was proper in this case. First and
foremost, we emphasize that, "[a]s a general rule, objections to a trial judge's
charge must be clear and explicit enough to tell the trial judge what the parties want
done to correct the alleged error." Skaggs v. Elk Run Coal Co., Inc., 198
W. Va. 51, 70, 479 S.E.2d 561, 580 (1996). This requirement of a "clear and
explicit" objection is echoed by Rule 51 of the West Virginia Rules of Civil
Procedure, which provides, in pertinent part: "[n]o party may assign as error the
giving or the refusal to give an instruction unless he objects thereto before the
arguments to the jury are begun, stating distinctly, as to any given instruction, the
matter to which he objects and the grounds of his objection[.]"
Once a party's challenge to an objectionable jury instruction is
properly before this Court, we conduct a more thorough inquiry to ascertain the degree of
prejudice, if any, suffered by the objecting party. In Syllabus point 4 of State v.
Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), we enunciated an abuse of
discretion standard to review such challenges:
A trial court's instructions to the jury
must be a correct statement of the law and supported by the evidence. Jury instructions
are reviewed by determining whether the charge, reviewed as a whole, sufficiently
instructed the jury so they understood the issues involved and were not mislead [sic] by
the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction
is looked at when determining its accuracy. A trial court, therefore, has broad discretion
in formulating its charge to the jury, so long as the charge accurately reflects the law.
Deference is given to a trial court's discretion concerning the specific wording of the
instruction, and the precise extent and character of any specific instruction will be
reviewed only for an abuse of discretion.
See also Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194
W. Va. 97, 459 S.E.2d 374 (1995) ("The formulation of jury instructions is
within the broad discretion of a circuit court, and a circuit court's giving of an
instruction is reviewed under an abuse of discretion standard. A verdict should not be
disturbed based on the formulation of the language of the jury instructions so long as the
instructions given as a whole are accurate and fair to both parties."); Syl. pt. 2, Roberts
v. Stevens Clinic Hosp., Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)
("'Instructions must be read as a whole, and if, when so read, it is apparent they
could not have misled the jury, the verdict will not be disturbed, through [sic] one of
said instructions which is not a binding instruction may have been susceptible of a
doubtful construction while standing alone.' Syl. Pt. 3, Lambert v. Great Atlantic
& Pacific Tea Company[,Inc.], 155 W. Va. 397, 184 S.E.2d 118
(1971)."). Pursuant to this deferential approach, "[w]e will reverse only if the
instructions are incorrect as a matter of law or capable of confusing and thereby
misleading the jury." Guthrie, 194 W. Va. at 672, 461 S.E.2d at 178.
Accordingly, where the party challenging the giving of a jury instruction properly
objected to the instruction during the trial court proceedings, and where we determine,
upon a review of the trial court's decision to grant the challenged instruction, that the
trial court did not abuse its discretion in permitting the instruction, the inquiry ends
here, and the party's objection to the challenged instruction must fail.
Where, however, the error complained of involves a trial
court's refusal to give a particular requested instruction, we "will . . .
presume[] that [the] trial court acted correctly . . . unless it appears from
the record in the case . . . that the instructions refused were correct and
should have been given." Coleman v. Sopher, ___ W. Va. ___, ___, ___
S.E.2d ___, ___, slip op. at 28 (No. 23943 Nov. 20, 1997) (internal quotations and
citations omitted). "As a general rule, the refusal to give a requested instruction
is reviewed for an abuse of discretion." Syl. pt. 1, in part, State v. Hinkle,
200 W. Va. 280, 489 S.E.2d 257 (1996).
If we observe that the complaining party objected to the
instruction at trial but the trial court abused its discretion in granting the
instruction, we proceed to a harmless error analysis. "Harmless error", as
described by Rule 61 of the West Virginia Rules of Civil Procedure, contemplates that:
no error or defect in any ruling . . . or in anything
done . . . by the court . . . is ground [sic] for granting a new trial
or for setting aside a verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the substantial rights of the
parties.
Similarly, in Skaggs, 198 W. Va. at 70-71, 479 S.E.2d at 580-81, we
"direct[ed] reviewing judges to inquire, when determining whether an alleged error is
harmless, whether they are in 'grave doubt about the likely effect of an error on the
jury's verdict,' O'Neal [v. McAninch], 513 U.S. [432,] 435, 115 S. Ct.
[992,] 994, 130 L. Ed. 2d [947,] 951 [(1995)]; if a court does have grave doubt,
then the error is harmful." Thus, if the contested instruction does not affect the
complaining party's substantial rights, any alleged error is harmless, and the challenge
to the trial court's jury instruction must fail. See Tennant, 194 W. Va. at
111, 459 S.E.2d at 388 ("Under West Virginia law, when substantial rights are not
affected, reversal is not appropriate. A party is entitled to a new trial only if there is
a reasonable probability that the jury's verdict was affected or influenced by trial
error."). By contrast, if the contested instruction affects the substantial rights of
the party opposing the instruction, or if the reviewing court has "grave doubt"
about the prejudicial effect of the challenged instruction on the jury's verdict, the
trial court's decision to give the instruction constitutes reversible harmful error. Cf.
Syl. pt. 5, Wheeler v. Murphy, 192 W. Va. 325, 452 S.E.2d 416 (1994)
("'"An erroneous instruction is presumed to be prejudicial and warrants a new
trial unless it appears that the complaining party was not prejudiced by such
instruction." [Citations omitted.]' Syllabus Point 6, Ratlief v. Yokum, 167
W. Va. 779, 280 S.E.2d 584 (1981).").
With respect to an erroneous decision by a trial court to
refuse to give a particular instruction, we have established specific guidelines to be
used in determining whether such a ruling constitutes reversible harmful error.
"A trial court's refusal to give a
requested instruction is reversible error only if: (1) the instruction is a correct
statement of the law; (2) it is not substantially covered in the charge actually given to
the jury; and (3) it concerns an important point in the trial so that the failure to give
it seriously impairs a defendant's ability to effectively present a given defense."
State v. Wade, 200 W. Va. 637, 646, 490 S.E.2d 724, 733 (quoting Syl. pt. 11, State
v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994)), cert. denied, ___ U.S.
___, 118 S. Ct. 576, 139 L. Ed. 2d 415 (1997).
Finally, where the party objecting to an instruction on appeal
challenges the legal sufficiency of the instruction as opposed to the actual giving of, or
the refusal to give, the instruction, we employ a de novo standard of review. See,
e.g, Syl. pt. 1, in part, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257
("[T]he question of whether a jury was properly instructed is a question of law, and
the review is de novo."). See also State v. McGuire, 200
W. Va. 823, 828, 490 S.E.2d 912, 917 (1997) ("Our review of the legal
correctness of a jury instruction . . . is performed de novo[.]" (footnote
omitted)); B.F. Specialty Co. v. Charles M. Sledd Co., 197 W. Va. 463, 466,
475 S.E.2d 555, 558 (1996) ("Whether an instruction is legally correct is a question
of law [sic] and our review is de novo. State v. Guthrie, 194 W. Va.
657, 671 n.12, 461 S.E.2d 163, 177 n.12 (1995).").
Applying the above-described standards to the case presently
before us, we now proceed to evaluate, in turn, the defendants' challenges to the
following jury instructions given or refused by the trial court in the proceedings below:
(1) the validity and effect of the ex parte temporary injunction, issued in the
inverse paternity proceeding ("West Virginia case 1"), which enjoined Anne from
placing her child for adoption until the child's paternity had been established; (2) the
applicability of the Interstate Compact for the Placement of Children and the Uniform
Child Custody and Jurisdiction Act; (3) the existence of a parent's right to the custody
of his/her child; (4) the effect of the defendants' actions on John's rights to due
process and equal protection of the law; and (5) the consideration of contempt of court
orders against defendants Anne and Dr. and Mrs. Conaty and of alleged violations of legal
ethics rules by defendants Brian and Leavitt.
1. Validity and Effect of Ex Parte Temporary Injunction
The defendants first complain that the circuit court erred by
giving and refusing to give certain instructions pertaining to the ex parte
temporary injunction order obtained by John in his inverse paternity action. In early
June, 1991, John filed a petition in the circuit court of Cabell County seeking a
conclusive determination of whether or not he was the father of Anne's then-unborn child.
In conjunction with this paternity petition, John requested injunctive relief including:
1. An Order prohibiting [Anne] from
consenting to an adoption of her unborn child until the issue of [John's] paternity of
said child has been determined;
2. An Order compelling [Anne] to advise
[John] of her whereabouts and to provide him with updated information regarding the
condition of the unborn child; and
3. An Order compelling [Anne] to advise
[John] of the impending birth of the child reasonably in advance of the delivery of said
child.
Following a hearing on John's petition requesting, in part, injunctive relief, the circuit
court entered an ex parte temporary injunction on June 26, 1991, "prohibiting
[Anne] from placing her unborn child for adoption by anyone through any agency, church,
group, attorney, or private household until the paternity of [John] can be established or
refuted." The court further ordered John "to provide notice to [Anne] of this
Injunction," presumably by publication.See
footnote 53 53
During the proceedings underlying the instant appeal, the trial
court evaluated evidence pertaining to the ex parte temporary injunction entered in
John's previous inverse paternity proceeding. The court then advised the jury, over the
defendants' objection: "You are instructed in this case that the injunction obtained
by John Kessel on June 26, 1991, was not void." Plaintiff's Instruction No. 38(a) (as
amended). Additionally, the court instructed the jury, over the objection of the
defendants, that:
When a Court has jurisdiction in the sense
of power to decide whether an injunction or other writ shall be awarded, the party against
whom it issues is bound to obey it, although the awarding of it may have been erroneous,
and, in that sense, improper and improvident, and it may operate unreasonably and
unjustly; he must obey it until vacated or dissolved. Even though an injunction may have
been erroneously granted, unless it is absolutely void, it is the duty of the parties
enjoined to obey it scrupulously, and they will be held to a strict observance of it.
Plaintiff's Instruction No. 38 (as amended). The court thereafter refused to give two
instructions proffered by the defendants pertaining to the effect of the ex parte
temporary injunction. Defendants' Instruction Number 3 would have provided: "You are
instructed that Anne Conaty did not violate the injunction issued by the Circuit Court of
Cabell County, West Virginia, on June 26, 1991, because the Circuit Court of Cabell County
was without jurisdiction to prevent her from placing her child for adoption."See footnote 54 54 Similarly,
Defendants' Instruction Number 46 would have directed: "You are instructed that the
injunction issued by the Circuit Court was of no effect because no bond had been given and
because the Judge made no finding that a bond was not required."See footnote 55 55 From these rulings of the circuit
court, the defendants appeal to this Court.
On appeal, the defendants primarily challenge the trial court's
ruling as to the validity of the ex parte temporary injunction entered during
John's inverse paternity action. As a result of this ruling, the defendants complain that
certain instructions granted and refused by the court were erroneous as they perpetuated
the trial court's initial error in refusing to find that the injunction was void. They
first challenge as improper the jurisdiction of the Circuit Court of Cabell County to
enjoin acts occurring outside of its territorial jurisdiction. At the time the ex parte
temporary injunction was issued by the circuit court, John averred that Anne had removed
herself from her previous residence in Huntington, West Virginia, and that he did not know
her subsequent whereabouts. Thus, the defendants assert, it may be inferred that John knew
that any prospective adoptive placement of the parties' child would occur outside of
Cabell County, West Virginia.
The defendants then argue that by issuing the ex parte temporary injunction preventing Anne from placing the parties' child for adoption, the circuit court exceeded its territorial jurisdiction in direct contravention of West Virginia statutory law. Citing W. Va. Code § 53-5-3 (1923) (Repl. Vol. 1994) ("Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments."). See also Syl. pt. 2, Meadows ex rel. Professional Employees of West Virginia Educ. Ass'n v. Hey, 184 W. Va. 75, 399 S.E.2d 657 (1990) ("Under W. Va. Code § 53-5-3 (1981), the circuit court of one county does not have the authority to enjoin the acts of citizens occurring in other counties, except where the judge of the other county is interested in the proceeding and unable to act."). Consequently, the defendants maintain, because the circuit court did not have jurisdiction to enter the injunction, it was void.
The defendants next contend that the ex parte temporary
injunction is without legal effect because John did not post an injunctive bond with the
circuit court and the court did not specifically waive this requirement. In support of
this contention, the defendants cite W. Va. Code § 53-5-9 (1923) (Repl. Vol. 1994):
An injunction . . . shall not
take effect until bond be given in such penalty as the court or judge awarding it may
direct, with condition to pay the judgment or decree (proceedings on which are enjoined)
and all such costs as may be awarded against the party obtaining the injunction, and also
such damages as shall be incurred or sustained by the person enjoined, in case the
injunction be dissolved, and with a further condition, if a forthcoming bond has been
given under such judgment or decree, to indemnify and save harmless the sureties in such
forthcoming bond and their representatives against all lost [sic] or damages in
consequence of such suretyship; or, if the injunction be not to proceedings on a judgment
or decree, with such condition as such court or judge may prescribe.
The defendants further bolster their argument by citing this Court's holding interpreting the effect of this statutory prerequisite to the effectiveness of an injunction: "[a]n order of injunction is of no legal effect under section 10, chapter 133, Code [W. Va. Code § 53-5-9], unless the court requires a bond, or recites in the order that no bond is required for good cause, or unless the movant is a personal representative." Syl. pt. 4, Meyers v. Washington Heights Land Co., 107 W. Va. 632, 149 S.E. 819 (1929). In explaining this holding, the Court in Meyers stated:
The intent and purpose of the statute is manifest, namely, that
he who invokes the injunctive process of the court must be [sic] proper bond guarantee to
make good to any person whose rights are prejudicially affected by such injunction all
damages and injuries thus occasioned to him. . . . If there was reason [for
excusing the enjoining party from posting the statutorily required bond], it should have
been recited in the order. Again we say courts of record must speak by their records. The
court's record containing no reason why the injunction should have been issued without
bond, it must be considered that there was no reason. Therefore, the granting of the
injunction in such manner was erroneous. Not only that, but the injunction was without
binding force. The statute so says. There was therefore no legal or binding injunctive
inhibition on the [party sought to be enjoined] . . . .
107 W. Va. at 643-44, 149 S.E. at 823-24. The defendants also suggest that this bond
requirement is likewise applicable to temporary injunctions. Citing Syl. pt. 2, Conley
v. Brewer, 85 W. Va. 725, 102 S.E. 607 (1920) ("It is error on decreeing a
temporary injunction to make the same effective without requiring of the plaintiff a bond
in such penalty as the court may prescribe, conditioned according to law."); Chesapeake
& Ohio R.R. Co. v. Patton, 5 W. Va. 234 (1872). Therefore, the defendants
claim that the ex parte temporary injunction had no legal effect as a result of
John's failure to post bond and the circuit court's failure to require him to do so or to
definitely waive such a requirement.
The defendants additionally urge that Anne cannot be found to
have violated the ex parte temporary injunction because she did not receive actual
notice of the injunctive order until after the enjoined act had occurred. In this vein,
the defendants represent that a party must have actual notice of the terms of an
injunction before he/she may be charged with its contents: "[w]here a party has
actual notice of an order of injunction, although it may not have been yet served, or be
defectively served upon him, the order becomes operative on him from that time." Syl.
pt. 3, Wenger v. Fisher, 55 W. Va. 13, 46 S.E. 695 (1904).
Further, the defendants suggest that the evidence presented at trial failed to establish that Anne had knowledge of the injunction before she placed Baby Boy Conaty for adoption. Anne testified that she did not know of the ex parte injunction order until November, 1991, when she returned from England where she had been visiting with her sister since shortly after the birth of the parties' child in July, 1991. Additionally, Anne was never personally served with the injunction order. Nevertheless, the defendants note that the jury affirmatively answered special interrogatories finding that both defendants Anne and Leavitt knew of the injunctive order prior to Baby Boy Conaty's adoptive placement.See footnote 56 56
Moreover, the defendants complain that Anne cannot be found to
have violated the injunctive order because she was not served with the injunction until
after the enjoined acts had occurred. While the injunction was entered on June 26, 1991,
the defendants claim that service of the injunctive order on Anne was not effective until
July 26, 1991, the last date of publication of the injunctive order, or some date
thereafter. As Anne had completed all of the pre-adoptive placement paperwork on July 25,
1991, she had effectively already placed Baby Boy Conaty for adoption on July 26, 1991,
and her actions in so doing could not then have been enjoined. Citing Syl. pt. 4, Chesapeake
& Ohio R.R. Co. v. Patton, 5 W. Va. 234 ("An injunction should not be
granted for an act done and completed, though contrary to law, unless under peculiar
circumstances."). Hence, the defendants argue the ex parte temporary
injunction was unenforceable because Anne did not obtain notice or knowledge of and was
not served with the injunction order until after she had completed the prohibited acts.
John replies that the ex parte temporary injunction was
valid and that the trial court did not err in so ruling. He further suggests that the most
appropriate redress for the defendants' grievances would have been to appeal the circuit
court's injunctive order or to request a writ of prohibition to prevent its enforcement.
As the defendants failed to pursue either of these remedies, though, John also responds to
their arguments before this Court. He first contests the defendants' position that Anne
had performed the acts sought to be enjoined, i.e., adoptive placement of Baby Boy
Conaty, prior to the effective date of service of the injunctive order upon her. He
suggests that the final paperwork required to be completed by the hospital before the
child could be released to the prospective adoptive parents was not finalized until July
26, 1991, the same date that service of the injunctive order on Anne by publication became
effective. Thus, John contends that Anne could have prevented the infant's adoptive
placement after she received notice, via publication, of the injunction.
John next proposes that the injunction was properly entered
pursuant to the circuit court's domestic relations jurisdiction. W. Va. Code §
48A-6-1 (1995) (Repl. Vol. 1996) defines the circuit court's domestic relations
jurisdiction applicable to the ex parte temporary injunction at issue in this
assignment of error:
(b) A "paternity proceeding" is
a summary proceeding, equitable in nature and within the domestic relations jurisdiction
of the courts, wherein a circuit court . . . may . . .
protect the respective personal rights of a child for whom paternity has not been
lawfully established, of the mother of the child and of the putative father of the child.
Under this jurisdiction, John claims that the circuit court was empowered to "enjoin
the offending party from . . . interfering with the custodial or visitation
rights of the other . . . ." W. Va. Code § 48-2-13(a)(11-12)
(1993) (Repl. Vol. 1996). See also W. Va. Code § 48-2-15 (1996) (Repl. Vol.
1996).
John also suggests that the circuit court properly exercised
personal jurisdiction over Anne by virtue of her status as a domiciliary of Cabell County,
West Virginia. Citing Meadows, 184 W. Va. 75, 399 S.E.2d 657. West
Virginia remained Anne's state of domicile, despite her temporary absence from this
region, because she retained her intention to remain in this state for an indefinite
period of time. Citing Syl. pt. 8, in part, White v. Manchin, 173
W. Va. 526, 318 S.E.2d 470 (1984) ("Domicile is a combination of residence (or
presence) and an intention of remaining. If domicile has once existed, mere temporary
absence will not destroy it, however long continued." (internal quotations and
citation omitted)). In support of this theory John asserts that during her sojourn in
California and other states, Anne did not change her permanent address to one other than
her prior address in Huntington, West Virginia. In addition, Anne's intent to return to
this State is exemplified by her request for a leave of absence from her Huntington, West
Virginia, teaching position, rather than an unconditional resignation of this post. As
both she, and her child, were domiciliaries of West Virginia, the Cabell County Circuit
Court properly exercised in personam jurisdiction over Anne in issuing the ex
parte temporary injunction order. Citing Rogers v. Commonwealth, 176 Va.
355, 361, 11 S.E.2d 584, 586 (1940) (holding that domicile of nonmarital child is same as
that of child's mother).
Finally, John urges that the circuit court possessed
jurisdiction to enter injunctive relief by virtue of its authority to determine matters
related to the paternity of a child. Specifically, a circuit court obtains personal
jurisdiction in paternity matters, in part, pursuant to W. Va. Code § 48A-6-1 (1989)
(Cum. Supp. 1991):
(b) A person who has sexual intercourse in
this state submits to the jurisdiction of the courts of this state for an action brought
under this article with respect to a child who was conceived by that act of intercourse.
Service of process may be perfected according to the rules of civil procedure.
Given the circuit court's jurisdiction over Anne's person, John maintains that the court
had the power to issue an injunction to restrain Anne from performing certain acts even if
such acts were to be performed outside of the circuit court's territorial jurisdiction. Citing
United States Fire Ins. Co. v. Fleenor, 179 Va. 268, 18 S.E.2d 901 (1942).
Furthermore, John contends that even if the injunction was later determined to be invalid,
Anne was required to abide by its terms until such a judicial determination had been made.
Citing Howat v. Kansas, 258 U.S. 181, 189-90, 42 S. Ct. 277, 280-81, 66 L. Ed. 550, ___
(1922); Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. 200, 206, 220 S.E.2d 672, 677 (1975).
Having scrupulously examined the defendants' arguments
pertaining to this particular assignment of error, we initially are inclined to refuse to
address their merits based upon the fact that such arguments, though couched in terms of
erroneous jury instruction rulings, are, in fact, nothing more than attempts to challenge
the validity of the ex parte temporary injunction at this late date. Ordinarily, we
would reject such an untimely challenge where the record evinces no prior objection to the
injunctive order's validity. See Syl., Brast v. Kanawha Oil Co., 46
W. Va. 613, 33 S.E. 302 (1899) ("An ex parte order granting an injunction
is not appealable until after a motion made to vacate or set it aside.").See footnote 57 57 Nevertheless,
because we find that a determination of the injunction's validity is an integral and
indispensable step in assessing the propriety of the jury instructions granted and refused
by the trial court, we will undertake to evaluate, on the merits, the issues presented for
consideration.
The defendants first challenge the propriety of the circuit court's instruction advising that the injunction "was not void." See Plaintiff's Instruction No. 38(a) (as amended). Typically, a court may issue an injunction to enjoin only those acts occurring within that court's territorial jurisdiction. W. Va. Code § 53-5-3 (1923) (Repl. Vol. 1994) directs that "[j]urisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended[.]" See also Syl. pt. 1, Ray v. Hey, 183 W. Va. 521, 396 S.E.2d 702 (1990) ("'By section 4, c. 133, Code 1913 (sec. 4950) [W. Va. Code, 53-5-3 [1931]], jurisdiction to award injunctive process is vested exclusively in the circuit court of the county wherein the act or proceeding sought to be enjoined is to be done, or is doing, or is apprehended, notwithstanding some of the defendants may reside in another county[,] except as provided in sections 6 and 9 of the same chapter (secs. 4952, 4955) [W. Va. Code, 53-5-4, -7 [1931]], and where a co-ordinate court has jurisdiction on grounds other than the award of such injunction.' Syllabus Point 1, Wayland Oil & Gas Co. v. Rummel, 78 W. Va. 196, 88 S.E. 741 (1916).").
However, a well-recognized exception exists to permit courts to
enjoin acts occurring outside of their territorial jurisdiction where the injunctive
relief is merely ancillary to an underlying proceeding over which the court unquestionably
has jurisdiction. In this respect, Syllabus point 3 of Shobe v. Latimer, 162
W. Va. 779, 253 S.E.2d 54 (1979), indicates that "W. Va. Code § 53-5-3 has
been held to be applicable only where an injunction is the exclusive relief sought, and
not where injunctive relief is merely ancillary to the primary claim advanced in the case.
Lewis, Hubbard & Co. v. Pugh, 115 W. Va. 232, 174 S.E. 880 (1934); State
v. Fredlock, 52 W. Va. 232, 43 S.E. 153 (1902)." See also Syl. pt. 2,
State v. Fredlock, 52 W. Va. 232, 43 S.E. 153 ("A court having
jurisdiction in personam, may require the defendant to do, or refrain from doing,
beyond its territorial jurisdiction, anything which it has power to require him to do or
omit within the limits of its territory."). Interpreting the language of the Shobe
holding, we discern that "exclusive" "'is synonymous with the words
"only" and "sole[]",'" 21A Michie's Jur. Words and Phrases
159 (1987) (quoting United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W. Va.
374, 376, 135 S.E. 399, 400 (1926)), and that "ancillary" signifies "a
proceeding attendant upon or which aids another proceeding considered as principal,"
Black's Law Dictionary 85 (6th ed. 1990).
Looking to the petition filed in John's inverse paternity
proceeding, we find that John requested both a determination of paternity and injunctive
relief in aid of obtaining, or ancillary to, such a paternity determination. Under the
applicable statutory law, John was entitled to petition the court for an ascertainment of
his fatherhood of Anne's child. See W. Va. Code § 48A-6-1(a)(7) (1989) (Cum.
Supp. 1991) ("(a) A civil action to establish the paternity of a child
. . . may be instituted, by verified complaint, in the circuit court of the
county where the plaintiff, the defendant or the child resides. Such action may be brought
by any of the following persons: . . . (7) A man purporting to be the father of
a child born out-of-wedlock, when there has been no prior judicial determination of
paternity."). Likewise, the Circuit Court of Cabell County had express jurisdiction
to hear the paternity matter raised by John because John was, at that time, a resident of
Cabell County.
With respect to the specific contents of John's inverse
paternity petition, it is apparent from the record evidence that he filed his action both
to determine whether he was, in fact, the father of Anne's child and to prevent Anne from
placing her child for adoption until his paternity had been established or refuted. In
this regard he expressed to the circuit court, during the ex parte temporary
injunction hearing, his desire to obtain a conclusive determination of his paternity or
lack thereof. Moreover, one may infer, from reviewing the petition filed by John, that
injunctive relief would have been meaningless without an attendant determination that John
was the father of Anne's child. In this manner, if all that John sought and received was
the injunctive relief at issue, he would have been powerless to assert his parental and/or
custodial rights vis-a-vis the child unless he had been judicially determined to be the
child's father. Thus, because the injunction issued by the circuit court was merely
ancillary to the primary inverse paternity proceeding, the goal of which was to determine
whether John was the father of Anne's child, the court was empowered to enjoin Anne's
adoptive placement of Baby Boy Conaty, although the contemplated acts were likely to occur
outside of Cabell County, West Virginia.
Additionally, the circuit court was entitled to entertain John's request for injunctive relief and to grant such relief in order to preserve the status quo pending the resolution of the underlying inverse paternity action. We long have recognized the propriety of issuing an injunction to preserve the status quo of pending litigation. See, e.g., Syl. pt. 2, Powhatan Coal & Coke Co. v. Ritz, 60 W. Va. 395, 56 S.E. 257 (1906) ("The function of a preliminary injunction, whether it be prohibitory or mandatory, is to preserve the status quo until, upon final hearing, the court may grant full relief."), overruled on other grounds by Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. 200, 220 S.E.2d 672 (1975). See also Syl. pt. 3, Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. 200, 220 S.E.2d 672 ("A court may protect its power to determine its own jurisdiction by issuing a temporary injunction to maintain the status quo pending an adversary determination of its own jurisdiction."); Syl. pt. 1, in part, Leslie Co. v. Cosner Coal Co.,
131 W. Va. 483, 48 S.E.2d 332 (1948) (permitting injunction to be dissolved where
no clear showing is made requiring injunctive relief "for the preservation of the status
quo"). Thus, the circuit court had the authority to issue injunctive relief in
John's inverse paternity action in order to preserve, to the extent possible, the status
quo until a conclusive determination of John's paternity could be made.See footnote 58 58
Finally, the circuit court was permitted to issue a temporary
injunction on an ex parte basis. We specifically have recognized that "[a]
circuit court judge may issue a valid injunction on the ex parte motion of a
litigant." Syl. pt. 1, Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. 200,
220 S.E.2d 672. Because of the one-sided nature of the proceedings surrounding such an
order and the respect we afford the rights of the adverse party, "[a]n ex parte
preliminary injunction is an extraordinary remedy which is justified only under
extraordinary circumstances." Syl. pt. 1, Ashland Oil, Inc. v. Kaufman, 181
W. Va. 728, 384 S.E.2d 173 (1989). When faced with a request for ex parte
injunctive relief,
"a court shall grant such an injunction only if it clearly
appears from specific facts shown by affidavit or verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant before the adverse party
or his attorney
can be heard in opposition. The applicant's attorney must certify to the court the
efforts, if any, which have been made to give the notice and the reasons supporting any
claim that notice should not be given."
Syl. pt. 1, in part, United Mine Workers of Am., Local Union 1938 v. Waters, 200
W. Va. 289, 489 S.E.2d 266 (1997) (quoting Syl. pt. 3, in part, Ashland Oil, Inc.
v. Kaufman, 181 W. Va. 728, 384 S.E.2d 173).
An examination of the injunctive order indicates that the
circuit court, in granting ex parte injunctive relief, properly complied with the
prerequisite findings mandated by United Mine Workers and Ashland. The court
specifically found "[t]hat [John], as well as any prospective adopting parents, will
be irreparably harmed if the unborn child is placed for adoption without the establishment
of [John's] paternity and without [John's] consent," thereby rendering necessary the
injunction prohibiting Anne from placing her child for adoption. Furthermore, the
transcript of the ex parte temporary injunction hearing reflects the attempts made
by John's counsel to provide notice to Anne of the paternity petition and injunctive
proceedings:
A. [by John] We tried to serve her
brother, Brian, -- She lived with her brother Brian on Eleventh Avenue -- multiple times
and no one was home. We tried to serve her parents in town. No one there.
She told me
David Lockwood was her attorney. Also Brian told me David Lockwood was her attorney. I had
a former attorney in February who had talked with Mr. Lockwood and said that he was her
attorney, but evidently--
Q. [by Court] [Lockwood] represented to
the Court yesterday or today that he was not representing her.
A. Exactly.
Q. So, that is why we couldn't let
service go through him.
. . . .
MS. EIFERT
[counsel for John]: My office attempted to serve [Anne] two times at her previous
residence where she resided with Brian; and, in fact, a person in the neighborhood said
Ms. Conaty did not reside there any more. We have since that still attempted to serve it
at that residence but Brian has never been there to pick it up.
The week before
the hearing we tried serving it Wednesday, Thursday, Friday at the Conaty home on
Thirteenth Avenue [sic] and they were not home.
We went to the
Circuit Clerk and had it sent by certified mail under Rule 4 and then today is the first
time it is in the newspaper by order of publication; and I also, as [John] said, on June
the 5th sent a courtesy copy to Dave [Lockwood] because I had understood from John that
Dave was her attorney.
Following this exchange, the court specifically found that "I am of the opinion that
[John] has used due diligence in order to get personal service upon [Anne]. I don't know
what else they could do; and, therefore, the Court feels comfortable in having the ex
parte hearing in this matter." Hence, the court recognized the circumstances under
which ex parte injunctive relief is appropriate and found that such relief was
appropriate in the underlying inverse paternity action. In sum, it appears that, on
several grounds, the circuit court possessed subject matter jurisdiction to issue the ex
parte temporary injunction.See footnote 59 59
The Circuit Court of Cabell County also had personal
jurisdiction to enjoin Anne from placing her child for adoption. Pursuant to W. Va.
Code § 48A-6-1(b) (1989) (Cum. Supp. 1991), "[a] person who has sexual intercourse
in this state submits to the jurisdiction of the courts of this state for an action
brought under this article with respect to a child who was conceived by that act of
intercourse." The parties do not dispute that the conception of Baby Boy Conaty
occurred anywhere but in the state of West Virginia. Accordingly, it appears that both
Anne and John, by their actions, have submitted to personal jurisdiction in West Virginia
with respect to all proceedings pertaining to the paternity of Baby Boy Conaty. Since the
circuit court granted the ex parte temporary injunction incident to the underlying
inverse paternity proceeding, the circuit court properly asserted personal jurisdiction to
enjoin Anne from placing her child for adoption until the child's paternity had been
established.
Furthermore, the circuit court was permitted to exercise
personal jurisdiction over Anne in relation to issuing the ex parte temporary
injunction pursuant to the explicit law of injunctions. As we recognized above, a circuit
court may enter an ex parte temporary injunction where the circumstances warrant
such relief. Given the circuit court's authority to issue temporary injunctions ex
parte, we are compelled to find the court could properly enter an injunction despite
Anne's contentions that she did not have prior notice of the injunction hearing and that
she was absent from the hearing as a result of this lack of notice. Implicit in the term
"ex parte" is the recognition that one party seeks judicial relief on
his/her own initiative despite the fact that the other party is not then presently before
the court. The very definition of "ex parte" commands such an
interpretation: "'[e]x parte' is defined as on one side only; by or for one party;
done for, in behalf of or on the application of, one party only." 21A Michie's Jur. Words
and Phrases 64 (Supp. 1997) (citing In re Kaufman, 187 W. Va. 166, 171
n.5, 416 S.E.2d 480, 485 n.5 (1992) (internal quotations and citation omitted)).
Therefore, the fact that we have permitted courts to issue injunctive orders ex parte
implies that we also have approved the entry of such orders despite the adverse party's
absence. Reiterating our finding set forth above, because we have determined that the
circuit court properly evaluated and applied the factors requisite to issuing ex parte
injunctive relief, we conclude that the circuit court did not lack personal jurisdiction
to enjoin Anne's adoptive placement of her infant son solely because the relief was
granted ex parte and not in Anne's presence.
Moreover, the statutory provision governing the issuance of
injunctions, generally, places the question of whether the party sought to be enjoined
should be given notice of the injunction proceedings within the sound discretion of the
circuit court.
[A]ny court or judge may require that reasonable notice
shall be given to the adverse party, or his attorney-at-law, or in fact, of the time and
place of moving for it, before the injunction is awarded, if in the opinion of the court
or judge it be proper that such notice should be given.
W. Va. Code § 53-5-8 (1955) (Repl. Vol. 1994) (emphasis added). Likewise, this Court
has approved the ability of the circuit court to discretionarily provide notice to the
adverse party. See Ashland Oil, Inc. v. Kaufman, 181 W. Va. at 731
& n.4, 384 S.E.2d at 176 & n.4 (reaffirming our prior approval of the
discretionary notice provision contained within W. Va. Code § 53-5-8 and reiterating
that "'a circuit judge[,] or judge thereof in vacation, on application for
injunction, may exercise a sound discretion in the matter of requiring notice to be given
to the adverse party[,] or his attorney[-]at[-]law or in fact, of the time and place of
moving for it before the injunction is awarded'" (quoting Syl. pt. 1, in part, Kalbitzer
v. Goodhue, 52 W. Va. 435, 44 S.E. 264 (1903))). Thus, it again appears that the
circuit court's assertion of jurisdiction over Anne in its issuance of the ex parte
temporary injunction was appropriate. Based upon our foregoing analysis, we conclude that
the Circuit Court of Cabell County had both subject matter and personal jurisdiction to
grant the ex parte temporary injunction requested by John. As such, we further find
that the circuit court, in the trial of John's civil action, did not err in instructing
the jury that the injunction order "was not void."See footnote 60 60
Next, the defendants argue that the circuit court erroneously
instructed the jury that an enjoined party must obey an injunction, even if it was
erroneously granted, unless the injunction is absolutely void or until it is subsequently
vacated or dissolved. See Plaintiff's Instruction No. 38 (as amended). As we noted
above, the formulation of a trial court's jury charge is within its discretion and, where
the instruction given is a correct statement of the law, we are reluctant to find an abuse
of the court's discretion. See, e.g., Syl. pt. 4, State v. Guthrie, 194
W. Va. 657, 461 S.E.2d 163 (1995). Upon a review of the applicable law, we are
convinced that the instruction challenged by the defendants in this instance was, in fact,
a correct statement of the applicable law. In Syllabus point 2 of Eastern Associated
Coal Corp. v. Doe, 159 W. Va. 200, 220 S.E.2d 672, we recognized that "[a]
court having jurisdiction of the parties and colorable jurisdiction of the subject matter
may issue an injunction which must be obeyed regardless of whether it is ultimately
determined to have been erroneously or improvidently awarded." See also Syl.
pt. 3, State ex rel. Askin v. Dostert, 170 W. Va. 562, 295 S.E.2d 271 (1982)
("Where a court has jurisdiction to issue a particular order, the fact that such
order is erroneous, irregular, or is improvidently rendered, does not justify one in
disregarding or violating the order, and then citing the court's error as a defense to a
charge of contempt. Where, however, the court or judge lacks jurisdiction, or is without
power or authority to render the order, refusal to comply with such order may not be
punished as contempt."); State v. Fredlock, 52 W. Va. 232, 243, 43 S.E. 153, 157 (1902) ("When a court has jurisdiction in the sense of power to decide
whether an injunction or other writ shall be awarded, the party against whom it issues is
bound to obey it, although the awarding of it may have been erroneous, and, in that sense,
improper and improvident, and it may operate unreasonably and unjustly. He must obey it
until vacated or dissolved." (citations omitted)).
Reviewing the instruction challenged in this instance by the
defendants, we can find no error in the statement of the law or in the circuit court's
decision to so instruct the jury. Our examination of this instruction as it was originally
tendered to the circuit court further indicates that its basis in law was correct. In
support of this instruction, John cites Doe and Fredlock, both of which we
have found to be supportive of the statement contained in the challenged instruction.
Therefore, we find that the circuit court did not err in granting this instruction over
the defendants' objections.
The defendants' third allegation of error with regard to the
injunction instructions concerns the circuit court's refusal to give an instruction
proffered by the defendants, directing: "You are instructed that Anne Conaty did not
violate the injunction issued by the Circuit Court of Cabell County, West Virginia, on
June 26, 1991, because the Circuit Court of Cabell County was without jurisdiction to
prevent her from placing her child for adoption." Defendants' Instruction No. 3. In
reviewing arguments pertaining to a circuit court's refusal to give a particular jury
instruction, "[i]t will be presumed that a trial court acted correctly
. . . in refusing to give instructions to the jury, unless it appears from the
record in the case . . . that the instructions refused were correct and should
have been given." Coleman v. Sopher, ___ W. Va. ___, ___, ___ S.E.2d ___,
___, slip op. at 28 (No. 23943 Nov. 20, 1997) (internal quotations and citations omitted).
Where the instruction is determined to have been correct such that it should have been
given,
"[a] trial court's refusal to give a
requested instruction is reversible error only if: (1) the instruction is a correct
statement of the law; (2) it is not substantially covered in the charge actually given to
the jury; and (3) it concerns an important point in the trial so that the failure to give
it seriously impairs a defendant's ability to effectively present a given defense."
State v. Wade, 200 W. Va. 637, 646, 490 S.E.2d 724, 733 (quoting Syl. pt. 11, State
v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994)), cert. denied, ___ U.S.
___, 118 S. Ct. 576, 139 L. Ed. 2d 415 (1997).
Our first inquiry, then, is whether the instruction proffered by
the defendants but refused by the circuit court was a correct statement of the applicable
law. Although we have determined that the circuit court properly exercised its authority
by entering the ex parte temporary injunction to prohibit Anne from placing her
child for adoption, we are concerned about the subsequent ramifications of this order. Our
statutory and jurisprudential law permits a court to assert jurisdiction over a party who
is not presently before it, and who may not have received notice of the judicial hearing,
for the purpose of entering an injunction to prohibit him/her from conducting him/herself
in a particular manner. This assumption of personal jurisdiction is well documented in the
law of this State and cannot be disputed.
The problem arises, however, when one attempts to enforce an
injunction that has been entered in the aforementioned manner against a party who, even
after the entry of the injunction, cannot be personally served with the prohibitory order.
In such a case, a court may order service of the injunction order by publication. While
the enjoined party would be required to comply with the prohibitory terms of the
injunction, it is conceivable that he/she may never have acquired actual notice of its
terms. See 14A Michie's Jur. Notice § 3, at 4-5 (1989) ("Actual notice
is actual knowledge, by the party, of the very matter or thing of which he is said to have
notice." (footnote omitted)). Though we have held "[w]here a party has actual
notice of an order of injunction, although it may not have been yet served, or be
defectively served upon him, the order becomes operative on him from that time," Syl.
pt. 3, Wenger v. Fisher, 55 W. Va. 13, 46 S.E. 695 (1904); Syl. pt. 2, Osborn
v. Glasscock, 39 W. Va. 749, 20 S.E. 702 (1894) (same), we remain concerned by
the potential inequities of this situation.
More simply stated, we are hesitant to require a party to
comply with the terms of an injunctive order where it is questionable whether the
enjoining court could, within the bounds of due process, compel such compliance. In this
regard, we look to W. Va. Code § 61-5-26 (1923) (Repl. Vol. 1997), which defines the
criminal offense of "contempt of court":
The courts and the judges thereof may
issue attachment for contempt and punish them summarily only in the following cases:
. . . (d) disobedience to or resistance of any . . . person, to any
lawful process, judgment, decree or order of the said court. . . . No court
shall impose a fine for contempt, unless the defendant be present in court, or shall have
been served with a rule of the court to show cause, on some certain day, and shall have
failed to appear and show cause.
See also W. Va. Code § 62-6-6 (1965) (Repl. Vol. 1997) ("No court shall
impose a fine upon a[ny] person, for disobedience of its process or any contempt, unless
he be present in a court at the time, or shall have been served with a rule of the court,
returnable to a time certain, requiring him to show cause why the fine should not be
imposed, and shall have failed to appear and show cause."). See generally State
ex rel. Arnold v. Conley, 151 W. Va. 584, 587, 153 S.E.2d 681, 683 (1966)
(recognizing criminal nature of charge of "contempt of court" (citations
omitted)), overruled on other grounds by State ex rel. Koppers Co., Inc. v.
International Union of Oil, Chem. & Atomic Workers, 171 W. Va. 290, 298 S.E.2d 827 (1982); Syl. pt. 1, State v. Ralphsnyder, 34 W. Va. 352, 12 S.E. 721 (1890) (same). Rule 42(b) of the West Virginia Rules of Criminal Procedure further
clarifies the manner in which a court should apprise an offending party of a charge of
contempt:
A criminal contempt, except [where summary
disposition is permissible], shall be prosecuted on notice. The notice shall state the
time and place of hearing, allowing a reasonable time for the preparation of the defense,
and shall state the essential facts constituting the criminal contempt charged and
describe it as such. The notice shall be given orally by the judge in open court in the
presence of the defendant or, on application of the prosecuting attorney or of an attorney
appointed by the court for that purpose, by an order to show cause or an order of
arrest[.]
Implicit within the procedure designated for charging one with
contempt of court is the presence of the offending party before the court or sufficiently
within the court's jurisdiction so as to permit him/her to be aware of the court's show
cause ruling. Generally stated, a "show cause order" is a "[c]ourt order,
decree, execution, etc., to appear as directed, and present to the court such reasons and
considerations as one has to offer why a particular order, decree, etc., should not be
confirmed, take effect, be executed, or as the case may be." Black's Law Dictionary
1379-80 (6th ed. 1990) (citation omitted).
Tempered with the delineated procedures for charging one with
contempt of court, though, is the overriding consideration, pertaining to all criminal
proceedings, of the due process protection afforded by our State Constitution: "No
person shall be deprived of life, liberty, or property, without due process of law, and
the judgment of his peers." W. Va. Const. art. 3, § 10. "A fundamental
element of 'due process of law' is an opportunity to be heard, . . . and an
opportunity to be heard . . . '"has little reality or worth unless one is
informed that the matter is pending and can choose for himself [or herself] whether to
. . . contest."'" Segal v. Beard, 181 W. Va. 92, 100, 380 S.E.2d 444, 452 (1989) (quoting Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729,
738, 42 L. Ed. 2d 725, 737 (1975) (quoting Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950))). Hence, if an
adverse party does not receive actual notice of an injunctive order, it is extremely
unlikely that he/she would be apprised of the circuit court's subsequent institution of
contempt charges arising from his/her violation of the unknown order.See footnote 61 61 Under such circumstances, it remains
to be seen whether a court could properly charge such a party with contempt. As this
precise issue is not presently before us, we reserve for another day a final determination
of this matter.
Considering the above authorities, we conclude that it would be
patently unfair to rule that Anne was compelled to comply with the terms of the ex
parte temporary injunction when a question exists as to whether the circuit court
could have sanctioned her noncompliance with its terms. The effect of our ruling, then, is
to conclude that while the injunction was validly entered by a court having jurisdiction
of both the subject matter and the parties, the court lacked the power to enforce its
order while Anne was absent from its territorial jurisdiction and John was unable to
personally serve her with this decree. As a result, we find that the ex parte
temporary injunction order may have been voidable, but that it was not absolutely void.
See Black's Law Dictionary 1573 (6th ed. 1990) ("There is this difference
between the two words 'void' and 'voidable': void in the strict sense means than an
instrument or transaction is nugatory and ineffectual so that nothing can cure it; voidable
exists when an imperfection or defect can be cured by the act or confirmation of him who
could take advantage of it."); id., at 1574 (defining "voidable
judgment" as "[o]ne apparently valid, but in truth wanting in some material
respect" (citation omitted)). See also Syl. pt. 4, Hartwell v. Marquez,
___ W. Va. ___, ___ S.E.2d ___ (No. 24124 Nov. 21, 1997) (making void/voidable
distinction with respect to order of default judgment).
In reaching this result, we note that at least one of our prior decisions facially recognizes the necessity of ensuring that an enjoined party receive actual notice of the conduct that has been judicially proscribed in order to preserve the court's authority to enforce its injunctive order. See Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. at 210, 220 S.E.2d at 679 ("'An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected[.]'" (quoting Howat v. Kansas, 258 U.S. 181, 189-90, 42 S. Ct. 277, 280-81, 66 L. Ed. 550, ___ (1922)) (emphasis in original omitted and new emphasis added) (citations omitted)). To the extent that our prior holdings in Syllabus point 3 of Wenger v. Fisher, 55 W. Va. 13, 46 S.E. 695, and Syllabus point 2 of Osborn v. Glasscock, 39 W. Va. 749, 20 S.E. 702, are inconsistent with the result here obtained, they are expressly disapproved.See footnote 62 62
From the foregoing discussion, then, it appears that the
instruction proffered by the defendants was a correct statement of law insofar as
"Anne . . . did not violate the injunction issued by the Circuit Court of
Cabell County" because, until she had personally appeared before the court or had
received personal service of the injunction order, she was effectively incapable of
violating its provisions due to its unenforceability. The next factor to be determined in
assessing whether the circuit court's failure to grant this instruction constitutes
reversible error is whether the contents of this instruction were substantially covered in
the remainder of the jury charge. A review of the jury instructions given by the circuit
court reveals that the jury did not receive an instruction indicating either that Anne had
or had not violated the injunction. Thus, the court remained silent as to Anne's
compliance, or lack thereof, with the prior injunctive order.
Finally, an appellate court reviewing the propriety of a lower
court's decision to refuse a particular jury instruction is required to determine whether
the subject of the instruction was so important that its omission from the jury charge
constitutes reversible harmful error. Under the entire record of the trial court
proceedings presented to us for review in this matter, we find that the failure of the
circuit court to give the defendants' proffered instruction does not constitute reversible
error. In reaching this conclusion, we note that, rather than affirmatively instructing
the jury that Anne did or did not violate the injunctive order, the court merely remained
silent on this point. Thus, the jury was permitted to determine, for itself, whether Anne
had or had not violated this proscription and to consider such conduct in relation to the
remaining evidence indicative of Anne's fraudulent conduct.See footnote 63 63
Omitting from the evidence presented during the underlying
trial all reference to the ex parte temporary injunction, the jury reasonably could
have found numerous other indicia of fraud upon which to base Anne's liability for this
claim.See footnote 64 64 At trial,
the evidence showed that John repeatedly had informed Anne that he did not consent to the
adoption of their child and that Anne knew of his objections. The evidence also suggested
that Anne knew, on July 8, 1991, as reflected by Leavitt's notes from their meeting on
that date, that John had filed a civil action in West Virginia pertaining to their
then-unborn child. With this background, many of Anne's actions assume new significance
when viewed with respect to the allegations of fraud. For example, in direct contravention
of John's requests and the circuit court's commands, Anne failed to authorize the release
of her California medical records that would have provided John with information
pertaining to his child's prospective adoptive parents and the location of their
residence. In this regard, Anne did not refuse to release such information on just one
occasion. Rather, the record indicates that Anne protested such authorizations on at least
three occasions and ultimately complied with the court's directive only on pain of
contempt charges. Given the rigid time constraints involved, the jury could have inferred
that such refusals were meant to "buy more time" to ensure the success of the
Canadian adoption.
The jury also could have discerned Anne's efforts to
fraudulently conceal from John information pertaining to their child's post-birth
whereabouts from the fact that she used an assumed name when she entered the hospital in
preparation for her child's birth. Moreover, trial evidence indicated that Anne did not
decide upon this name at the time that she actually entered the hospital, but that she had
planned, since at least early July, 1991, to use the fictitious identity. While the jury
was left to determine whether Anne, herself, devised this scheme or whether the idea was
provided by one of the remaining defendants, and whether she believed such an assumed
identity was necessary to protect herself from what she perceived to be threats from John,
the jury nevertheless could have concluded that the employment of this alias had the
effect of further inhibiting John's efforts to locate his newborn child and to establish a
parent-child relationship with him. As the numerous inferences of fraudulent conduct
discussed above are by no means exhaustive of the record evidence from which the jury
could have charged Anne with fraudulent behavior, it is apparent that the circuit court's
refusal of the defendants' instruction did not constitute reversible error.
Lastly, the defendants charge that the circuit court
erroneously refused their proffered instruction pertaining to the effect of John's failure
to post an injunction bond and the circuit court's failure to require him to do so. See
Defendants' Instruction No. 46. They contend that the lack of an injunction bond coupled
with the absence of specific findings by the circuit court that such security was not
required rendered the ex parte temporary injunction ineffective. A party may
preserve for appellate review his/her objection to a lower court's refusal to give a
requested instruction if he/she "objects thereto before the arguments to the jury are
begun, stating distinctly, as to any given instruction, the matter to which he objects and
the grounds of his objection[.]" W. Va. R. Civ. P. Rule 51, in part. Where a
party has properly preserved his/her objection for review by this Court, we consider
whether a particular jury instruction refused by the trial court should have been granted
by examining whether (1) the instruction correctly states the law; (2) the instruction is
substantially covered elsewhere in the jury charge; and (3) the instruction concerns a
point so crucial that its omission substantially affects the defendant's ability to
effectively present his/her defense. State v. Wade, 200 W. Va. at 646, 490 S.E.2d at 733.
Reviewing the record of the proceedings during which this
particular instruction was refused, we are unable to locate any distinctly stated
objection, or the grounds therefor, with respect to Defendants' Instruction Number 46.
Accordingly, our appellate review of this issue is foreclosed. Syl. pt. 1, Jordan v.
Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974) ("Where an objection is made to
an instruction for the first time on appeal and such instruction is not so deficient so as
to require invocation of the 'plain error' rule, in consonance with Rule 51, W. Va. R. C.
P., this Court will not consider the late objection.").
Nevertheless, even if we address the merits of the defendants'
assignment of error on this ground, we determine that the circuit court did not commit
reversible harmful error by refusing this particular instruction. It is true that the
instruction correctly stated the generally applicable law, that is an injunction is of no
effect where an injunction bond has not been posted and where the issuing judge has not
made findings to dispense with the bond requirement. In this respect, W. Va. Code §
53-5-9 (1923) (Repl. Vol. 1994) specifically mandates:
An injunction (except in the case of any
personal representative, or other person from whom, in the opinion of the court or judge
awarding the same, it may be improper to require bond) shall not take effect until bond be
given in such penalty as the court or judge awarding it may direct, with condition to pay
the judgment or decree (proceedings on which are enjoined) and all such costs as may be
awarded against the party obtaining the injunction, and also such damages as shall be
incurred or sustained by the person enjoined, in case the injunction be dissolved[.]
Furthermore, this Court has recognized the necessity of an injunctive bond: "'[a]n
order of injunction is of no legal effect under . . . [Code, 53-5-9], unless the
court requires a bond, or recites in the order that no bond is required for good cause, or
unless the movant is a personal representative.' Pt. 4 Syl., Meyers v. Land Co.,
107 W. Va. 632[, 149 S.E. 819 (1929)]." Syl. pt. 7, Hall v. McLuckey, 134
W. Va. 595, 60 S.E.2d 280 (1950).
However, the instruction did not correctly state the law as it
pertained to the facts underlying the instant appeal. The phrasing of the instruction,
"[y]ou are instructed that the injunction issued by the Circuit Court was of no
effect because no bond had been given and because the Judge made no finding that a
bond was not required" (emphasis added), would seem to indicate that the bond
requirement had been completely disregarded by the circuit court issuing the ex parte
temporary injunction. This is not a correct characterization of the court's resultant
ruling. The defendants accurately represent that John was not required to post an
injunction bond upon receiving the injunctive relief he had requested. The defendants
incorrectly indicate, though, that the circuit court failed to make findings that no bond
was required. Both the injunctive order and the transcript of the injunction hearing
suggest that the circuit court determined that an injunction bond was not required because
good cause existed to dispense with this mandate. In this regard, the circuit court
specifically ruled "[t]hat [Anne] will not be harmed by the granting of a Temporary
Injunction preventing her from placing the child for adoption prior to the establishment
of [John's] paternity."
Despite the strict statutory requirement of an injunctive bond,
for all intents and purposes the final determination of whether an injunction bond will be
required of a certain party in a specific case is dependent upon the prerogative of the
enjoining court. Our judicial interpretation of that standard recognizes that there will
occasionally be cases in which the facts and circumstances simply do not compel the
posting of an injunctive bond, i.e., where "good cause" has been shown.
In determining whether a bond should be required in a given case, the enjoining court
should consider the reason for requiring the posting of an injunctive bond. "The
purpose [of an injunction bond] in all cases is to protect the defendant against loss or
damage by reason of the injunction in case the court finally decides that the plaintiff
was not entitled to it[.]" 42 Am. Jur. 2d Injunctions § 315, at 1115 (1969)
(footnote omitted). See Pioneer Co. v. Hutchinson, 159 W. Va. 276, 290,
220 S.E.2d 894, 903 (1975) ("The purpose of an injunction bond is to require the
party initiating the injunctive process to protect persons whose rights are prejudicially
affected from loss occasioned by damages or injury."), overruled, in part, on
other grounds by State ex rel. E.D.S. Fed. Corp. v. Ginsberg, 163 W. Va. 647,
259 S.E.2d 618 (1979); Meyers v. Washington Heights Land Co., 107 W. Va. at
643, 149 S.E. at 823-24 ("The intent and purpose of the statute [W. Va. Code §
53-5-9] is manifest, namely, that he who invokes the injunctive process of the court must
be [sic] proper bond guarantee to make good to any person whose rights are prejudicially
affected by such injunction all damages and injuries thus occasioned to him."). See
also Syl. pt. 3, Glen Jean, Lower Loup & Deepwater R.R. Co. v. Kanawha, Glen
Jean & E. R.R. Co., 47 W. Va. 725, 35 S.E. 978 (1900) ("Where no bond has
been required, damages are not recoverable, unless the injunction was maliciously sued
out, without probable cause."). Here, the court determined that Anne would not be
harmed by the issuance of the temporary injunction, and thus presumably concluded that if
she was not harmed by the injunction's issuance, she likewise would suffer no damages if
the injunction ultimately would be found to have been improperly granted. Thus, it seems
that, contrary to the defendants' assertions, the circuit court did contemplate whether a
bond would be necessary to the injunction's issuance and, finding no harm to the enjoined
party, dispensed with this requirement.
Furthermore, it may be argued that the defendants waived any
right they had to challenge the absence of an injunctive bond. By not timely raising this
issue before the issuing court, they effectively foreclosed their ability to raise this
issue in their proffered jury instruction. In Syllabus point 2 of Chesapeake & Ohio
Railroad Co. v. Patton, 5 W. Va. 234 (1872), we held, in part, that "[a]
party ought to be allowed a reasonable time after his attention is called to the defect in
the [injunction] bond, by rule or notice, in which to execute a proper bond, and on his
failure to do so the injunction ought to be dismissed." Impliedly, then, it would
seem that before an enjoined party can obtain relief from an injunction issued without the
appropriate bond, he/she must raise the issue to permit the party obtaining the injunction
an opportunity to cure the alleged defect. Glen Jean, Lower Loup & Deepwater R.R.
Co. v. Kanawha, Glen Jean & E. R.R. Co., 47 W. Va. at 727, 35 S.E. at 978-79
("It becomes the defendant to an injunction suit to see that a good and sufficient
bond is given, and unless he does so, he can recover no damages, in the presence of
probable cause, and in the absence of malice."). See also West Virginia Secondary
Sch. Activities Comm'n v. Wagner, 143 W. Va. 508, 515, 102 S.E.2d 901, 906 (1958)
("If the circuit court had jurisdiction to issue the injunction and the bond is
insufficient because the penalty is clearly inadequate, the court upon proper application
should require the execution of a sufficient bond within a designated period of time and,
for failure to comply with that requirement, should and presumably would dissolve the
injunction." (emphasis added)).
It is not apparent from the record of this case, though, that
the defendants ever complained of this defect to either the circuit court or John, the
party obtaining the injunction, so as to permit either or both of them to remedy this
perceived error. As the prompt raising of such perceived errors is crucial to ensure that
they can be adequately and expeditiously remedied by the appropriate circuit court, the
failure of the defendants to timely raise this objection forecloses their ability to rely
on this defect by way of their proffered jury instruction. See, e.g., Syl. pt. 1, Jenkins
v. Johnson, 181 W. Va. 281, 382 S.E.2d 334 (1989) (per curiam) ("'In the
exercise of its inherent power a court of equity may, after the adjournment of the term at
which by final decree a permanent preventive injunction was awarded, modify or vacate the
injunction, after due notice, by subsequent proceedings in the same suit, whether the
injunction was awarded after litigation or by consent of the parties, when it clearly
appears that, because of a change in the controlling facts or the relations of the parties
or the law upon which the injunction rests, its continuance is unjust or inequitable.
[This rule is now embodied in Rule 60(b)(5) of the West Virginia Rules of Civil
Procedure.]' Syllabus Point 3, as amended, Edlis, Inc. v. Miller, 132 W. Va.
147, 51 S.E.2d 132 (1948)." (brackets in original)). See also W. Va. R.
Civ. P. Rule 60(b) (requiring party seeking relief from "final judgment, order, or
proceeding" to make such motion within a "reasonable time," and, for
certain enumerated reasons, within "not more than eight months after the judgment,
order, or proceeding was entered or taken"); Savas v. Savas, 181 W. Va.
316, 319 n.2, 382 S.E.2d 510, 513 n.2 (1989) ("The term 'reasonable time' is not
susceptible of a precise definition. This statement is made at 11 C. Wright & A.
Miller, [Federal Practice & Procedure] § 2866 at 228-29 [(1973)]: '"What
constitutes reasonable time must of necessity depend upon the facts in each individual
case." The courts consider whether the party opposing the motion has been prejudiced
by the delay in seeking relief and they consider whether the moving party had some good
reason for his failure to take appropriate action sooner.' (Footnotes omitted)."
(additional citation omitted)). See generally Page v. Columbia Natural
Resources, Inc., 198 W. Va. 378, 391-92, 480 S.E.2d 817, 830-31 (1996)
(recognizing the purpose of requiring timely objections (to jury instructions) is to
permit the circuit court an opportunity to correct alleged errors).
Because the first element of our review for ascertaining
whether reversible error resulted from a court's refusal to give a requested instruction
has not been satisfied, i.e., whether the instruction correctly stated the
applicable law, we need not further address this matter. Therefore, we find that the
circuit court did not err by refusing to give Defendants' Instruction Number 46.
2. Applicability of ICPC and UCCJA
The defendants next argue that the circuit court erred by granting
John's instructions reciting the language of the Interstate Compact on the Placement of
Children [hereinafter ICPC] and the Uniform Child Custody Jurisdiction Act [hereinafter
UCCJA], and by informing the jury that the ICPC applied to the underlying Canadian
adoption proceedings. We will address each of these issues in turn.
a. Interstate Compact on the Placement
of Children (ICPC)
The defendants first complain that the circuit court erroneously
determined that the ICPCSee footnote 65 65
applied to the adoption proceedings involving Baby Boy Conaty. Prior to the underlying
trial in this matter, the circuit court, during a pre-trial hearing, determined that the
ICPC "is designed for the protection of children who are placed across state lines
for adoption. [In addition, t]he Act establishes orderly procedures for the interstate
placement of children and fixes responsibility for those involved in the placing of the
child." More specifically, subsection (a) of Article III of the compact provides:
No sending agency shall send [or] bring
. . . into any other party state any child . . . as a preliminary to a
possible adoption unless the sending agency shall comply with each and every requirement
set forth in this article and with the applicable laws of the receiving state governing
the placement of children therein.
W. Va. Code § 49-2A-1, art. III(a) (1975) (Repl. Vol. 1996). Interpreting this
section, the circuit court noted that the definition of a "sending agency"See footnote 66 66 includes a person,
and therefore Anne could be considered a "sending agency" under the ICPC.
Finding that the Circuit Court of Cabell County had acquired
jurisdiction of the parties' child by virtue of John's inverse paternity proceeding, the
circuit court suggested
[a] reasonable inference from the evidence
is that Anne Conaty and Mr. Leavitt knew of Dr. Kessel's claim and knew of the acts of the
West Virginia court, yet placed the child with the [adoptive parents] in Alberta, Canada,
at least in part because the province of Alberta has not adopted the I.C.P.C.[See footnote 67 67 ]
The court further concluded that "when Anne Conaty left West Virginia in January of
1991, she was at that time at least contemplating adoption and this had in fact been
discussed." Construing the above-stated ICPC provisions in conjunction with its
interpretation of the pertinent facts, the circuit court found
where an expectant mother crosses a state line as a part of a
placement plan and arrangement for adoption, the transaction should be viewed as an
interstate placement. To hold otherwise would permit expectant mothers to avoid the
safeguards of the I.C.P.C. to children by mechanically manipulating the point of delivery.
Article 10 of the I.C.P.C. directs that
the compact be . . . "liberally construed to effectuate its purposes"
. . . . And that purpose is to protect children, not to protect the rights
of parents. The I.C.P.C. is not to protect John Kessel's rights, but nor is it to be
construed to permit Anne Conaty to avoid the protections of her child by simply going to
California with the intent to avoid its application. Therefore, as a matter of law, this
Court finds the West Virginia Code Chapter 48, Article 2A, Section 1 applies to the facts
of this case and more particularly to the placement of the baby boy Conaty born on July
24, 1991 in Cedars Sinai Hospital in Los Angeles, California, to Anne Conaty.
Reaching this conclusion, the court further revealed, during
its examination of the proffered jury instructions, that its decision was based, in part,
on Secretariat Opinion 49, rendered June 30, 1986,See
footnote 68 68 by the Secretariat of the ICPC.See footnote 69 69 The circuit court reaffirmed its
earlier decision to find the ICPC applicable to the adoption of Baby Boy Conaty and
instructed the jury, over the defendants' objection, that:
the Court has ruled that the West Virginia ICPC applies to the
placement of the the [sic] child born to Anne Conaty and John Kessel on July 24, 1991.
Consequently, the parties had a duty to comply with the requirements of West Virginia ICPC
and the reciprocal California statute.
Plaintiff's Instruction Number 58(a) (as amended). The circuit court also granted, as
amended, Plaintiff's Instructions Numbers 58 and 59 which quoted, practically verbatim,
the language of the California and West Virginia ICPC provisions,See footnote 70 70 and to which the defendants objected.
On appeal to this Court, the defendants contend that the ICPC
instructions given by the trial court were erroneous. First, they complain that the
court's decision to give these instructions may have suggested to the jury that the
adoption procedures for the Canadian adoption of Baby Boy Conaty had not been complied
with even though Canada is not a member of the ICPC and despite the finalization of the
adoption by the Alberta court. Next, the defendants indicate that no other state supreme
court has found the ICPC to be applicable to the situation involved in this case: a mother
from State A travels to State B where she delivers her child and places him/her for
adoption with adoptive parents in State B. In support of their position, they cite Yopp
v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991). The Nebraska Supreme Court ruled, in Yopp,
that under the scenario described above, because the child was born and placed for
adoption in State B and because the child had never traveled to or become a resident of
State A after its birth, the ICPC did not apply because the placement was not considered
interstate in nature. Id., 237 Neb. at 792, 467 N.W.2d at 878.
Finally, construing the precise language of the ICPC
provisions, the defendants maintain that they simply do not apply to the adoptive
placement at issue in this case. First, the word "child" is not defined as
including unborn children. Citing W. Va. Code § 49-2A-1, art. II(a)
("'Child' means a person who, by reason of minority is legally subject to parental,
guardianship or similar control."). Furthermore, the definitions of "sending
agency" and "receiving state" specifically designate their applicability in
terms of the sending or receiving of a "child".See footnote 71 71 Construing the circuit court's
ruling, the defendants submit that the effect of such widespread applicability of the ICPC
could conceivably render every state to or through which a pregnant woman travels a
potential receiving state pursuant to the ICPC. They also indicate that the result
obtained under the circuit court's decision creates an impossible legal fiction: Anne, as
a sending agency, placed her unborn child into California, with herself, until the child
was born after which she placed her child for adoption into Canada. The ICPC precisely
excludes from its application a child's placement by his/her parent with a relative or
other family member. Citing W. Va. Code § 49-2A-1, art. VIII(a) ("This
compact shall not apply to: (a) The sending or brining of a child into a receiving state
by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or
his guardian and leaving the child with any such relative or nonagency guardian in the
receiving state.").
John disputes the defendants' interpretation of the ICPC as
being inapplicable to Baby Boy Conaty's adoption proceedings. He first asserts that
whether the Canadian court upheld the adoption of Baby Boy Conaty is irrelevant with
respect to whether the provisions of the ICPC were violated in the underlying adoption
proceedings. Moreover, John distinguishes the case cited by the defendants in support of
their position, Yopp v. Batt, indicating that the facts of Yopp did not
involve the rights of the child's biological father or suggest any attempt by the child's
biological mother to traverse state lines in an attempt to avoid compliance with the
procedures mandated by the ICPC.
John further replies that the circuit court correctly
determined that Anne was a sending agency under the ICPC as other states' courts have
found that a parent can be a sending agency within the ICPC's definition of that term. Citing
J.D.S. v. Franks, 182 Ariz. 81, 893 P.2d 732 (1995); In re Adoption No. 10087,
324 Md. 394, 597 A.2d 456 (1991). Finally, relying upon the Secretariat Opinion upon which
the circuit court based its decision, John contends that Anne should have filed the
appropriate documentation with the West Virginia ICPC compact administrator. In this
regard, John proposes that Anne, as a sending agency whose domicile was in West Virginia,
should have filed the ICPC forms in West Virginia and that such forms should have been
sent to California, the receiving state.
Typically, when we review a party's challenge to a particular
instruction given by a trial court, we substantially defer to the court's discretion to so
instruct the jury and reverse only if the circuit court has abused its discretion in such
a manner as to constitute reversible harmful error. Evaluating the circuit court's ruling
and the parties' arguments, we note that all participants examining the applicability of
the ICPC to the Canadian adoption of Baby Boy Conaty have focused primarily upon the
application of the statutory language to the facts and circumstances underlying this
controversy. We find, however, that the better approach to determining whether the ICPC
governs the adoption at issue involves looking first to the precise language of the
statute to ascertain whether the drafters, in crafting these procedures, envisioned the
situation with which we are now faced.
Reading the various provisions of the ICPC discussed by the
parties and the circuit court, we note one common similarity: these provisions, in the
main, refer to "party states." For example, Article I, setting forth the
compact's purpose, specifically provides, "It is the purpose and policy of the party
states to cooperate with each other in the interstate placement of children
. . . ." W. Va. Code § 49-2A-1, art. I (emphasis added).
Likewise, the directives for effectuating a proper placement under the compact contemplate
transportation of a child from one party state and his/her placement into another party
state:
No sending agency shall send, bring, or
cause to be sent or brought into any other party state any child for placement in
foster care or as a preliminary to a possible adoption unless the sending agency shall
comply with each and every requirement set forth in this article and with the applicable
laws of the receiving state governing the placement of children therein.
W. Va. Code § 49-2A-1, art. III(a) (emphasis added). Moreover, though not cited by
the parties or the court, Article X, which discusses the manner of construing the compact,
requires such construction to be consistent with the constitutions of the individual party
states:
The provisions of this compact shall be
liberally construed to effectuate the purposes thereof. The provisions of this compact
shall be severable and if any phrase, clause, sentence or provision of this compact is
declared to be contrary to the constitution of any party state or of the United
States or the applicability thereof to any government, agency, person or circumstance is
held invalid, the validity of the remainder of this compact and the applicability thereof
to any government, agency, person or circumstance shall not be affected thereby. If this
compact shall be held contrary to the constitution of any state party thereto, the
compact shall remain in full force and effect as to the remaining states and in full force
and effect as to the state affected as to all severable matters.
W. Va. Code § 49-2A-1, art. X (emphasis added).
From this common thread, we ascertain that the drafters of the
ICPC specifically intended the compact to govern adoptive placements involving party
states. Perhaps most telling of the drafters' intent in this regard is the statement of
enactment introducing the compact's provisions: "The interstate compact on the
placement of children is hereby enacted into law and entered into with all other
jurisdictions legally joining therein in form substantially as follows[.]"
W. Va. Code § 49-2A-1 (emphasis added). We frequently have held that
[w]hen interpreting a statute,
"'[t]he primary object in construing a statute is to ascertain and give effect to the
intent of the Legislature.'" Syllabus of Snider v. West Virginia Department of
Commerce, 190 W. Va. 642, 441 S.E.2d 363 (1994), quoting Smith v. State Workmen's Comp.
Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). To determine the true intent of the
legislature, courts are to examine the statute in its entirety and not select "any
single part, provision, section, sentence, phrase or word." Syllabus Point 3, in
part, Pristavec v. Westfield Ins. Co., 184 W. Va. 331, 400 S.E.2d 575 (1990).
Syl. pt. 2, Mills v. Van Kirk, 192 W. Va. 695, 453 S.E.2d 678 (1994). See also Syl. pt. 4,
State ex rel. Hechler v. Christian Action Network, ___ W. Va. ___, 491 S.E.2d 618
(1997) ("'"In ascertaining legislative intent, effect must be given to each part
of the statute and to the statute as a whole so as to accomplish the general purpose of
the legislation." Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159
W. Va. 108, 219 S.E.2d 361 (1975).' Syl. pt. 3, State ex rel. Fetters v. Hott, 173
W. Va. 502, 318 S.E.2d 446 (1984)."). As we have noted, we find the intent of
the drafters in composing and the Legislature in adopting the ICPC to be the regulation of
adoption proceedings among those jurisdictions which have subscribed to the policies and
procedures delineated therein so as to become party states thereto.
Having determined the legislative intent to be plain, we next
must determine the effect the provisions of the ICPC have on the underlying adoption
proceedings. Once we have ascertained a clear and manifest legislative intent, we next
proceed to review the language of the statutory enactment. In this regard, "'[a]
statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.'
Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)." Syl.
pt. 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997). See also
Syl. pt. 2, West Virginia Department of Health and Human Resources ex rel. Wright v.
David L., 192 W. Va. 663, 453 S.E.2d 646 (1994) ("'"Courts always
endeavor to give effect to the legislative intent, but a statute that is clear and
unambiguous will be applied and not construed." Syllabus Point 1, State v. Elder,
152 W. Va. 571, 165 S.E.2d 108 (1968).' Syllabus Point 1 of State v. Boatright,
184 W. Va. 27, 399 S.E.2d 57 (1990).").
Applying the Compact's plain language to the circumstances
surrounding Baby Boy Conaty's pre-adoptive placement into Canada, we conclude that the
circuit court erred in ruling that the ICPC applied to these proceedings. The plain
language of the Compact, as evidenced by the inherent intent, is to govern adoption
proceedings between jurisdictions that have specifically and affirmatively adopted and
incorporated the provisions of the compact into their own bodies of law. Accordingly, we
hold that the Interstate Compact on the Placement of Children (ICPC), set forth in W. Va.
Code § 49- 2A-1, et seq., does not govern pre-adoptive or adoptive placements into
a state or nation which is not a party state to the ICPC.
While it is apparent that the drafters openly contemplated the possibility of Canada becoming a party state under the compact and deliberately facilitated such a result, see W. Va. Code § 49-2A-1, art. IX, we can locate no authority to indicate that Canada, as a whole, or Alberta, Canada, in particular, had adopted the provisions of the ICPC at the time of the 1991 adoptive placement.See footnote 72 72 As the Compact clearly regulates adoptive placements involving only party states, the provisions of the ICPC do not govern the Canadian adoption of Baby Boy Conaty.See footnote 73 73
Finding that the instructions rendered by the circuit court
pertaining to the applicability and statutory language of the ICPC were erroneous, we next
resolve whether such error so prejudiced the defendants as to constitute reversible
harmful error. We decide it did not. As the circuit court very astutely noted, the primary
purpose of the ICPC is not to provide notice of potential adoption proceedings to
biological parents or to protect such parents' rights to establish or maintain
relationships with their children. Rather, the main objective of the ICPC is to protect
the children involved in multi- jurisdictional adoptive placements to ensure that they
will be placed into safe, secure, and suitable adoptive families. To facilitate this goal,
the ICPC establishes distinct guidelines to be followed in such interstate placements.
While the ICPC may also impliedly protect parents from the wrongful adoption or
pre-adoptive placement of their children, it does not specifically enumerate any such
rights enjoyed by parents. Thus, the circuit court's erroneous instructions reciting the
provisions of the California and West Virginia ICPC enactments and informing the jury as
to their applicability to the underlying adoption proceedings do not rise to the level of
reversible harmful error. Any inference of the defendants' fraud or tortious conduct
affecting John's rights that the jury could have deduced from these instructions would
have been slight given the ICPC's primary concern with the welfare and well-being of
adopted and pre-adoptive children.
Moreover, even if the jury based its determination of liability
for fraud, in part, on these instructions, such reliance does not mandate reversal. Much
as we noted with respect to the ex parte preliminary injunction, the voluminous
record is replete with evidence of fraud, exclusive of these instructions, upon which the
jury could have based its liability findings. In addition to the evidence of wrongdoing by
defendants Leavitt and Anne discussed above, the evidence indicates the remaining
defendants participated in the fraudulent concealment of information pertaining to Baby
Boy Conaty's birth and pre- adoptive whereabouts, and that there existed a concerted mass
effort to interfere with John's parental rights. Furthermore, given the extremely lengthy
jury charge in this case, we cannot find, nor do we have any reason to believe, that
either the circuit court or the jury placed undue emphasis on these particular
instructions. Finding no reversible harmful error with respect to the ICPC instructions,
we now shift our focus to the defendants' assignment of error regarding the circuit
court's UCCJA instructions.
b. Uniform Child Custody Jurisdiction
Act (UCCJA)
The defendants also assert that the circuit court should not have
permitted the jury to consider portions of the UCCJASee
footnote 74 74 as this law is inapplicable to the facts and circumstances
of this case. The circuit court based its decision that the UCCJA pertained to Anne's
adoptive placement of Baby Boy Conaty into Canada upon W. Va. Code § 48- 10-15(a)(2)
(1981) (Repl. Vol. 1996), which provides "[i]f a court of another state has made a
custody decree, a court of this State shall not modify that decree unless . . .
(2) the court of this State has jurisdiction." Explaining its reasoning, the court
stated as follows:
I found that it [the UCCJA] applied
because it was in the best interest of the child and the parents, because they had a
significant connection with West Virginia and that there was available in West Virginia
substantial evidence concerning the child's present or future care, protection, training
and personal relationships.
In accord with this ruling, the circuit court granted, as
amended, Plaintiff's Instructions Numbers 56 and 57 which quoted extensively from the
California and West Virginia enactments of the UCCJA.See footnote 75 75 While the record reflects the
defendants' specific objection to certain language in Plaintiff's Instruction Number 56,
pertaining to the California UCCJA, the circuit court excised this challenged language
from the amended instruction given to the jury. No other objection by the defendants to
these two instructions appears on the record of the circuit court's decision to grant the
same. The circuit court also granted, over the defendants' specific objection, Plaintiff's
Instruction Number 55 (as amended), which defined the term "home state" pursuant
to the UCCJA construction thereof and instructed the jury that it could find that either
West Virginia or California was the home state of Baby Boy Conaty:
The Court instructs the jury that for
purposes of the UCCJA, a state remains the "home state"[See footnote 76 76 ] of
a child for a reasonable period of time even if the child has been concealed in another
state by one of the parents.
Accordingly, if you find that John
Kessel and Anne Conaty had significant ties with the State of West Virginia, and that
evidence regarding the child's future care, protection, training, and personal
relationships, which normally comes from the child's parents, from other persons who might
be entrusted with the care of the child, and from persons who can testify about the
competence of the parent as custodian, were located in West Virginia, the fact that the
child was present in California is of no consequence, and West Virginia was still the
"home state" under the Uniform Child Custody Jurisdiction Act.
On the other hand, if you find by a
preponderance of the evidence that John Kessel and Anne Conaty had significant ties with
the State of California, and that evidence regarding the child's future care, protection,
training, and personal relationships, which normally comes from the child's parents, from
other persons who might be entrusted with the care of the child, and from persons who can
testify about the competence of the parent as custodian, were located in California, then
you may find that California was the "home state" under the UCCJA.
The defendants suggest to this Court that the circuit court
erred in so instructing the jury given the inapplicability of the UCCJA to the Canadian
adoption proceedings. They propose that because the adoption was finalized in Canada, and
because Canada has not adopted the UCCJA, the UCCJA does not apply to the Canadian
adoption proceedings. The defendants also contend, as they did with respect to the ICPC
instructions, that the court's decision to give the UCCJA instructions could have created
a question in the jury's mind as to the propriety of the Canadian adoption despite the
decision of the Alberta court to ratify the proposed adoptive placement.
Furthermore, the defendants complain that the UCCJA simply does
not apply to the proceedings at hand as there was no interstate or interjurisdictional
custody dispute. In support of this position, the defendants indicate that all of our
prior decisions concerning the applicability of the UCCJA concerned custody disputes
wherein the contestants resided in two different jurisdictions. Citing Rock v.
Rock, 197 W. Va. 448, 475 S.E.2d 540 (1996); In re Brandon L.E., 183
W. Va. 113, 394 S.E.2d 515 (1990); Escudero v. Henry, 183 W. Va. 370, 395 S.E.2d 793 (1990); Brockman v. Hegner, 173 W. Va. 431, 317 S.E.2d 516 (1984).
Furthermore, the defendants suggest that the UCCJA only governs custody disputes
pertaining to living children, not those who have not yet been born. Citing In
re Wilner, 158 Misc. 2d 579, 582, 601 N.Y.S.2d 518, 521 (1993) ("The key
definition, of 'home state', makes it clear that the Uniform [Child Custody Jurisdiction]
Act was designed to apply only to children who have been born."). The defendants thus
contend that since defendant Anne had the right to unilaterally place her child for
adoption, once the adoptive placement had been completed, Anne was no longer a proper
party to any custody proceedings brought by John. Therefore, the defendants contend that
the circuit court erred in finding the UCCJA applicable to this case.
John responds by claiming that the circuit court properly
determined the UCCJA to be applicable to the proceedings underlying this appeal. He
asserts that once Anne decided to relinquish her parental rights to Baby Boy Conaty, he,
as the child's other biological parent, had a superior right to his son's custody as
against all third parties. Citing Caruso v. Superior Court, 100 Ariz. 167,
412 P.2d 463 (1966). Thus, John claims that Anne's pre-adoptive placement of their child
with the Canadian couple entitled him to maintain interjurisdictional custody proceedings,
to which the UCCJA applied. Accordingly, John contends that his inverse paternity action,
instituted in the Circuit Court of Cabell County, West Virginia, constituted such a
custody proceeding.
John also maintains that, pursuant to the UCCJA, West Virginia
was the home state of Baby Boy Conaty given that both of his parents were West Virginia
residents and West Virginia had significant other contacts with the child. John
additionally suggests that a jurisdiction may remain the home state of a child even where
he/she has been absent from that jurisdiction by way of abduction or concealment
therefrom. Citing W. Va. Code §§ 48-10-2(5) (1981) (Repl. Vol. 1996),
48-10-3(a)(1) (1981) (Repl. Vol. 1996); Sams v. Boston, 181 W. Va. 706, 717,
384 S.E.2d 151, 162 (1989). See also McAtee v. McAtee, 174 W. Va. 129,
136, 323 S.E.2d 611, 618 (1984) (stating that "the UCCJA was designed to cover
situations . . . where a child is surreptitiously removed to another state prior
to any custody litigation" (citation omitted)); Lemley v. Barr, 176
W. Va. 378, 385, 343 S.E.2d 101, 108 (1986) ("The resolution of cases must not
provide incentives for those likely to take the law into their own hands. Thus, those who
obtain custody of children unlawfully, particularly by kidnaping, violence, or flight from
the jurisdiction of the courts, must be deterred." (internal quotations and citation
omitted)).
John urges that West Virginia, as the home state, retained
jurisdiction to determine all custody issues regarding the boy. Because Anne fled with the
child to another jurisdiction, John claims the appropriate remedy, which was not observed
here, would have been for the other jurisdiction to decline to entertain the custody suit.See footnote 77 77 Citing
W. Va. Code § 48-10-8(a) (1981) (Repl. Vol. 1996) ("If the petitioner for an
initial decree has wrongfully taken the child from another state or has engaged in similar
reprehensible conduct, the court [in the asylum state] may decline to exercise
jurisdiction if this is just and proper under the circumstances."); Sams v. Boston,
181 W. Va. 706, 716, 384 S.E.2d 151, 161 (1989) ("We are not persuaded by the
suggestion that a court in the state to which the children were abducted should be allowed
to try the custody case solely because the children's welfare is the controlling guide.
'The court in State A [from which the children were abducted] knows as well as the court
in State B [to which the children were abducted] that the child's welfare is the
controlling guide.'" (quoting Reed v. High, 254 Pa. Super. 367, 370, 385 A.2d 1384, 1385 (1978))).
Moreover, John argues that the UCCJA is applicable to adoption
proceedings because such proceedings affect the custody of the child's parents by
permanently terminating such custodial rights. Finally, John asserts that the fact that
Canada has not enacted or otherwise adopted the provisions of the UCCJA does not render
this body of law inapplicable to the underlying custody dispute. W. Va. Code §
48-10-24 (1981) (Repl. Vol. 1996) and the corresponding California provision, Cal. Family
Code § 5172 (1973) (Family Code Appendix to Main Vol. 1994) [current Cal. Family Code §
3424 (1992) (Main Vol. 1994)], specifically anticipate the international applicability of
the UCCJA to multinational custody disputes. In the same manner, John contends that,
despite the nonexistence of the precise language of the UCCJA in Canadian law, defendants
Anne and Leavitt were required to comply with the law's mandate to report to the court any
information pertaining to custody litigation pending in another jurisdiction. Citing
W. Va. Code § 48-10-9 (1981) (Repl. Vol. 1996). Accord Cal. Family Code §
5158 (1973, amended 1992) (Family Code Appendix to Main Vol. 1994) [current Cal. Family
Code § 3409 (1993) (Main Vol. 1994)]. In sum, John states that the failure of the
defendants to provide such information to the court further warranted the circuit court's
ruling that the UCCJA governed the underlying custody dispute and its decision to instruct
the jury accordingly.
In reviewing the defendants' challenges to the UCCJA
instructions, we note at the outset that although a "'trial court . . . has
broad discretion in formulating its charge to the jury, so long as the charge accurately
reflects the law,'" Parham v. Horace Mann Ins. Co., 200 W. Va. 609, 619,
490 S.E.2d 696, 706 (1997) (quoting State v. Bradshaw, 193 W. Va. 519, 543,
457 S.E.2d 456, 480 (1995)), we review de novo the "legal correctness of a
jury instruction," Parham, id. (citing Skaggs v. Elk Run Coal Co.,
Inc., 198 W. Va. 51, 63, 479 S.E.2d 561, 573 (1996)). Thus, as we did above with
respect to the ICPC instructions, we look first to the plain language of the UCCJA before
mechanically applying its provisions to the facts and circumstances of the adoption
proceedings in an effort to determine the propriety of the UCCJA instructions.
An examination of the UCCJA provisions suggests that the Act is
designed primarily to regulate interstate or interjurisdictional child custody disputes.
In W. Va. Code § 48-10-1, the Act's purpose is explained as including the
"[a]void[ance of] jurisdictional competition and conflict with courts of other states
in matters of child custody"; the "[a]ssur[ance] that litigation
concerning the custody of a child takes place ordinarily in the state with which
the child and his family have the closest connection"; the "[d]iscourage[ment
of] continuing controversies over child custody"; and the "[d]eter[rence
of] abductions and other unilateral removals of children undertaken to obtain custody
awards." W. Va. Code § 48-10-1(a)(1,3,4,5) (emphasis added).
Facilitating the implementation of its provisions, the UCCJA
supplies definitions of terms crucial to the process of child custody litigation. The term
"custody determination" contemplates "a court decision and court orders and
instructions providing for the custody of a child, including visitation rights; it does
not include a decision relating to child support or any other monetary obligation of any
person." W. Va. Code § 48-10- 2(2). Likewise, the phrase "'[c]ustody
proceeding' includes proceedings in which a custody determination is one of several
issues, such as an action for divorce or separation, and includes child neglect and
dependency proceedings[.]" W. Va. Code § 48-10-2(3). Similarly, the words
"decree" or "custody decree" as they are employed by the UCCJA denote
"a custody determination contained in a judicial decree or order made in a custody
proceeding and include[] an initial decree and a modification decree." W. Va.
Code § 48- 10-2(4).
Throughout the remainder of the UCCJA, references in the
various provisions to "custody determinations," "custody proceedings,"
and the like, further indicate the plain legislative intent of the drafters to limit the
applicability of the Act to the facile and orderly resolution of interjurisdictional
custody disputes. See, e.g., W. Va. Code §§ 48-10-3 (describing a court's
"jurisdiction to make a child custody determination"); 48-10-6 (1981) (Repl.
Vol. 1996) (prohibiting a court from assuming jurisdiction where "a proceeding
concerning the custody of the child was pending in a court of another state");
48-10-7 (1981) (Repl. Vol. 1996) (defining circumstances in which court may decline to
exercise jurisdiction where "it finds that it is an inconvenient forum to make a
custody determination"); 48-10-9 (specifying information that "[e]very party in
a custody proceeding" must incorporate in his/her first pleading). Determining the
intent of the drafters to be plain, we proceed to an application of the Act's plain
language.
As is evidenced by our review of the UCCJA in ascertaining the
legislative intent, we find the language of the UCCJA to be clear and unambiguous in its
delineation and regulation of the procedures to be followed when child custody disputes
cross jurisdictional boundaries. "Where the language of a statute is clear and
without ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation." Syl. pt. 5, in part, Walker v. West Virginia Ethics Comm'n,
___ W. Va. ___, 492 S.E.2d 167 (1997) (internal quotations and citations omitted).
Applying the UCCJA to the facts of John's underlying inverse
paternity action and the circumstances concerning Baby Boy Conaty's pre-adoptive placement
and ensuing adoption, we are unable to find any indication that a custody dispute or
proceeding was in place to which the UCCJA would have applied. John launched his efforts
to ascertain whether he had any parental rights vis-a-vis Anne's then-unborn child by
filing an inverse paternity action in the Circuit Court of Cabell County. W. Va. Code
§ 48A-6- 1(a) (1989) (Cum. Supp. 1991), which was in effect at the relevant time,
permitted the maintenance of "[a] civil action to establish the paternity of a child
and to obtain an order of support for the child[.]"See footnote 78 78 Consistent with this statute, John's
"Petition to Establish Paternity" requested the following judicial relief:
1. An Order compelling the parties and the
child to submit to medical testing to confirm the paternity of [John];
2. A finding of fact based upon the
medical testing which reflects whether or not he is the natural father of the child;
3. An Order establishing his paternity
of the child, if such paternity is confirmed through medical testing, and establishing his
rights flowing from such a determination; and
4. Such other relief as the Court deems
just.
Thereafter, John requested the circuit court to enter a default
judgment of his paternity of Baby Boy Conaty. In its order, the circuit court
"ORDERED that John Woodruff Kessel is legally determined pursuant to West Virginia
Code Section 48A-6-1(c) to be the natural father of the infant child born to Anne Gilmore
Conaty on or about July 24, 1991 with all the rights and obligations flowing
therefrom." The effect of such a paternity establishment is discussed in W. Va.
Code § 48A-6-4 (1989) (Cum. Supp. 1991): "if after a trial on the merits, the court
or jury shall find, by clear and convincing evidence that the man is the father of the
child, the court shall order support in accordance with the provisions of this
chapter."See footnote 79 79
Both the statute granting initial permission to request a paternity determination, W Va. Code § 48A-6-1(a), and the provision which attaches an order of support to the establishment of paternity, W. Va. Code § 48A-6-4, suggest that the purpose of a paternity action is to determine whether a certain man is legally obligated to provide support for a particular child. In this respect, rather than pertaining to a custody determination or decree, a paternity action is more in the nature of an action for support. In describing the proceedings contemplated to be within the province of the UCCJA, W. Va. Code § 48-10-2(2) specifically excludes from the Act's jurisdiction "a decision relating to child support or any other monetary obligation of any person." We therefore hold that the Uniform Child Custody Jurisdiction Act (UCCJA), W. Va. Code § 48-10-1, et seq., does not govern actions whose main purpose is the establishment of paternity as such actions are generally in the nature of support proceedings which are specifically excluded from the governance of the UCCJA. W. Va. Code § 48A-6-4 (1989) (Cum. Supp. 1991); § 48-10-2 (1981) (Repl. Vol. 1996). Thus, we conclude that the UCCJA did not apply or otherwise govern the paternity or adoption proceedings concerning Baby Boy Conaty.See footnote 80 80 Accordingly, we find that the circuit court erred by instructing the jury as to the provisions of the UCCJA.See footnote 81 81
While we have determined that the circuit court incorrectly
instructed the jury with respect to the UCCJA, we nonetheless find that no reversible
error attended these improper instructions. As we noted above with respect to the ICPC,
the primary purpose of the UCCJA is to protect the subjects of child custody disputes, i.e.,
the children whose custody is to be determined. The primary emphasis being the children,
the rights of parents to the custody of their children is given substantially less
emphasis in the language of the individual UCCJA provisions. Therefore, permitting the
jury to consider the quoted text from the West Virginia and California UCCJA enactments
would engender, primarily, a determination that the defendants' conduct had infringed upon
the rights of Baby Boy Conaty to receive an expedient determination of his custody, more
so than a finding that such conduct had impermissibly violated John's rights to establish
and maintain a parental relationship with his son.
Furthermore, as we have noted previously, even if the jury did
derive from these instructions some basis upon which to hold the defendants accountable
for fraud, the record is filled with other evidence on which such liability could have
been grounded. Moreover, reviewing the jury charge in its entirety, "the instructions
given as a whole [were] accurate and fair to both parties." Syl. pt. 6, Tennant v.
Marion Health Care Found., Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995). Finally, we
note that the jury instructions given with respect to the UCCJA were much less onerous
than were those instructive of the ICPC in that the UCCJA instructions did not contain any
specific directions indicating that the court determined these provisions to be applicable
to the parties' controversy.
3. Parent's Right to Custody
The defendants additionally maintain that the circuit court erred
by instructing the jury that a parent has a natural right to the custody of his/her child
absent a finding that the parent is unfit to have such custody.See footnote 82 82 In granting this instruction, the
circuit court presumably referred to this Court's prior holding in Syllabus point 2 of Hammack
v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975):
"A parent has the natural right to
the custody of his or her infant child and, unless the parent is an unfit person because
of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has
waived such right, or by agreement or otherwise has permanently transferred, relinquished
or surrendered such custody, the right of the parent to the custody of his or her infant
child will be recognized and enforced by the courts." Syllabus, State ex rel.
Kiger v. Hancock, 153 W. Va. 404[,] 168 S.E.2d [798] (1969).
Although the instruction accurately reflects the law of this
State, the defendants urge that Hammack does not apply to this case because Hammack
involved a situation in which the father had developed a parent-child relationship with
his child, whereas John never established such a relationship with Baby Boy Conaty. The
defendants stress that the existence of a parent-child relationship is essential to the
protection of an unwed biological father's right to the custody of his child. See,
e.g., Lehr v. Robertson, 463 U.S. 248, 262-63, 103 S. Ct. 2985, 2993-94, 77 L. Ed. 2d 614, 627 (1983) (requiring biological father to "grasp[ the]
opportunity" to develop relationship with his child in order to receive
constitutionally protected custodial rights); Syl. pt. 2, State ex rel. Roy Allen S. v.
Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996) ("Although an unwed father's
biological link to his child does not, in and of itself, guarantee him a constitutional
stake in his relationship with that child, such a link combined with a substantial
parent-child relationship will do so. When an unwed father demonstrates a full commitment
to the responsibilities of parenthood by coming forward to participate in the rearing of
his child, his interest in personal contact with his child acquires substantial protection
under the Due Process Clause in Section 10 of Article III of the West Virginia
Constitution."See footnote 83 83 ).
Because John did not establish a parent-child relationship with Baby Boy Conaty, the
defendants argue he cannot enforce his custodial rights. Hence, the circuit court's
decision to give this instruction was erroneous.
John maintains that the circuit court properly instructed the
jury as to the custodial rights of a parent. This instruction informed the jury that John
had a natural right to the custody of his child provided he had not waived his right to
custody or been determined to be unfit to have custody. Thus, absent a finding of
unfitness, John possessed an enforceable custodial right. Citing Syl. pt. 2, Simmons
v. Comer, 190 W. Va. 350, 438 S.E.2d 530 (1993) (quoting Syl. pt. 2, Hammack,
158 W. Va. 343, 211 S.E.2d 118). John also acknowledges that various cases require an
unwed biological father to have "grasped the opportunity" to establish a
parent-child relationship with his child as a prerequisite to asserting his custodial
rights. See, e.g., Lehr v. Robertson, 463 U.S. at 262-63, 103 S. Ct. at
2993-94, 77 L. Ed. 2d at 627; Syl. pt. 2, State ex rel. Roy Allen S. v. Stone, 196 W.
Va. 624, 474 S.E.2d 554. However, John insists such precedents do not render improper the
instruction here challenged. Rather, the record evidence suggests that John's efforts to
establish a parent-child relationship with Baby Boy Conaty were frustrated by the
defendants' concerted actions to prevent such a relationship. John contends that because
he was precluded from achieving a meaningful relationship with his son, the circuit court
properly instructed the jury as to the custodial rights he would have been entitled to
assert had he been allowed by the defendants to do so. Citing Jermstad v.
McNelis, 210 Cal. App. 3d 528, 533, 258 Cal. Rptr. 519, 520 (1989)
(recognizing that a "natural father [has] a parental preference to the custody of his
child where . . . the father has diligently pursued an opportunity to establish
a protected custodial relationship"); In re Adoption of B.G.S., 556
So. 2d 545, 559 (La. 1990) (finding unwed biological father had satisfied requirement
of establishing parent-child relationship with his newborn daughter where he had
"grasped the opportunity to commence a relationship with his child"
(emphasis added)).
Traditionally, the biological mother of a child born out of
wedlock had superior rights to the child's custody as against every other person claiming
such custodial rights, including the child's biological father. 3A Michie's Jur. Bastardy
§ 8, at 174 (1996). See also B. Finberg, Annotation, Right of Mother to Custody
of Illegitimate Child, 98 A.L.R.2d 417, § 4[b], at 431 (1964). Where the child's
mother was unable or unwilling to assume the child's custody, though, typically the
child's father was viewed as the person to whom custody next would be awarded. 3A Michie's
Jur. Bastardy § 8, at 175; Finberg, 98 A.L.R.2d 417, § 4[b], at 431.
Nevertheless, the jurisprudential history of this State indicates that we have abandoned these gender preferences and have long recognized the rights of both parents, mothers and fathers alike, to the custody of their children, provided the parents are fit to have custody and have not otherwise transferred or abandoned their custodial rights.See footnote 84 84
Superior to any rights of parents to the custody of their own
children, however, is the overriding consideration of the child's best interests. Thus,
the natural right of parents to the custody of their children is always tempered with the
courts' overriding concern for the well-being of the children involved. Syl. pt. 7, Matter
of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995) ("Cases involving
children must be decided not just in the context of competing sets of adults' rights, but
also with a regard for the rights of the child(ren)."); Syl. pt. 8, in part, In re
Willis, 157 W. Va. 225, 207 S.E.2d 129 ("[T]he welfare of the infant is the
polar star by which the discretion of the court is to be guided in making its award of
legal custody."); Syl. pt. 2, State ex rel. Lipscomb v. Joplin, 131
W. Va. 302, 47 S.E.2d 221 (same); Syl., in part, Reynolds v. Reynolds, 109
W. Va. 513, 155 S.E. 652 (1930) (same); Pierce v. Jeffries, 103 W. Va.
410, 413-14, 137 S.E. 651, 652 (1927) ("It is well settled in this state that the
welfare of the child is of paramount importance in determining who is entitled to its
custody, and that the welfare of the child is to be regarded more than the technical
rights of the parent."); State ex rel. Neider v. Reuff, 29 W. Va. 751, 757, 2 S.E. 801, 803 (1887) ("[T]his right to the custody of children, given by nature and
by God to parents, must give way to the permanent interest of the child[.]" (citation
omitted)).
The issue presented by the jury instruction challenged in this particular assignment of error is somewhat novel. While we have determined that unwed biological fathers, standing alone, have certain protected rights vis-a-vis their minor children,See footnote 85 85 we have not yet addressed the situation presented by this appeal: the rights enjoyed by both an unwed biological mother and an unwed biological father where they have conflicting views as to their minor child's best interests and ultimate custodial placement. Further complicating our resolution of this issue is the convoluted factual scenario of this case.
Despite our prior recognition of a precise standard by which an unwed biological father
must fully accept and assume the parental responsibilities of raising his child in order
to establish a protected custodial right to his child, see Syl. pt. 2, State ex
rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554, the facts presently
before us do not fit neatly into this procedural framework. While the evidence presented
below suggests that John attempted to assert his parental rights by opposing the adoption
of Baby Boy Conaty and by trying to ascertain his child's whereabouts, the evidence also
reflects, as noted above, the defendants' actions endeavoring to prevent John from
asserting his rights or from obtaining crucial information about his son.
Faced with this unique situation, we reiterate our decision,
stated above, that once a child has been born, both of the child's unwed biological
parents enjoy a right to establish a parent-child relationship with their child.
Associated with this right, as the jurisprudential history of this state suggests, is the
right of either unwed biological parent to seek the custody of his/her child. In order to
protect his parental rights, though, an unwed biological father must demonstrate his
commitment to parenting his child by participating in his/her care, rearing, and support,
and by establishing a meaningful relationship with him/her. From the evidence, the jury
could have concluded that John did, in fact, take steps toward assuming these
responsibilities and commencing a relationship with his son by searching for Anne prior to
their child's birth; attempting to prevent Anne's adoptive placement of their child;
undertaking to locate his son soon after his birth; and intervening in his son's Canadian
adoption proceedings. Perhaps more compelling than John's initial steps to establish a
relationship with his son, though, is the evidence indicating that John's attempts to form
such a relationship and to assert his custodial rights were often hindered by the
defendants' actions opposing any participation by John in his child's life.
Given John's efforts to assume his parental duties and to
commence a relationship with Baby Boy Conaty in order to assert his custodial rights, we
find that the circuit court did not err in instructing the jury as to the natural right of
a parent to the custody of his/her child. The language of the contested jury instruction
correctly informed the jury of the law governing the custodial rights of parentsSee footnote 86 86 and was not
inconsistent with our prior decisional law regarding parental rights. Hence, the
instruction not being erroneous, we defer to the trial court's discretion in granting the
instruction.
4. Due Process and Equal Protection Considerations
The defendants assert further that the circuit court erred by
instructing the jurySee footnote 87 87
as to John's constitutional rights to due processSee footnote 88 88 and equal protectionSee footnote 89 89 of the law.
During the proceedings below, the circuit court granted summary judgment to the
defendants with regard to John's civil rights claims.See footnote 90 90 Despite this ruling, the circuit
court subsequently, and inconsistently, instructed the jury, over the specifically stated
objections of the defendants, that it could consider the defendants' intent to deprive
John of his constitutional rights to due process and equal protection in assessing the
defendants' motive, intent, and state of mind to commit fraud and tortious interference.
John responds that the defendants effectively deprived him of
the protections of the United States Constitution by placing Baby Boy Conaty for adoption
in Canada. Thus, he asserts that the circuit court properly instructed the jury that it
could consider such deprivations in ascertaining the defendants' intention to commit the
alleged torts. John contends further that the court also properly cautioned the jury that
it could not base its findings of liability upon the defendants' violation of John's
constitutional rights.
As noted above, we review for an abuse of discretion when
deciding challenges to the giving of a specific jury instruction by a trial court. With
respect to these particular instructions, we note at the outset that prior jurisprudence
in this arena has generally required, as a prerequisite to finding a violation of an
individual's federal due process or equal protection rights,See footnote 91 91 some form of state action performed
by a state actor. See generally Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936, 102 S. Ct. 2744, 2753, 73 L. Ed. 2d 482, 495 (1982) (noting that
Fourteenth Amendment to United States Constitution protects only against deprivations by
the State and "offers no shield" against private conduct (internal quotations
and citation omitted)). For example, in Imperial Colliery Co. v. Fout, 179
W. Va. 776, 781 n.13, 373 S.E.2d 489, 494 n.13 (1988), we noted:
It is now settled law that the[] [Fourteenth] Amendment[] [to the
United States Constitution] protect[s] only against "state action", and not
against "[i]ndividual invasion of individual rights." Civil Rights Cases,
109 U.S. 3, 11, 3 S. Ct. 18, 2[1], 27 L. Ed. 835, 839 (1883)[.] Where the
conduct is that of a private entity, "state action" may be found only where the
acts in question may fairly be attributed to the state.
(Additional citations omitted). More specifically, we have recognized that "'private
conduct is not controlled by the Fourteenth Amendment due process clause unless
significantly intertwined with state involvement.'" Dennison v. Jack, 172
W. Va. 147, 153, 304 S.E.2d 300, 306 (1983) (quoting Kennebec, Inc. v. Bank of the
West, 88 Wash. 2d 718, 721, 565 P.2d 812, 814 (1977) (en banc)). Similarly, in the
realm of equal protection we have indicated that "[t]he violation of the equal
protection standard usually arises from state action[.]" Pauley v. Kelly, 162
W. Va. 672, 712, 255 S.E.2d 859, 880 (1979) (citations omitted). See also Syl.
pt. 2, Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W. Va.
454, 388 S.E.2d 480 (1989) (same).
Having established a requirement of state action, we are unable
to say that the due process and equal protection instructions given in this case
constituted a proper exercise of the trial court's discretion. First, as indicated above,
none of the defendants was a state actor. In Syllabus point 3, of West Virginia Trust
Fund, Inc. v. Bailey, 199 W. Va. 463, 485 S.E.2d 407 (1997), we held: "[t]o
determine if an entity is a state actor subject to constitutional duties or restrictions,
the nature and extent of state involvement must be evaluated so as to determine if its
actions are fairly attributable to the state." See also Syl. pt. 8, Queen
v. West Virginia Univ. Hosp., Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987)
(limiting determination of state actor status to due process issues). Under the facts of
the case presently before us, we cannot find that the defendants were state actors within
the contemplation of our holding in West Virginia Trust Fund, Inc. v. Bailey. On
appeal to this Court, John does not indicate and the record does not evidence that any of
the defendants' actions were so closely intertwined with state interests as to render them
state actors conducting themselves in accordance with the State.
As no state actors were involved in this controversy, neither
can we find a violation of the above-mentioned constitutional rights as a result of state
action. Typically, state action connotes some type of activity performed directly by the
state or by an entity so closely affiliated with the state so as to necessitate a finding
of state action. See, e.g., 21A Michie's Jur. Words and Phrases 380 (1987)
(defining "state action" as "'action taken by the State or a political
subdivision, or by a person or persons acting for the State or political subdivision, or
pursuant to their authority or direction, or in obedience to their requirement'"
(quoting Brown v. City of Richmond, 204 Va. 471, 479, 132 S.E.2d 495, 500 (1963)
(citations omitted))). Given the facts before us, we can find no evidence tending to
indicate that the defendants' conduct amounted to state action, or from which the jury
could have found such state action. Each of the defendants acted in his/her own individual
capacity. None of the defendants' conduct suggested an association or involvement with the
State in carrying out his/her individual activities. Accordingly, the instructions
alleging that the defendants violated John's due process and equal protection rights are
unsupported by any applicable law and constitute an abuse of the trial court's discretion.
This conclusion, though, is not the end of our inquiry. An
erroneous jury instruction necessitates a reversal of the entire jury verdict only if such
error rises to the level of harmful error. See supra Section II.C. In the present
case, we find the error to be harmless as the remainder of the jury instructions, viewed
in their entirety, correctly instructed the jury on the applicable law, and no special
emphasis was placed upon these two instructions by the trial court or the parties.
Moreover, the defendants were not prejudiced by the giving of these erroneous instructions
since the instructions merely indicated that the jury could infer from these alleged
constitutional violations that the defendants had committed the tortious acts of which
they were accused, rather than directly stating that a finding that the defendants
committed such constitutional violations necessitated a finding that they also had acted
tortiously. As we have stated above, the record is replete with evidence from which the
jury could have found the defendants liable for fraud. Thus, the effect of the erroneous
instructions was relatively minimal given the voluminous incriminating evidence of record.
5. Contempt of Court Orders and Legal Ethics Rules
Finally, the defendants contend that it was error for the circuit
court to give the jury various instructions defining "contempt of court"See footnote 92 92 and reciting
numerous ethical standards governing the conduct of attorneys.See footnote 93 93 The defendants challenge the
propriety of the contempt instructions, noting particularly the fact that all of the
defendants who earlier had been found to be in contempt later purged themselves of these
charges. During the course of the inverse paternity litigation, the circuit court held
defendant Anne to be in contempt for refusing to sign authorizations to release her
California medical records and found defendants Dr. and Mrs. Conaty to be in contempt for
failing to appear for their depositions.See
footnote 94 94 Because each of these defendants subsequently purged
him/herself of contempt and because John cannot base his monetary recovery upon these
contempt charges, the defendants maintain that these instructions were erroneous. Citing
Larson v. Dunn, 460 N.W.2d 39, 46 (Minn. 1990) (refusing to recognize claim for
tortious interference with parental relationship and suggesting that appropriate remedy
for defendants' actions in violating court order would be to hold defendants in contempt
of court, rather than permitting plaintiff to recover damages).
The defendants also challenge the propriety of the circuit
court's instructions which provided the jury with various ethical standards governing the
conduct of attorneys. In this regard, the defendants claim that these instructions were
erroneous because neither defendant Leavitt nor defendant Brian have been charged with
ethical violations arising from the adoption of Baby Boy Conaty and because, even if
ethics charges had been brought against these defendants, John could not use these charges
as a basis for recovery. Citing W. Va. R. Prof. Conduct, Scope
("Violation of a Rule should not give rise to a cause of action nor should it create
any presumption that a legal duty has been breached. . . . The[] [Rules]
are not designed to be a basis for civil liability.").
John agrees with the defendants' position that neither a
finding of contempt of court nor a violation of a legal ethics standard can provide a
basis for money damages. Nevertheless, John submits that these instructions were not
erroneously given because they correctly stated the applicable law and properly limited
the jury's consideration of the alleged violations to a determination of the defendants'
"state of mind, intent or malice," thereby ensuring that the jury would not
consider such violations as a basis for imposing liability. Citing United States
v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) (recognizing "the relevance of
ethical and professional standards of behavior for lawyers in evaluating criminal
intent" (citation omitted)); United States v. Machi, 811 F.2d 991, 1000-02
(7th Cir. 1987) (permitting rules of ethical conduct governing attorneys to be introduced
into evidence as indicative of defendant attorney's state of mind and interest in criminal
scheme; noting with approval efforts during trial to caution jury against inferring that
defendant attorney was guilty of criminal offense simply because he may have violated
ethical rules governing conduct of attorneys); United States v. DeLucca, 630 F.2d 294, 301 (5th Cir. 1980) (ruling "it is appropriate to consider the canons of
professional responsibility as a factor in determining [a defendant attorney's] willing
participation in crime" (footnote omitted)).
As we noted above, a trial court has broad discretion in
formulating its charge to the jury "so long as the instructions given as a whole are
accurate and fair to both parties." Syl. pt. 6, in part, Tennant v. Marion Health
Care Found., Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995). Still, the jury
instructions "must be a correct statement of the law and supported by the
evidence." Syl. pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Accordingly, when determining whether the lower court abused its
discretion in instructing the jury, we examine "whether the charge, reviewed as a
whole, sufficiently instructed the jury so they understood the issues involved and were
not mislead [sic] by the law." Id.
Reviewing the record before us and the parties' arguments, we find that the circuit court did not err in giving the challenged contempt and ethics instructions. First, the contempt instructions did nothing more than correctly instruct the jury as to the legal definitions of contempt. See State v. Hansford, 43 W. Va. 773, 28 S.E. 791 (1897) (defining contempt (Plaintiff's Instruction No. 36)); Eastern Assoc. Coal Corp. v. Doe, 159 W. Va. 200, 220 S.E.2d 672 (1975) (explaining enjoined party's duty to obey injunction until it has been invalidated by court (Plaintiff's Instruction No. 38 (as amended))); State v. Ralphsnyder, 34 W. Va. 352, 12 S.E. 721 (1890) (recognizing manner in which attorney may be held in contempt (Plaintiff's Instruction No. 40 (as amended))). The inclusion of these instructions defining contempt thus permitted the jury to evaluate the evidence of contempt presented at trial and to place such evidence in the proper perspective when assessing the defendants' motivation for their actions.
Second, the ethics instructions accurately restated certain
standards of ethical behavior with which defendants Leavitt and Brian, as a result of
their stature as attorneys, are required to comply. See generally Cal. R. Prof.
Conduct, Rule 1-100(A) ("These rules together with any standards adopted by the Board
of Governors pursuant to these rules shall be binding upon all members of the State
Bar."); W. Va. R. Prof. Conduct, Preamble ("Every lawyer is
responsible for observance of the Rules of Professional Conduct."). Moreover, the
ethics instructions properly limited the jury's consideration of any alleged unethical
behavior as being indicative only of the defendant attorneys' "state of mind, intent
or malice." In this manner, the circuit court sought to prevent the jury from
improperly considering such evidence as a basis for imposing liability upon these
defendants for fraud or tortious interference. See W. Va. R. Prof. Conduct, Scope
(stating that professional rules "are not designed to be a basis for civil
liability"); First Nat'l Bank in Marlinton v. Blackhurst, 176 W. Va. 472,
478, 345 S.E.2d 567, 574 (1986) (recognizing that "the usual remedy for a violation
of the West Virginia Code of Professional Responsibility is a disciplinary
proceeding against the attorney"). See also In re Palumbo Family Ltd.
Partnership, 182 B.R. 447, 468 (Bankr. E.D. Va. 1995) (memorandum opinion)
(determining that attorney's violation of Virginia Code of Professional Responsibility
does not give rise to private cause of action). For these reasons, we find that the
circuit court did not abuse its discretion in formulating its jury charge so as to include
the contempt and ethics instructions.
D.
Attorney-Client Privilege and Crime or Fraud Exception
The defendants next argue that the circuit court erred by ruling
that the crime or fraud exception applied to extinguish the attorney-client privilege in
this case. During pre-trial discovery, the circuit court ruled that the attorney-client
privilege between defendants Leavitt and Anne did not apply because the plaintiffs had
alleged a cause of action for fraud against these defendants with respect to their actions
in placing Baby Boy Conaty for adoption. As a result of this ruling, defendant Leavitt was
required to give John his client file regarding his representation of Anne in the adoption
of Baby Boy Conaty. The defendants contend that the circuit court erroneously required
such disclosure because John failed to state a valid cause of action for fraud.
Additionally, the defendants contest the West Virginia circuit
court's ruling as being inconsistent with an earlier ruling by a California superior
court, in "California case 1," finding that the fraud alleged to have been
committed by defendants Leavitt and Anne did not disable the attorney-client privilege
with respect to legal proceedings in California. Accordingly, the defendants urge that the
circuit court should have adopted the ruling of the California court finding the
attorney-client privilege to be applicable.See
footnote 95 95
John responds that the circuit court correctly held that the crime or fraud exception negates the defendants' ability to assert the attorney-client privilege in this case because this exception applies, in cases such as this one, whenever a client seeks the aid of an attorney in committing a crime or fraud. Thus, because John demonstrated that fraud had been committed by defendants Anne and Leavitt, the circuit court properly found the privilege to be inapplicable and permitted discovery of Leavitt's client files pertaining to his representation of Anne in the adoption of Baby Boy Conaty. Moreover, John claims that the defendants failed to preserve for appeal their assignment of error charging that the West Virginia circuit court should have adopted the ruling of the California superior court because they did not argue to the circuit court that it should give deference to the California court's ruling. Citing 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 1-7(B)(6)(a), at 50 (3d ed. 1994) [hereinafter 1 Cleckley] ("Failure to complain of an alleged error during the course of trial constitutes waiver of the defect and ordinarily precludes appellate review." (citations omitted)). Therefore, John contends that the circuit court properly applied the crime or fraud exception because the defendants failed to present a compelling reason as to why the exception should not apply.See footnote 96 96
The attorney-client privilege is a widely recognized and solemnly
respected privilege, the purpose of which is to protect confidential communications
between a client and his/her counsel. 81 Am. Jur. 2d Witnesses § 337, at
314 (1992) ("It is a long- established rule of common law that an attorney or
counselor at law is not permitted, and cannot be compelled, to testify as to
communications made to him in his professional character by his client, unless the client
consents." (footnotes omitted)). See also W. Va. R. Evid. Rule
501 (recognizing common law privileges); State v. Fisher, 126 W. Va. 117, 121,
27 S.E.2d 581, 583 (1943) ("It is settled law in this State that a communication to
an attorney by a client or former client dealing with relation as attorney and client is
privileged." (citations omitted)).
While this privilege is scrupulously guarded, an exception to
its ironclad rule of nondisclosure of client confidences exists where a client engages an
attorney's assistance in engineering or perpetrating a crime or fraud. 81
Am. Jur. 2d Witnesses § 393, at 356 ("The attorney-client privilege
does not generally exist where the representation is sought to further criminal or
fraudulent conduct either past, present, or future." (footnote omitted)). See also
State v. Beard, 194 W. Va. 740, 753, 461 S.E.2d 486, 499 (1995) (stating
"[t]he purpose of the crime-fraud exception to the attorney/client privilege" is
"'to assure that the "seal of secrecy," between lawyer and client does not
extend to communications "made for the purpose of getting advice for the commission
of a fraud" or crime'" (quoting United States v. Zolin, 491 U.S. 554,
563, 109 S. Ct. 2619, 2626, 105 L. Ed. 2d 469, 485 (1989) (additional
citations omitted))). See generally A.B. Dick Co. v. Marr, 95 F. Supp.
83, 102 (S.D.N.Y. 1950) ("[I]t is quite clear that the privilege disappears if it is
invoked merely to cloak a fraudulent scheme, and that when a client consults an attorney
as to how to concoct or perpetrate a fraud the privilege is unavailing." (citations
omitted)); Fellerman v. Bradley, 99 N.J. 493, 504, 493 A.2d 1239, 1245 (1985)
("[A]ttorney-client communications that constitute 'a fraud on a court' are not
privileged. Misleading, inconsistent, or deceitful actions directed at the court itself
denote a species of deceptive conduct that may fall short of civil or criminal fraud. If
that form of deceit, however, directly interferes with the judicial process, it can
constitute a fraud on the court." (citation omitted)).
It is important to note, though, that the crime or fraud
exception is traditionally a narrow one. In this manner, only a crime or a fraud upon the
court will suffice to overcome the attorney-client privilege. Thus, when the fraud alleged
bespeaks of tortious fraudulent conduct, rather than a true fraud upon the court, the
crime or fraud exception does not operate to compel disclosure of the privileged
communications. See 1 Cleckley, § 5-4(E)(6)(a), at 579 (3d ed. 1994) (stating
specifically "[t]he term 'fraud' as used [in reference to crime or fraud exception]
refers to a fraud on the judicial process perpetrated by a client"). See also
Syl. pt. 5, Savas v. Savas, 181 W. Va. 316, 382 S.E.2d 510 (1989) ("A
claim of fraud upon the court is reserved for only the most egregious conduct on the part
of attorneys, court officials, or judges which causes the judicial process to be
subverted. It ordinarily does not relate to misrepresentation or fraudulent conduct
between the parties themselves.").
To determine whether the attorney-client privilege may properly
be exercised to protect a particular communication, the party seeking to assert the
privilege bears the burden of proving that confidential communications between the party
client and his/her attorney render the privilege applicable. Syl. pt. 3, State ex rel.
United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 (1997)
("'The burden of establishing the attorney-client privilege or the work product
exception, in all their elements, always rests upon the person asserting it.' Syl. pt. 4, State
ex rel. U[nited] S[tates] F[idelity] & G[uar.
Co.] v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995)."). By
contrast, when a party attempts to overcome the applicability of the privilege by
employing the crime or fraud exception, the discovering party, and not the party asserting
the privilege, bears the burden of establishing, by prima facie evidence, that a
crime or fraud has tarnished the allegedly privileged communications thereby authorizing
their disclosure. 2A Michie's Jur. Attorney and Client § 34, at 618 (1993)
("To succeed, the [party seeking to overcome the privilege] must make a prima facie
showing that the lawyer was consulted and employed for the purpose of facilitating or
concealing an ongoing, or future, criminal or fraudulent scheme.").
Before ordering disclosure of the privileged material, though,
the court also must find that the privileged communications were related to the purported
crime or fraud. Syl. pt. 2, Thomas v. Jones, 105 W. Va. 46, 141 S.E. 434
(1928) ("In order to admit in evidence confidential communications between attorney
and client under the exception to the general rule that if such communications were made
in order to perpetrate a fraud on justice they are not privileged, it must clearly appear
that such communications were made by the client with that intent and purpose."). The
party asserting the privilege may also have an opportunity to demonstrate why, in light of
the discovering party's prima facie case, the privilege should remain intact. 1
Cleckley, § 5-4(E)(6)(a), at 85 (Cum. Supp. 1998) (citation omitted).
Appellate review of a circuit court's decision to apply the
crime or fraud exception and to compel the disclosure of materials otherwise protected by
the attorney- client privilege is for an abuse of discretion. Syl. pt. 4, State ex rel.
United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 ("'When a
circuit court's discovery ruling with respect to privileged materials will result in the
compelled disclosure of those materials, a hard and more stringent examination will be
given on appeal to determine if the circuit court abused its discretion.' Syl. pt. 5, State
ex rel. U[nited] S[tates] F[idelity] & G[uar.
Co.] v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995).").
Prior to reaching the merits of the parties' arguments and
reviewing the ruling of the circuit court, however, we must first determine the nature of
the attorney- client privilege in this case and the applicability of any exceptions to
that privilege. Both parties indicate, and the circuit court alluded, that because the
attorney-client relationship between defendants Leavitt and Anne was created in the state
of California, California law should govern the applicability of the privilege and any
exceptions thereto. In the realm of conflicts of laws, we previously have held that
"[m]atters relating to the substantive rights of the parties are governed by the law
of the place where the injury occurred, while matters pertaining to remedial rights are
controlled by the law of the forum." Syl. pt. 2, Forney v. Morrison, 144
W. Va. 722, 110 S.E.2d 840 (1959). With specific regard to conflicts involving
evidentiary matters, we have noted that "[t]he admissibility or inadmissibility of
evidence pertains to the remedy and is governed by the law of the forum." Syl. pt. 3,
Forney, id. See generally 4A Michie's Jur. Conflict of Laws,
Domicile and Residence § 38 (1990). More precisely, in Gebr. Eickhoff Maschinenfabrik Und
Eisengieberei mbH v. Starcher, we recognized that "'[t]he local law of the forum
governs . . . pre-trial practice, including the taking and use of depositions,
discovery and penalties for refusal to comply with proper request for
information[.]'" 174 W. Va. 618, 623 n.8, 328 S.E.2d 492, 598 n.8 (1985)
(quoting Restatement (Second) of Conflict of Laws § 127 cmt. a(5) (1969)). Accordingly,
we find that the law of the State of West Virginia, as the forum state of this case,
governs the nature of the attorney-client privilege and the applicability of the crime or
fraud exception thereto at issue in this appeal.
Turning now to the ruling of the circuit court, we note that,
by order entered August 14, 1995, the circuit court determined that the attorney
client privilege does not apply to the communications between defendants David Keene
Leavitt and Anne Gilmore Conaty pertaining to the adoption of the son of Anne Conaty and
John Kessel for the reason that the complaint alleges causes of action against both the
attorney and client, including fraud, and therefore, the attorney client privilege does
not apply.
On the face of this order, it appears that the circuit court properly applied the crime or
fraud exception to the underlying proceedings, finding that the communications between
Anne and Leavitt were not privileged on the basis of fraud. Looking to the transcript of
the hearing resulting in this order, however, we may discern the circuit court's reasoning
behind its ruling: "I subscribe to the theory that this is an intentional tort, if it
exists, and that the attorney-client privilege -- This is one of the exceptions to
it. . . . I think that th[e] privilege exists except as to where it may
apply to the intentional tort." As we discussed above, the jurisprudence of this
State has not expanded the scope of the crime or fraud exception to include the commission
of a tort as a basis for extinguishing the attorney- client privilege. Because such an
exception does not exist in this jurisdiction, the circuit court abused its discretion in
relying upon this modified exception to require the disclosure of material protected by
the attorney-client privilege.
Nevertheless, while we find that the circuit court abused its discretion in citing the wrong reason for its decision, this error does not constitute reversible error as the correct result ultimately was attained. In this manner, the record before this Court indicates that John made a prima facie showing that the basis for the attorney-client relationship between defendants Leavitt and Anne was the commission of a fraud upon the court and that the confidential communications ordinarily protected by the attorney-client privilege were made in furtherance of this fraudulent scheme. The record presented to us indicates that, without a doubt, Anne consulted Leavitt in order to subvert John's attempts to oppose the adoption of their child and to obtain an adoptive placement in a judicially inaccessible forum. Moreover, the purportedly privileged communications transpiring between defendants Leavitt and Anne were not only related to the alleged fraud, but indeed constituted an integral part of the planning and performance of the fraudulent scheme.
Examples of this fraud upon the court orchestrated and perpetrated through Leavitt's
legal representation of Anne include, but are not limited to, the failure of both Anne and
Leavitt to notify the Cabell County Circuit Court of the contemplated Canadian adoption
proceedings upon learning of the pendency of John's inverse paternity action; Leavitt's
facsimile communication to Brian cautioning him to prevent John from learning anything
more about Baby Boy Conaty's pre-adoptive placement thereby thwarting John's judicial
efforts in West Virginia to assert his parental rights and to establish a relationship
with his infant son; and Anne's repeated renunciation of medical releases which the Cabell
County, West Virginia, Circuit Court had ordered her to execute in furtherance of John's
attempts to locate his child.See footnote 97 97 Therefore, we find that the crime or fraud exception extinguished the
attorney-client privilege in this case thereby permitting John to access Leavitt's files
pertaining to his legal representation of Anne in the adoption of Baby Boy Conaty.
E.
Excessiveness of Damages Awards
The defendants' final contentions on appeal are that the damages
awarded by the jury and ratified by the trial court were excessive. In reviewing
challenges to damages awards generally, a deferential standard is employed: "in the
absence of any specific rules for measuring damages, the amount to be awarded rests
largely in the discretion of the jury, and courts are reluctant to interfere with such a
verdict . . . ." 22 Am. Jur. 2d Damages § 1021, at 1067 (1988)
(footnotes omitted). This judicial hesitance stems from the "strong presumption of
correctness assigned to a jury verdict assessing damages." Reel v. Ramirez,
243 Va. 463, 466, 416 S.E.2d 226, 228 (1992). Accordingly,
[a] jury verdict . . . may not
be set aside as excessive by the trial court merely because the award of damages is
greater than the trial judge would have made if he had been charged with the
responsibility of determining the proper amount of the award. This Court cannot set aside
a verdict as excessive . . . merely because a majority or all members of the
Court would have made an award of a lesser amount if initially charged with the
responsibility of determining the proper amount of the award.
Sargent v. Malcomb, 150 W. Va. 393, 401, 146 S.E.2d 561, 566 (1966). See
also Keiffer v. Queen, 155 W. Va. 868, 873, 189 S.E.2d 842, 845 (1972)
("The courts usually state that though they might have awarded a greater or lesser
amount than that contained in the jury verdict, they will not substitute their views for
that of the jury."); Sargent v. Malcomb, 150 W. Va. at 396, 146 S.E.2d at
564 ("[A] mere difference of opinion between the court and the trial jury concerning
the proper amount of recovery will not justify either the trial court or this Court in
setting aside the verdict on the ground of inadequacy or excessiveness." (citation
omitted)). Nevertheless, "'[a] verdict of a jury will be set aside where the amount
thereof is such that, when considered in the light of the proof, it is clearly shown that
the jury was misled by a mistaken view of the case.'
Syllabus, Point 3, Raines v. Faulkner, 131 W. Va. 10[, 48 S.E.2d 393
(1947)]." Syl. pt. 2, Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842.
Furthermore, "'[c]ourts [may] set aside jury verdicts as excessive [if] they are
monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and
manifestly show jury passion, partiality, prejudice or corruption.' Syl. Pt. [1], [in
part,] Addair v. Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821
(1977)." Syl. pt. 5, in part, Roberts v. Stevens Clinic Hosp., Inc., 176
W. Va. 492, 345 S.E.2d 791 (1986). With these principles in mind, we proceed to
review the defendants' assignments of error.
1. Compensatory Damages Award
The defendants first contest as excessive the amount of
compensatory damages awarded by the jury and approved by the circuit court. Following the
trial underlying this appeal, the jury awarded compensatory damages as follows:
1. The reasonable costs and expenses John Kessel expended in legal
fees, investigator fees and other fees in his attempt to locate the child and gain custody
of him: $150,000
2. Any mental pain and suffering, anguish and anxiety that
plaintiff has undergone to date as a proximate result of the defendants' conduct: $500,000
3. John Kessel's loss of the solace, society, companionship and
services of the child that were proximately caused by the conduct of the defendants:
$1,000,000
4. If you believe with reasonable certainty that John Kessel
will suffer mental pain and suffering, anguish or anxiety in the future, then future
mental pain and suffering, anguish or anxiety may be taken into consideration and you may
award an amount to compensate plaintiff for said elements: $350,000[.]
Thereafter, the defendants filed a post-trial motion to alter or amend the judgment
pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.See footnote 98 98 The circuit court, reviewing the
evidence introduced by John at trial, determined that the damages awarded for the first
element of compensatory damages, "reasonable costs and expenses" associated with
John's attempts to locate and obtain custody of Baby Boy Conaty, did not comport with the
evidence presented. Thus, the court reduced this portion of the compensatory damages award
from $150,000 to $116,687.47, commensurate with the record evidence of these expenditures.
With respect to the three remaining compensatory damages figures, though, the court
determined that the evidence supported these calculations and affirmed the jury's award.
Before this Court, the defendants complain that the compensatory damages awarded by the jury were excessive. The defendants assert that, in examining the propriety of a damages award, the reviewing court must determine whether a particular compensatory damages award is, in fact, excessive.
Before a verdict may be reversed on the
basis of excessiveness, the trial court must make a detailed appraisal of the evidence
bearing on damages. Because the verdict below is entitled to considerable deference, an
appellate court should decline to disturb a trial court's award of damages on appeal as
long as that award is supported by some competent, credible evidence going to all
essential elements of the award.
Syl. pt. 4, Reed v. Wimmer, 195 W. Va. 199, 465 S.E.2d 199 (1995). Continuing
this analysis, the defendants next propose that once a damages award has been determined
to be excessive, the court must determine whether such excessiveness requires reversal of
the award:
"'"Courts must not set aside
jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all
measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice
or corruption." Syl. Pt. [1], Addair v. Majestic Petroleum Co., Inc., 160
W. Va. 105, 232 S.E.2d 821 (1977).' Syl. pt. 5, Roberts v. Stevens Clinic Hosp.
Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)." Syl. Pt. 2, Capper v. Gates,
193 W. Va. 9, 454 S.E.2d 54 (1994).
Syl. pt. 5, Tanner v. Rite Aid of West Virginia, Inc., 194 W. Va. 643, 461 S.E.2d 149 (1995).
Under the facts and circumstances of this case, the defendants
contend that the compensatory damages award is excessive. They suggest that the only
concrete evidence of damages tendered by John was the recitation of amounts he expended
for legal and investigatory services in furtherance of his efforts to regain his son.
Apart from this proof, the defendants intimate that John failed to provide sufficient
evidence to justify the remainder of the compensatory damages. They charge that the expert
psychiatric witness testifying on John's behalf failed to indicate that John, personally,
had sustained any definite psychiatric problems from the Canadian adoption of his son. Citing
Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992) (defining requirements for
recovery under claim of negligent infliction of emotional distress.) The defendants also
state that John did not present any evidence as to the value of Baby Boy Conaty's services
lost to him by virtue of their conduct.
Finally, the defendants propose that the jury awarded the
excessive compensatory damages in this case based upon passion and prejudice. In support
of this argument, the defendants cite Roberts v. Stevens Clinic Hospital, Inc., 176
W. Va. 492, 345 S.E.2d 791 (1986), wherein this Court upheld a $3 million award for
the wrongful death of a toddler. Given that the child at issue in the instant case is not
deceased, but rather living with "loving" adoptive parents, the defendants urge
that the jury improperly sought to punish the defendants for their actions by awarding
John exorbitant compensatory damages.
By contrast, John disputes the defendants' argument that the
compensatory damages awarded by the jury were excessive because the award is supported
both by the evidence and the applicable law. Further, John represents that, based upon the
$3 million damage award in Roberts, which was decided over ten years ago, the
jury's verdict in the present case was not excessive. Citing Roberts v. Stevens
Clinic Hosp., Inc., 176 W. Va. 492, 345 S.E.2d 791.
Primarily, the aim of compensatory damages is to restore a
plaintiff to the financial position he/she would presently enjoy but for the defendant's
injurious conduct. In this manner, "[c]ompensatory damages indemnify the plaintiff
for injury to property, loss of time, necessary expenses, and other actual losses. They
are proportionate or equal in measure or extent to plaintiff's injuries, or such as
measure the actual loss, and are given as amends therefor." 5C Michie's Jur. Damages
§ 7, at 46-47 (1998) (footnotes omitted). "[T]he general rule in awarding damages is
to give compensation for pecuniary loss; that is, to put the plaintiff in the same
position, so far as money can do it, as he would have been [in] if . . . the
tort [had] not [been] committed." 5C Michie's Jur. Damages § 18, at 63
(footnote omitted). Generally, in an action grounded in tort, a prevailing plaintiff may
recover compensatory damages for, among other things, expenses actually incurred in
repairing or redressing the injury occasioned by the defendant's conduct and sums
necessary to compensate the plaintiff for his/her injuries and his/her present and/or
future physical or mental pain and suffering resulting from the defendant's tortious
behavior. Id. § 7, at 47; § 25, at 78-79; § 42, at 116; § 43, at 116-17, 119,
123- 26. Furthermore, "[i]t is axiomatic that the plaintiff's measure of damages in a
cause of action in fraud would be any injury incurred as a result of the
defendant's fraudulent conduct." Persinger v. Peabody Coal Co., 196
W. Va. 707, 719, 474 S.E.2d 887, 899 (1996) (emphasis added). See also Syl.
pt. 4, Bowling v. Ansted Chrysler-Plymouth- Dodge, Inc., 188 W. Va. 468, 425 S.E.2d 144 (1992) ("Where it can be shown by clear and convincing evidence that a
defendant has engaged in fraudulent conduct which has injured a plaintiff, recovery of
reasonable attorney's fees may be obtained in addition to the damages sustained as a
result of the fraudulent conduct.").
Where a parent seeks recovery for injuries regarding his/her
minor child, a prevailing plaintiff parent may also recover remuneration for the value of
the child's services and/or future earnings impaired and/or lost as a result of the
defendant's wrongful actions. 22 Am. Jur. 2d Damages § 193, at 166 (1988); 5C
Michie's Jur. Damages § 28, at 85-86. Thus, under the facts of this case, John
properly sought, and received, recovery for the various elements of compensatory damages
considered by the jury.
With this assignment of error, the defendants urge this Court
to reverse the compensatory damages award based upon its alleged excessiveness. As we have
noted, a review of a purportedly excessive jury verdict commands a deferential standard of
appellate review. Stated otherwise, "courts are most reluctant to set aside jury
verdicts as to damages . . . ." Keiffer v. Queen, 155
W. Va. 868, 873, 189 S.E.2d 842, 845 (1972). Consequently, a jury verdict will not be
set unless it is unsupported by the evidence or otherwise appears to be "'monstrous,
enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly
[demonstrative of] jury passion, partiality, prejudice or corruption.'" Syl. pt. 5,
in part, Roberts v. Stevens Clinic Hosp., Inc., 176 W. Va. 492, 345 S.E.2d 791
(quoting Syl. pt. 1, in part, Addair v. Majestic Petroleum Co., Inc., 160
W. Va. 105, 232 S.E.2d 821). See also Syl. pt. 2, in part, Keiffer v. Queen,
155 W. Va. 868, 189 S.E.2d 842 (mandating reversal of jury verdict where "it is
clearly shown that the jury was misled by a mistaken view of the case" (internal
quotations and citation omitted)).
Upon a review of the proceedings below, we cannot find that the
compensatory damages awarded by the jury to recompense John's expenditures occasioned by
the defendants' fraudulent conduct were either unsupported by the evidence or improperly
based upon the jury's passion and prejudice.See
footnote 99 99 Claiming that the compensatory damages lacked evidentiary
support, the defendants seize upon John's perceived failure to provide sufficient proof of
his claims for mental pain and suffering. However, "[w]e have not required plaintiffs
who have suffered emotional distress damages to buttress such claims by corroborative
evidence at the peril of having their claims dismissed as a matter of law." Slack
v. Kanawha County Hous. & Redev. Auth., 188 W. Va. 144, 152, 423 S.E.2d 547,
555 (1992). Therefore, a plaintiff's failure to introduce expert witness testimony
specifically describing his/her mental anguish, pain, and suffering is not necessarily
fatal to a recovery of emotional distress damages if there exists in the record evidence
to support the award. We find the evidentiary record to be such that the jury properly
could have concluded that John had sustained mental, emotional, or psychiatric
difficulties as a result of the defendants' fraudulent participation in the Canadian
adoption of his son. Therefore, we affirm the circuit court's order upholding this portion
of the jury's verdict.
The defendants also cite the lack of evidentiary support for
John's recovery of sums for the value of Baby Boy Conaty's services lost to him by virtue
of their fraudulent conduct. Again, though, we agree with the circuit court's affirmance
of the compensatory damages award based upon the fact that the "jury's award in this
case . . . was within the bounds of the evidence . . . ."
Throughout the trial of this case, John was permitted to present, and the defendants were
permitted to rebut, evidence of the defendants' fraudulent conduct which prevented him
from commencing a parent-child relationship with his son or from otherwise enjoying the
privileges of parenthood. Not only could the jury have found that the defendants
intentionally and fraudulently secreted from John the whereabouts of Baby Boy Conaty until
his Canadian adoption had been finalized, but it could also have concluded that, but for
the defendants' actions, John would at least have had an opportunity to seek custody of,
or visitation with, his child. As a result of the defendants' efforts to facilitate and
expedite the international custody proceedings, John did not even have a realistic
possibility of seeking, much less obtaining, custody of, or visitation with, his son. In
light of these facts, the jury properly could have determined the value to John of his
son's "solace, society, companionship and services" to have approximated $1
million as a result of the defendants' complete and utter deprivation of John's parental
relationship with his son.
Lastly, the defendants suggest that the compensatory damages
awarded by the jury were excessive as compared to the damages awarded for the wrongful
death of a young child in Roberts v. Stevens Clinic Hospital, Inc., 176 W. Va.
492, 345 S.E.2d 791. With this characterization of the compensatory damages award,
however, we disagree. In Roberts we acknowledged "[t]hat a damage award is
'precedent shattering' is of little moment when the damages are in fact supported by the
record." 176 W. Va. at 511, 345 S.E.2d at 811 (quoting Pippen v. Denison Div.
of Abex Corp., 66 Mich. App. 664, 677, 239 N.W.2d 704, 709-10 (1976) (citation and
footnote omitted)). Because we have concluded that the damages awarded by the jury to
compensate John for his losses occasioned by the defendants' fraudulent conduct were
supported by the record evidence, the mere fact that an award of such an amount has not
previously been upheld by this Court is not determinative of the award's propriety.
Accordingly, we affirm the circuit court's decision upholding as proper the compensatory
damages awarded by the jury in this case.
2. Punitive Damages Award
The defendants also argue the excessiveness of the punitive
damages award. At the conclusion of the underlying trial, the jury assessed the following
punitive damages: "David Leavitt $5,000,000[;] Brian Conaty $500,000[;] Anne Conaty
[] $250,000[;] Dr. Thomas Conaty $50,000[; and] Eleanor Conaty $50,000[.]" The
defendants then filed a motion to alter or amend the judgment, pursuant to W. Va. R.
Civ. P. Rule 59(e),See footnote 100 100
and a motion to review the punitive damages award, as required by Garnes v. Fleming
Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991).See footnote 101 101 The circuit court, employing the
factors enumerated by this Court for reviewing awards of punitive damages,See footnote 102 102 determined
that all of the punitive damage awards were proper and that none of the punitive awards
was excessive. From this affirmance by the circuit court, the defendants appeal to this
Court the perceived excessiveness of the punitive damages award.
Initially, the defendants suggest a two-step inquiry to
determine the propriety of the circuit court's punitive damages award: (1) whether, upon
considering the nature of the defendant's conduct, an award of punitive damages is
appropriate and (2) if a punitive damages award is permissible, whether the amount of
punitive damages actually assessed is excessive. Citing Syl. pt. 7, Alkire v.
First Nat'l Bank of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996) ("Our
punitive damage jurisprudence includes a two-step paradigm: first, a determination of
whether the conduct of an actor toward another person entitles that person to a
punitive damage award under Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895);
second, if a punitive damage award is justified, then a review is mandated to determine if
the punitive damage award is excessive under Garnes v. Fleming Landfill, Inc.,
186 W. Va. 656, 413 S.E.2d 897 (1991).").
The defendants first assert that punitive damages cannot
properly be assessed against them as they were acting in conformity with the
then-applicable law of the State of California. They then rely upon the case of BMW of
North America, Inc. v. Gore, 517 U.S. 559, 572, 116 S. Ct. 1589, 1597, 134 L. Ed. 2d 809, 824 (1996) (plurality opinion), for the proposition that punitive damages are
improper to punish the doing of an act that was lawful at the time or in the place that it
was performed. They suggest that because their actions were not violative of the governing
California law, presumably pertaining to adoptions, they cannot be charged with punitive
damages based upon this conduct.
Next arguing that the punitive damages assessed against them
were excessive, the defendants complain that the circuit court improperly removed from the
jury's contemplation "the wealth of [the d]efendants" in instructing them upon
the appropriate factors to consider in awarding punitive damages.See footnote 103 103 They indicate that this element
has been found by this Court to be relevant to a jury's assessment of punitive damages, citing
Syl. pt. 3, in part, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 ("(5) The financial position of the defendant is relevant."), and
that John's failure to introduce such evidence at trial improperly removed this criterion
from the jury's consideration. The defendants also complain that the punitive damages
awarded against them far exceed their net worth and that the jury should have been
permitted to consider their financial position before assessing such excessive damages.
Finally, defendants Brian and Dr. and Mrs. Conaty intimate that
the punitive damages assessed them were exorbitantly excessive in that the amount of these
damages "far exceeds any alleged wrongdoing committed by [them]." They represent
that they are guilty of no wrongdoing other than providing familial support to their
sister and daughter, Anne. Because, they claim, they committed no unlawful or improper
acts, the punitive damages assessed against them are both improper and excessive.
John responds by stating that the punitive damages awarded by the jury and approved by the circuit court are proper given the defendants' fraudulent conduct. Citing Syl. pt. 1, Wells v. Smith, 171 W. Va. 97, 297 S.E.2d 872 (1982) ("'In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive[,] or vindictive damages . . . .' Syllabus Point 4, in part, Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895)."),
overruled in part on other grounds by Garnes v. Fleming Landfill, Inc.,
186 W. Va. 656, 413 S.E.2d 897. Because, John contends, the jury conclusively found
the defendants had fraudulently interfered with his efforts to assert his parental rights
and to establish a relationship with his son, they were permitted to consider and to award
punitive damages.
Additionally, John suggests that the amount of punitive damages
awarded by the jury is proper and not excessive. Relying upon this Court's standard for
determining an appropriate amount of punitive damages set forth in TXO Production Corp.
v. Alliance Resources Corp., John represents that the amount of punitive damages
actually awarded by the jury was well within the amount held to be permissible by this
Court. Citing Syl. pt. 15, TXO Prod. Corp. v. Alliance Resources Corp., 187
W. Va. 457, 419 S.E.2d 870 ("The outer limit of the ratio of punitive damages to
compensatory damages in cases in which the defendant has acted with extreme negligence or
wanton disregard but with no actual intention to cause harm and in which compensatory
damages are neither negligible nor very large is roughly 5 to 1. However, where the
defendant has acted with actual evil intention, much higher ratios are not per se
unconstitutional."), cert. granted, in part, 506 U.S. 997, 113 S. Ct. 594, 121 L. Ed. 2d 532 (1992), aff'd, 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366
(1993).
Lastly, John urges that the fact that the circuit court removed
the defendants' financial position from the jury's consideration does not warrant reversal
of the punitive damages award. Rather, John represents that his efforts to obtain the
defendants' financial information were thwarted by their failure to comply with several
pre-trial discovery requests regarding their financial condition and that the circuit
court did not preclude either party from introducing such evidence at trial. Accordingly,
John indicates that the defendants have now waived their right to complain of this alleged
defect because they neither cooperated with John's efforts to secure such information nor
presented such evidence on their own behalf.
With this assignment of error, the defendants request us to
determine whether their conduct warranted an award of punitive damages and whether the
punitive damages awarded by the jury and ratified by the trial court were excessive. Thus,
we first must examine the circumstances under which a punitive damages award is proper.
Generally,
"'[p]unitive or exemplary damages are
such as, in a proper case, a jury may allow against the defendant by way of punishment for
wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff,
over and above full compensation for all injuries directly or indirectly resulting from
such wrong.' Syllabus Point 1, O'Brien v. Snodgrass, 123 W. Va. 483, 16 S.E.2d 621 (1941)." Syllabus point 4, Harless v. First Nat'l Bank, 169 W. Va.
673, 289 S.E.2d 692 (1982). Syl. pt. 5, Coleman v. Sopher, ___ W. Va. ___, ___
S.E.2d ___ (No. 23943 Nov. 20, 1997). In this vein, we have determined punitive damages
awards to be permissible to achieve a myriad of important objectives.
"[P]unitive damages serve several purposes. Among the primary
ones are: (1) to punish the defendant; (2) to deter others from pursuing a similar course;
and, (3) to provide additional compensation for the egregious conduct to which the
plaintiff has been subjected." . . . . Furthermore, "'[[p]unitive
damages] encourage a plaintiff to bring an action where he might be discouraged by the
cost of the action or by the inconvenience of a criminal proceeding. . . .
[They also] provide a substitute for personal revenge by the wronged party.'"
Coleman v. Sopher, ___ W. Va. at ___ n.22, ___ S.E.2d at ___ n.22, slip op. at
31 n.22 (quoting Harless v. First Nat'l Bank in Fairmont, 169 W. Va. at 691
& n.17, 289 S.E.2d at 702-03 & n.17 (additional citations omitted)). Thus,
"'[i]n actions of tort, where gross fraud, malice, oppression, or wanton, willful, or
reckless conduct or criminal indifference to civil obligations affecting the rights of
others appear,'" a jury may properly consider and assess punitive damages against the
defendants based upon the facts and circumstances surrounding the defendants' wrongful
conduct. Syl. pt. 4, in part, Alkire v. First Nat'l Bank of Parsons, 197
W. Va. 122, 475 S.E.2d 122 (1996) (quoting Syl. pt. 4, in part, Mayer v. Frobe,
40 W. Va. 246, 22 S.E. 58).
Upon the appeal to this Court of a punitive damages assessment,
we review awards of punitive damages in the first instance to determine whether the facts
and circumstances of the case at issue are sufficient to permit an award of such damages.
Syl. pt. 7, Alkire, 197 W. Va. 122, 475 S.E.2d 122 (describing two-part
judicial review of punitive damages awards). In conducting a review of the propriety of
punitive damages, we employ the criteria set forth above describing the situations in
which punitive damages are proper. We next review such awards to ascertain whether the
amount of punitive damages actually awarded by the jury is proper or whether such an award
is excessive. Syl. pt. 7, Alkire, id. For this undertaking, we "apply[]
the standard specified in Syllabus Point 5 of Garnes." Syl. pt. 5, in part, Alkire,
id. This canon directs:
Upon petition, this Court will review all
punitive damages awards. In our review of the petition, we will consider the same factors
that we require the jury and trial judge to consider, and all petitions must address each
and every factor set forth in Syllabus Points 3 and 4 of this case[See footnote 104 104 ]
with particularity, summarizing the evidence presented to the jury on the subject or to
the trial court at the post-judgment review stage. Assignments of error related to a
factor not specifically addressed in the petition will be deemed waived as a matter of
state law.
Syl. pt. 5, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897.
With these standards in mind, we turn now to the defendants' assignment of error.
The defendants first charge that the assessment of punitive
damages against them is improper, relying upon the case of BMW of North America, Inc.
v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) (plurality opinion).
They contend that because their actions were in conformity with the then-applicable law of
California, presumably governing adoptions, they cannot now be assessed with punitive
damages. While their argument facially appears to be valid, we cannot set aside the
punitive damages award on this basis. It is true that the United States Supreme Court in
the Gore decision prohibits "a State [from] impos[ing] economic sanctions on
violators of its laws with the intent of changing the tortfeasors' lawful conduct in other
States." 517 U.S. at 572, 116 S. Ct. at 1597, 134 L. Ed. 2d at 824 (footnote
omitted). However, before we can make an automatic declaration that punitive damages are
improper in this case, we must first determine whether, in fact, then-existing law in
California permitted the defendants' conduct of which the plaintiff now complains.
In presenting their argument to this Court, the defendants intimate that their actions complied with the law governing adoptions in the State of California in 1991.See footnote 105 105
As we alluded to in note 32, supra, though, the law governing the underlying
adoption of Baby Boy Conaty would more appropriately be the law of Alberta, Canada, where
the adoption was finalized, as opposed to the law of California. See Marr v.
Superior Court, 114 Cal. App. 2d 527, 250 P.2d 739 (1952) (suggesting that
consent to adoption must comply with laws of jurisdiction in which adoption petition is
filed); Estate of Johnson v. Johnson, 100 Cal. App. 2d 73, 223 P.2d 105 (1950) (indicating that validity of adoption is determined by laws of state or
foreign country in which adoption is finalized). As the defendants do not assert that
their actions either complied with or violated the adoption laws of Alberta, Canada, we
need not further address this matter. See Syl. pt. 6, Addair v. Bryant, 168
W. Va. 306, 284 S.E.2d 374 (1981) ("Assignments of error that are not argued in
the briefs on appeal may be deemed by this Court to be waived."). See also
W. Va. R. App. P. Rule 10(d) ("The appellant's brief shall follow the same form
as the petition for appeal.") and Rule 3(c) ("A petition for appeal shall state
the following . . . : 3. The assignments of error relied upon on appeal
. . . . [and] 4. Points and authorities relied upon [and] a discussion of law
. . . .").
Giving the defendants the benefit of the doubt, however, we
also will examine whether their conduct complied with the law governing such behavior in
the State of California in 1991. The defendants' fraudulent concealment of information
regarding Baby Boy Conaty's whereabouts, in response to John's requests for such
information, directly contravened the law of California providing a cause of action for
"intentional concealment of a material fact". See Stevens v. Superior
Court, 180 Cal. App. 3d 605, 608-09, 225 Cal. Rptr. 624, 626 (1986) (citations
omitted). Accordingly, we find that the award of punitive damages in this case was not
precluded by the decision of the United States Supreme Court in BMW of North America,
Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809.
The defendants next ask us to examine the amount of the
punitive damages awarded by the jury and to ascertain whether this amount is excessive.
The defendants assert that because their financial position was removed from the jury's
consideration, the punitive damages awarded against them were excessive and should be set
aside for this reason. As we described in note 103, supra, the circuit court
removed this factor from the jury's consideration finding that "[t]here [wa]s just no
evidence" of the defendants' financial position in the evidence submitted at trial.
While the defendants objected generally to John's instruction enumerating the various
criteria the jury could consider in deciding whether to assess and award punitive damages,
we are unable to locate in the record any indication that the defendants objected
specifically to the circuit court's omission of the defendants' financial position portion
of this instruction. Thus, we are compelled to repeat our oft-stated cautionary:
"'To preserve an issue for appellate
review, a party must articulate it with such sufficient distinctiveness to alert a circuit
court to the nature of the claimed defect. The rule in West Virginia is that parties must
speak clearly in the circuit court[,] on pain that, if they forget their lines, they will
likely be bound forever to hold their peace . . . . [sic] [I]t must be
emphasized that the contours for appeal are shaped at the circuit court level by setting
forth with particularity and at the appropriate time the legal ground upon which the
parties intend to rely.'"
Hanlon v. Logan County Bd. of Educ., ___ W. Va. ___, ___, ___ S.E.2d ___, ___,
slip op. at 23 (No. 23957 Nov. 20, 1997) (quoting State v. Browning, 199
W. Va. 417, 425, 485 S.E.2d 1, 9 (1997) (quoting State ex rel. Cooper v. Caperton,
196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996) (citation omitted))). See also
W. Va. R. Civ. P. Rule 46 ("Formal exceptions to rulings or orders of the court
are unnecessary; but for all purposes for which an exception has heretofore been necessary
it is sufficient that a party, at the time the ruling or order of the court is made or
sought, make known to the court the action which he desires the court to take or his
objection to the action of the court and his grounds therefor[.]" (emphasis
added)). Hence, "'[w]here objections were not shown to have been made in the trial
court, and the matters concerned were not jurisdictional in character, such objections
will not be considered on appeal.' Syllabus point 1, State Road Comm'n v. Ferguson,
148 W. Va. 742, 137 S.E.2d 206 (1964)." Syl. pt. 2, Coleman v. Sopher,
___ W. Va. ___, ___ S.E.2d ___ (No. 23943 Nov. 20, 1997).
Nevertheless, even if we directly review the defendants'
contention that the omission of their financial status resulted in an excessive award of
punitive damages, we are not persuaded by their reasoning. The defendants correctly state
that a jury may properly consider the wealth of the defendants in rendering a punitive
damages award. See, e.g., Syl. pt. 3, in part, Garnes, 186 W. Va. 656,
413 S.E.2d 897 (enumerating criteria to be considered by jury in awarding punitive damages
and noting that "[t]he financial position of the defendant is relevant"); Syl.
pt. 2, Wells v. Smith, 171 W. Va. 97, 297 S.E.2d 872 ("In assessing
punitive damages, the trier of fact should take into consideration all of the
circumstances surrounding the particular occurrence including the nature of the
wrongdoing, the extent of harm inflicted, the intent of the party committing the act, the
wealth of the perpetrator, as well as any mitigating circumstances." (emphasis
added)).
Although a jury, and a reviewing court, may properly consider
the financial posture of a particular defendant, we have yet to conclusively require
consideration of this factor. Indeed, we specifically have recognized that
[w]e have never . . . mandated that a plaintiff must
introduce evidence of the wealth of the defendant in order to recover punitive damages. In
some cases, the defendant may wish to demonstrate its meager financial status as a way of
holding down a punitive damage award. The failure of the plaintiff to introduce such
evidence, however, does not preclude a punitive damage award.
Slack v. Kanawha County Hous. & Redev. Auth., 188 W. Va. 144, 156, 423 S.E.2d 547,
559 (1992). Accordingly, we find that the punitive damages assessed by the jury in this
case and approved by the trial court are not excessive solely because the jury was not
permitted to consider the defendants' financial position in awarding such damages.See footnote 106 106
The defendants lastly contend that the punitive damages awarded
against defendants Brian and Dr. and Mrs. Conaty were exorbitantly excessive considering
they did little more than act as "loving, supportive family members [who] tr[ied] to
help Defendant Anne through a difficult period in her life." To resolve this issue we
need only articulate that other jurisdictions faced with cases arising under similar
circumstances have, without hesitation, permitted punitive damages to be assessed against
the "helpful" family member found to have wrongfully interfered with the
complaining parent's parent-child relationship. See, e.g., Fenslage v. Dawkins,
629 F.2d 1107, 1109, 1111 (5th Cir. 1980) (upholding, under Texas law, punitive damages
award against paternal grandparents, paternal uncle, and paternal aunt); Kajtazi v.
Kajtazi, 488 F. Supp. 15, 19-20, 21-22 (E.D.N.Y. 1978) (finding punitive damages award
against paternal grandfather and paternal uncle to be proper under New York law); Kramer
v. Leineweber, 642 S.W.2d 364, 366, 369-70 (Mo. Ct. App. 1982) (affirming award of
punitive damages against paternal grandmother); Silcott v. Oglesby, 721 S.W.2d 290,
291 (Tex. 1986) (permitting recovery of punitive damages from maternal grandfather).
More importantly, though, is the fact that the named defendants
did not just provide familial support to their sister and daughter. Rather, the jury
weighing the evidence in this case specifically found that each of these defendants, Brian
and Dr. and Mrs. Conaty, had actively committed fraud in order to prevent John from
asserting his parental rights and to ultimately preclude him from ever establishing a
parent-child relationship with his son. Thus, we do not find that the punitive damages
assessed against defendants Brian and Dr. and Mrs. Conaty are disproportionately excessive
given their participation in the Canadian adoption of Baby Boy Conaty and the consequent
permanent deprivation of John's parental rights. In sum, we affirm the circuit court's
order upholding the jury's award of punitive damages against the defendants for their
fraudulent conduct which usurped John's parental rights.
F.
Cross-Appeal: Rights of Paternal Grandfather
In addition to the errors raised by the defendants, Dr. Ray Kessel
cross- appeals the circuit court's decision to direct a verdict in favor of the defendants
with respect to his claims for intentional infliction of emotional distress; intentional
deprivation of his right to visitation with his grandson, Baby Boy Conaty; fraud; and
tortious interference with his grandparental relationship with his grandson. Dr. Kessel
argues that the circuit court erroneously determined that his limited rights as a
grandparent would not support the further prosecution of his claims. In support of his
contention that he should have been permitted to present his claims to a jury, Dr. Kessel
cites W. Va. Code § 48-2B- 1, et seq., which sets forth a grandparent's
rights vis-a-vis his/her grandchild. He contends further that, because his son John would
have permitted him to visit with Baby Boy Conaty if John had had custody of the child, Dr.
Kessel should be permitted to hold the defendants accountable for their interference with
his expectation of a grandparental relationship with his grandson.
The defendants counter that because John has failed to state a valid cause of action, the claims of Dr. Kessel, which are based upon John's claims, are similarly invalid. They further adopt the circuit court's ruling finding that, as a grandfather, Dr. Kessel has no basis for a cause of action against them.
This cross-appeal arises from the circuit court's entry of a
directed verdict in favor of the defendants, which dismissed Dr. Kessel's claims against
them. In this regard, the circuit court, upon the conclusion of John's case at trial,
evaluated the evidence that had been presented and determined:
The statute in effect for grandparents'
visitation at the time of this incident is five lines. "Upon the verified petition of
[sic] a parent of a deceased child seeking visitation rights with grandchildren of the
petitioner, the Court [sic] may order that the grandparent shall have [sic] reasonable and
seasonable visitation rights with said grandchild or grandchildren as the Court [sic] may
deem proper in the best interest of the child or children." [W. Va. Code §
48-2B-1 (1980) (Repl. Vol. 1986).]
. . . .
[T]he Court would find that any rights that Mr. [sic] Ray
Kessel [has] derive from statutory law. There is no common law historical right for a
grandparent to have a relationship with a grandchild. This area of the law is
evolving. . . . The [West Virginia Supreme] Court [has] stated that the
rights of . . . grandparents relating to grandchildren have been expanding
over the past 20 years. However, those rights are limited in the main to rights of
visitation.
When we look at what was the right of
visitation for Ray Kessel at the time of the alleged tortuous [sic] conduct in this case,
Ray Kessel had no statutory right to visitation. . . . I find that, in this
case, Ray Kessel, in fact, cannot maintain any cause of action against any of the
defendants, because at the time of the tortuous [sic] conduct alleged in this case, he had
no statutory right. That is opposed to his son where our court [sic] has clearly said--and
that began in the early '70s-- that a biological parent in fact has a constitutional right
not to be deprived of a parental right without notice and some appropriate due process
hearing. That being In Re: Willis, a 1973 case. [157 W. Va. 225, 207 S.E.2d 129 (1973).]
So the Court would grant the motion of
the defense as to the claims of the plaintiff Ray Kessel. . . .
Rule 50(a) of the West Virginia Rules of Civil Procedure
permits a party to move for a directed verdict. When a defendant makes such a motion, a
circuit court should direct a verdict in the defendant's favor if "'the plaintiff's
evidence, considered in the light most favorable to him, fails to establish a prima facie
right to recovery[.]'" Syl. pt. 1, in part, Brannon v. Riffle, 197 W. Va.
97, 475 S.E.2d 97 (1996) (quoting Syl. pt. 3, in part, Roberts ex rel. Roberts v. Gale,
149 W. Va. 166, 139 S.E.2d 272 (1964)). In this regard, "every reasonable and
legitimate inference fairly arising from the testimony, when considered in its entirety,
must be indulged in favorably to plaintiff; and the court must assume as true those facts
which the jury may properly find under the evidence." Syl. pt. 2, in part, Brannon,
197 W. Va. 97, 475 S.E.2d 97 (internal quotations and citations omitted). Upon the
appeal of a circuit court's entry of a directed verdict, we apply a de novo
standard of review:
The appellate standard of review for the
granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules
of Civil Procedure is de novo. On appeal, this court [sic], after considering the evidence
in the light most favorable to the nonmovant party, will sustain the granting of a
directed verdict when only one reasonable conclusion as to the verdict can be reached. But
if reasonable minds could differ as to the importance and sufficiency of the evidence, a
circuit court's ruling granting a directed verdict will be reversed. Syl. pt. 3, Brannon,
id.
Examining the record of the proceedings before the circuit court, we find that the lower court did not err in directing a verdict in favor of the defendants with respect to Dr. Kessel's claims. While we have determined, above, that John presented valid causes of action, contrary to the arguments urged by the defendants, it does not necessarily follow that Dr. Kessel has stated a claim upon which relief can be granted. The circuit court based its decision primarily upon the statutory rights accorded to grandparents at the time of the events underlying this appeal. In 1991, W. Va. Code § 48-2B-1 (1980) (Repl. Vol. 1986) expressly permitted a grandparent to request visitation with a grandchild where the grandchild's parent, the grandparent's own child, was deceased. Likewise, W. Va. Code § 48-2-15(b)(1) (1991) (Repl. Vol. 1992) provided for a limited right of grandparental visitation where the grandchild's parent, the grandparent's own child, had been named as a party to a divorce, separate maintenance, or annulment action, but his/her whereabouts were unknown or he/she had otherwise failed to answer, appear, or defend such action. Beyond these two very specific scenarios, however, a grandparent had no definitely expressed statutory rights to either form a relationship with his/her grandchild or to continue a previously established relationship.
Turning to judicially recognized rights of grandparents in
existence at the time of the underlying events, we are faced with a slightly broader,
albeit still narrow, scope of grandparental rights. Prior to the legislative creation of a
statutory right to request visitation with one's grandchild in 1980, "[a] grandparent
who ha[d] no legal right to custody of his or her grandchild ha[d] no legal right to visit
and communicate with such grandchild over the parents' objection." Syl. pt. 1, Brotherton
v. Boothe, 161 W. Va. 691, 250 S.E.2d 36 (1978), superseded by statute as
noted in Petition of Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987). In
this regard, we explained that:
A parent who has legal custody of his or
her child has the right to determine when such minor child may visit, or may be visited by
the grandparents of the child, and a court has no authority to decree visitation rights to
a grandparent where such rights have not been agreed to by the parent.
Syl. pt. 2, id.
Enforcing the grandparental rights acknowledged by the
legislature in the 1980s, this Court determined that "[a] trial court, in considering
a petition of a grandparent for visitation rights with a grandchild or grandchildren
pursuant to W. Va. Code, 48-2- 15(b)(1) [1986] or W. Va. Code,
48-2B-1 [1980], shall give paramount consideration to the best interests of the grandchild
or grandchildren involved." Syl. pt. 1, Petition of Nearhoof, 178 W. Va.
359, 359 S.E.2d 587. Despite the relatively narrow scope of the two above-referenced
statutes securing a grandparent's right to visit with his/her grandchild, we held further
in Nearhoof that:
Upon the petition of a grandparent,
pursuant to W. Va. Code, 48-2B-1 [1980], seeking visitation rights with a
grandchild or grandchildren, who is the child or are the children of the grandparent's
deceased child, a trial court may order that the grandparent shall have reasonable and
seasonable visitation rights with the grandchild or grandchildren provided such visitation
is in the best interest of the grandchild or grandchildren involved, even though the
grandchild or grandchildren has or have been adopted by the spouse of the deceased child's
former spouse.
Syl. pt. 2, id. But see W. Va. Code § 48-4-11(a) (1984) (Repl. Vol.
1996) (directing, in pertinent part, that "[u]pon the entry of such order of
adoption, any person previously entitled to parental rights . . . and the lineal
or collateral kindred of any such person, parent or parents . . . shall be
divested of all legal rights" with respect to the adopted child, thereby suggesting,
in light of Nearhoof, that an adoption of a child by one who is not that child's
step-parent would divest the child's grandparent of his/her statutory visitation rights).
In recent years, the recognized rights of grandparents have
continued to expand through both statutory definition and judicial interpretation. Today,
West Virginia statutory law permits a grandparent to seek visitation not only when his/her
own child, the grandchild's parent, is deceased, see W. Va. Code § 48-2B-4
(1992) (Repl. Vol. 1996), but also where the grandparent's child has not appeared or
defended a divorce, annulment, or separate maintenance action, see W. Va. Code
§ 48-2B-2 (1992) (Repl. Vol. 1996); where the grandparent's own child has abandoned or
abrogated his/her visitation rights or there exists judicial preclusion of such visitation
rights, see W. Va. Code § 48-2B-3 (1992) (Repl. Vol. 1996); when the
grandchild has previously resided with the grandparent seeking visitation for at least six
months in the preceding two years, see W. Va. Code § 48-2B-5 (1992) (Repl.
Vol. 1996); and where the grandchild's parents are not married, see W. Va.
Code § 48-2B-6 (1992) (Repl. Vol. 1996). In the majority of these circumstances, though,
the grandparent derives his/her rights through his/her own child, the parent of the
subject grandchild. Additionally, each instance of possible visitation rights is
conditioned upon the fulfillment of numerous prerequisites.
As these statutory amendments pertain to the instant case, it
is apparent that Dr. Kessel today might enforce his grandparental rights under W. Va.
Code § 48-2B-6, which permits "[g]randparent visitation where [the grandchild's]
parents [are] unwed."See footnote 107 107 However, Dr. Kessel's success under even this provision is questionable
given the ambiguous requirement that "[t]he parent of the minor child through whom
the grandparent is related is precluded by court order from visitation with the minor
child. . .," W. Va. Code § 48-2B-6(a)(2), since it is unclear whether
judicial preclusion via termination of parental rights incident to an adoption satisfies
this element, or whether this criterion contemplates the preservation of parental rights
but the denial of visitation due to various circumstances, e.g., inability to
provide appropriate care, abusive or neglectful behavior, and the like.
Likewise, the West Virginia judiciary, following the
Legislature's trend, has continued to recognize the expanding rights accorded
grandparents. Most recently, in Syllabus point 2 of Elmer Jimmy S. v. Kenneth B.,
199 W. Va. 263, 483 S.E.2d 846 (1997), we recognized that:
W. Va. Code § 48-2B-1 et seq.
affords circuit courts jurisdiction to consider grandparent visitation under the limited
circumstances provided therein, even though the parental rights of the parent through whom
the grandparent is related to the grandchild or grandchildren have been terminated.
Generally, those circumstances, as contemplated by W. Va. Code § 48-2B-2 to -6 (1992)
(Repl. Vol. 1996), are: (1) where divorce or separate maintenance is ordered and the
parent has not appeared, etc.; (2) upon abandonment or abrogation of visitation rights by
the grandchild's parent or judicial preclusion of such visitation; (3) when the parent
through whom the grandparent is related is deceased; (4) when the minor child has resided
with the grandparent for six consecutive months or more within the past two years; and (5)
under certain circumstances when the parents of the child are unwed. . . .
In addition, this Court, in 1997, adopted the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, Rule 15 of which defines the scope of grandparent
visitation in the context of abuse and neglect proceedings. See also W. Va. R.
P. for Child Abuse & Neglect Proceedings n.1 (accompanying Rule 15) (same).
Nevertheless, it appears that while "[t]he rights of grandparents relating to
grandchildren have been expanding over the past twenty years, . . . those rights
are limited in the main to rights of visitation." State ex rel. David Allen B. v.
Sommerville, 194 W. Va. 86, 90, 459 S.E.2d 363, 367 (1995). Even under the rubric
of expanded grandparents' visitation rights, though, such statutory and judicial
protections are "in no measure a guarantee of the right to visitation." Mary
Jean H. v. Pamela Kay R., 198 W. Va. 690, 693, 482 S.E.2d 675, 678 (1996) (per
curiam).
Despite the increased scope of grandparents' visitation rights contained in recent statutory and common law, we cannot expand our recognition in this case of a parent's cause of action for interference with his/her parental rights to encompass alleged interference with one's grandparental rights as urged by Dr. Kessel. In his arguments before this Court, Dr. Kessel does not cite any authority permitting a grandparent to maintain a cause of action for tortious interference with his/her grandparental rights and, in fact, has conceded that such a claim is novel and unprecedented. Likewise, we can locate no authority to support the recognition of such a cause of action.See footnote 108 108 Although, as discussed above, this State has broadened the realm of grandparents' rights, when compared with the rights accorded a child's parents, grandparents' rights continue to be rather limited.See footnote 109 109 Accordingly, we are reluctant to expand grandparental rights in a manner that has not previously been contemplated by either this Court or the West Virginia Legislature.See footnote 110 110 Therefore, we find that the circuit court did not err in directing a verdict for the defendants with respect to Dr. Kessel's claims.
III.
CONCLUSION
Throughout our review of the facts of this case and the various
authorities which helped to shape our decision, we have come to appreciate the real
problems plaguing the general process by which adoptions are commenced and consummated.See footnote 111 111 As evidenced
by the instant appeal, frequently at odds are the competing interests of the biological
mother, who wishes to promptly secure an appropriate home for her child; the biological
father, who may hope to participate in his child's upbringing; the adoptive parents, who
desire an adoption procedure that, emotional though it may be, is as quick and painless as
possible; and the child, who is entitled to live in a stable, loving, and caring
environment. Unfortunately, though, the child, whose interests should be paramount, often
is the innocent victim of his/her parents' conflicting interests.
Several cases receiving national prominence and involving the trampling, or unintentional ignorance, of a biological father's rights have resulted in the wrenching of children from their adoptive families, a particularly traumatic event for a young child who has known no other family and regards his/her biological father as a comparative stranger.
See, e.g., In re B.C.G., 496 N.W.2d 239 (Iowa 1992) and In re Clausen,
442 Mich. 648, 502 N.W.2d 649 (1993) (per curiam) (case of "Baby Jessica"); In
re Doe, 638 N.E.2d 181 (Ill. 1994) and In re Kirchner, 649 N.E.2d 324 (Ill.
1995) (case of "Baby Richard"). See also Julie Evans, "Please
Don't Take Our Child," Woman's Day, Mar. 14, 1995, at 83; Mark Hansen, Fears
of the Heart, A.B.A. J., Nov., 1994, at 58. Cf. Honaker v. Burnside, 182
W. Va. 448, 388 S.E.2d 322 (1989) (recognizing that child had strong familial
relationship with her stepfather and half-brother, but returning custody of child to her
biological father following death of her biological mother).
The instant appeal, though not precisely a case of this nature,
also involves the competing interests of the child's parents, but incorporates an
additional element as well: the intercountry placement of a child for adoption. For
whatever reasons, Anne placed Baby Boy Conaty into Canada for adoption. These facts are
not those of an isolated occurrence. Rather, it has been suggested that such intercountry
placements are increasingly common as a method by which to thwart a biological father's
parental rights. See Alexandra Maravel, Intercountry Adoption and the Flight
From Unwed Fathers' Rights: Whose Right is it Anyway?, 48 S.C. L. Rev. 497 (1997).
While today's decision is not an appropriate forum in which to
dissect and repair all of the ailments of existing adoption procedures, which, in fact,
have been remedied to some degree by various legislative amendments enacted subsequent to
the facts underlying this case,See footnote 112 112 we have been able to redress, in part, the intentional deprivation of a
biological father's right to establish a relationship with his child. By today's decision,
we do not intend to haphazardly intrude upon a biological mother's right to conduct her
pregnancy in the manner in which she, herself, chooses. Nevertheless, we recognize with
equal importance the right of a biological father, who has "grasped the
opportunity," to establish a relationship with his child, and the corresponding,
albeit limited, right of a child to associate with his/her biological father. See, e.g.,
In re Adoption of B.G.S., 556 So. 2d 545, 551 (La. 1990) ("[A] parent has a
natural right to his biological child and . . . a child likewise has a right to
his parent." (citations omitted)). We hope by our decision to deter future conduct
that would unfairly and inequitably infringe upon such associational rights.
Finally, though of no consequence to our final resolution of
this appeal, we are mindful of the prophylactic effect today's decision undoubtedly will
have with respect to the rights of a child who is the subject of adoption proceedings.
Through greater respect for the biological mother's and biological father's parental
rights, we hope to achieve greater consideration of the child's rights, both to enjoy a
prompt resolution of conflicting custodial claims (e.g., by the child's
pre-adoptive parents and his/her biological father), and to be assured of the opportunity
to associate with his/her biological father, if he has demonstrated a sufficient interest
in establishing and maintaining a parent-child relationship and if such an arrangement is
in the child's best interests. See, e.g., State Dep't of Health & Human
Resources, Child Advocate Office ex rel. Cline v. Pentasuglia, 193 W. Va. 621,
624, 457 S.E.2d 644, 647 (1995) ("'The child also has a fundamental right, not shared
by the mother, to establish the father-child relationship, and in exercising that right
there clearly is potential for conflict between the mother's interest and the child's
interest.'" (quoting Commonwealth, Dep't of Social Serv., Div. of Child Support
Enforcement ex rel. Gray v. Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989))
(footnote omitted)); In the Interest of Brandon L.E., 183 W. Va. 113, 121, 394 S.E.2d 515, 523 (1990) ("A child has rights too, some of which are of a
constitutional magnitude.") (internal quotations and citations omitted).
For the reasons expressed in the body of this opinion, the
final order of the Circuit Court of Cabell County, upholding the jury verdict rendered in
the trial underlying this appeal, is hereby affirmed.
Affirmed.
Footnote: 1
1 By administrative order entered January 5, 1998, this Court recalled to active service retired Justice Thomas E. McHugh to continue his participation in the consideration and decision of this appeal.
Footnote: 2 2 David Keene Leavitt, who was named as a defendant to the underlying action, unsuccessfully attempted to appeal the adverse jury verdict rendered against him. This Court dismissed his appeal when he refused to post the requested appeal bond. For further discussion of the dismissal of Leavitt's appeal, see infra note 20 and Section II.A.
Footnote: 3 3 Neither Anne nor John dispute that Anne's pregnancy resulted from their relationship or that they are the biological parents of this child.
Footnote: 4 4 At the time of her pregnancy, Anne was an elementary school teacher. During this same period of time, John was fulfilling his residency requirements for the completion of his specialized medical training.
Footnote: 5 5 Anne testified that she first spoke with Leavitt while she was in North Carolina.
Footnote: 6 6 The atypical phrase "inverse paternity action" refers to a paternity proceeding initiated by a putative father to determine whether he is, in fact, the biological father of a nonmarital child. In such a proceeding, the biological mother of the child is generally named as a defendant to the action. See, e.g., In re Adoption of Pierce, 15 Cal.
App. 3d 244, 247, 93 Cal. Rptr. 171, 172 (1971); In re Adoption of Pierce, 5 Cal. App. 3d 316, 318, 85 Cal. Rptr. 104, 104-05 (1970). See also Hixon v. Buchberger, 306 Md. 72, 73-74, 507 A.2d 607, 607 (1986) (describing lawsuit initiated by putative father to establish paternity of child as "reverse paternity action"). The unusual arrangement of the parties to an inverse paternity action is in contrast to the more common scenario in which a biological mother, a nonmarital child, or a representative of a state agency initiates a proceeding against a putative biological father, thereby naming him as a defendant to the action.
Footnote: 7 7 While Leavitt established the initial contact with the Oregon prospective adoptive parents, Anne also participated, to some degree, in the selection of this family.
Footnote: 8 8 The Oregon attorney wanted to notify John of the adoption arrangements between Anne and the Oregon couple even though John did not have, under then-existing Oregon law, an unconditional right either to notice of Anne's adoptive placement of their child or to withhold his consent to this adoption. See Or. Rev. Stat. § 109.092 (1975) (Act, 1975 Oregon Laws 1600, ch. 640, § 2) [current Or. Rev. Stat. § 109.092 (1995) (Main Vol. 1997)] (regarding consent to adoption by mother who is not married); Or. Rev. Stat. § 109.096 (1983) (Act, 1983 Oregon Laws 1272, 1283, ch. 709, § 39) [current Or. Rev. Stat. § 109.096 (1995) (Main Vol. 1997)] (defining notice requirements); Or. Rev. Stat. § 109.225 (1991) (Main Vol. 1997) (describing procedures for registration of paternity actions). Leavitt, however, opposed such notification presumably because this notice could have led to John's registration of his inverse paternity action in Oregon and the attendant difficulty of locating a permanent adoptive placement for Anne's unborn child.
Footnote: 9 9 Anne registered at the hospital using the name "Rita Wiseman". Anne testified that she used an alias because she was afraid of John and desired to maintain her privacy. Leavitt's client file on Anne demonstrates that Leavitt and Anne contemplated her use of this alias during one of their initial consultations.
Footnote: 10 10 Leavitt testified that he placed an advertisement in the Huntington telephone book yellow pages only once, in 1991. In this advertisement, Leavitt represented that he provided legal services in the field of adoption law.
Footnote: 11 11 Presumably, John sought information regarding Anne's location in order to obtain information from her regarding the whereabouts of and pre-adoptive arrangements concerning Baby Boy Conaty.
Footnote: 12 12 Defendant Leavitt testified that the California Rules of Evidence governing attorneys required him to affirmatively assert the attorney-client privilege in this situation. See Cal. Evid. Code § 955 (1965) (Main Vol. 1995) (defining situations in which attorney is required to claim attorney-client privilege).
Footnote: 13 13 The concealment portion of the note arose from Leavitt's concern that John
would attempt to thwart the Canadian adoption. Pursuant to the law of Alberta, Canada, as it existed in 1991, once a child had resided with legal guardians for an uninterrupted period of six months, the Alberta courts were almost certain to approve the petition of the legal guardians to adopt that child. See Alexandra Maravel, Intercountry Adoption and the Flight from Unwed Fathers' Rights: Whose Right Is It Anyway?, 48 S.C. L. Rev. 497, 522- 23 (1997). Once this six-month period had expired, it would be very difficult to persuade the Canadian judiciary to remove the child from the prospective adoptive home. See id.
Footnote: 14 14 On August 26, 1991, the Court of Queen's Bench of Alberta, Judicial District of Calgary, had terminated Anne's parental rights and approved the Canadian
couple as the sole legal guardians of Baby Boy Conaty.
Footnote: 15 15 During the course of the proceedings below, the circuit court granted a directed verdict in favor of the defendants with respect to Dr. Kessel's claims for interference with his grandparental rights. Accordingly, for the purposes of accuracy and ease of reference, the term "plaintiff" hereinafter will be used to refer solely to John.
Footnote: 16 16 The jury apportioned the fault of the defendants with regard to fraud as follows: Leavitt 55% fault; Brian 25% fault; Anne 10% fault; Dr. Conaty 5% fault; and Mrs. Conaty 5% fault.
Footnote: 17 17 The jury assigned the following percentages of fault for the tortious interference claim: Leavitt 35% fault; Brian 25% fault; Anne 30% fault; Dr. Conaty 2% fault; and Mrs. Conaty 8% fault.
Footnote: 18 18 See infra Section II.E.1. for the specific amounts of compensatory damages calculated by the jury. The circuit court subsequently amended the compensatory damages award, by order dated December 28, 1995. In this order, the circuit court determined that the plaintiff's expenses were actually $116,687.47 as opposed to the $150,000.00 awarded by the jury. Thus, the compensatory damages award, as amended, is approximately $1.97 million, exclusive of any applicable interest which has accrued on this judgment.
Footnote: 19 19 See infra Section II.E.2. for a discussion of the punitive damages awarded by the jury.
Footnote: 20 20 Although defendant Leavitt requested and was granted leave to appeal to this Court, his appeal herein was dismissed due to his failure to post the appeal bond required of him. See supra note 2 and infra Section II.A. for further treatment of this Court's dismissal of Leavitt's appeal.
Footnote: 21 21 See also Duncan v. Tucker County Bd. of Educ., 149 W. Va. 285, 288, 140 S.E.2d 613, 615 (1965) ("Jurisdiction of the person may be conferred by consent or waiver[.]" (emphasis added)); Morris v. Calhoun, 119 W. Va. 603, 605, 195 S.E. 341, 344 (1938) ("In the ordinary civil case, jurisdictional questions, especially those respecting
jurisdiction of the parties, may be waived[.]"). See generally 11B Michie's Jur. Jurisdiction § 21, at 46 (1986) ("Jurisdiction of the person may be acquired by implication arising out of some act done[.]") and § 35, at 60 ("Because objections to the court's jurisdiction over specific persons involve the rights of individuals to object to the exercise of judicial authority over them and not the power inherent in the court to resolve conflicts between individuals properly before it, parties can confer personal jurisdiction expressly or by their acts or failures to act." (emphasis added)).
Footnote: 22 22 The remaining defendants do not argue or otherwise complain that the circuit court's exercise of personal jurisdiction as to them was improper.
Footnote: 23 23 See also United States Dep't of Labor v. Triplett, 494 U.S. 715, 720, 110 S. Ct. 1428, 1431, 108 L. Ed. 2d 701, 713 (1990) ("Ordinarily, . . . a litigant '"must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."'" (quoting Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S. Ct. 752, 760, 70 L. Ed. 2d 700, 711 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343, 355 (1975) (citations omitted)) (footnote omitted))); New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984) (acknowledging that "'a party has no standing to assert a right if it is not his own'" (quoting United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969))
(footnote omitted)); DuPree v. United States, 559 F.2d 1151, 1153 (9th Cir. 1977) ("[T]he presence of harm to a party does not permit him to assert the rights of third parties in order to obtain redress for himself." (citation omitted)).
Footnote: 24 24 See, e.g., Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791,
120 L. Ed. 2d 674 (1992) (recognizing women have right to seek and obtain
abortion without notifying their husbands); Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976)
(plurality opinion) (declaring women have right to seek and obtain abortion without
spousal consent or, in the case of unmarried minors seeking and obtaining abortion,
without parental consent); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35
L. Ed. 2d 147 (1973) (holding women have qualified right to terminate pregnancy
during period of fetal nonviability); Eisenstadt v. Baird, 405 U.S. 438, 92
S. Ct. 1029, 31 L. Ed. 2d 349 (1972) (finding unmarried persons have right
to obtain contraceptives); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.
1678, 14 L. Ed. 2d 510 (1965) (acknowledging married persons have right to
obtain contraceptives); Skinner v. Oklahoma ex. rel. Williamson, 316 U.S. 535, 62
S. Ct. 1110, 86 L. Ed. 1655 (1942) (declaring individuals have fundamental right
of procreation). Cf. Doe v. Smith, 486 U.S. 1308, 108 S. Ct. 2136, 100
L. Ed. 2d 909 (1988) (refusing to permit unwed biological father to enjoin unwed
biological mother from obtaining abortion).
In addition, individuals have a firmly established right to travel. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329, 22 L. Ed. 2d 600, 612 (1969) ("[T]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement."), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 1178, 16 L. Ed. 2d 239, 249 (1966) ("The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union."); Edwards v. California, 314 U.S. 160, 178, 62 S. Ct. 164, 169, 86 L. Ed. 119, 127 (1941) ("The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment[.]"); Williams v. Fears, 179 U.S. 270, 274, 21 S. Ct. 128, 129, 45 L. Ed. 186, 188 (1900) ("Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.").
Footnote: 25 25 For further treatment of the abolishment of the maternal preference and the recognition of a parent's custodial rights, see Section II.C.3., infra.
Footnote: 26 26 The Fourteenth Amendment to the United States Constitution guarantees that no "State [shall] deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1.
Footnote: 27 27 Article III, Section 10, of the West Virginia Constitution ensures that "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers."
Footnote: 28 28 Many of our sister jurisdictions have also recognized an unwed biological father's interest in maintaining a parent-child relationship with his biological child when he demonstrates a willingness to accept the responsibilities of fatherhood. See, e.g., Adoption of Kelsey S., 1 Cal. 4th 816, 849, 4 Cal. Rptr. 2d 615, 635, 823 P.2d 1216, 1236 (1992) ("If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotional, financial, and otherwise--his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother." (footnote omitted)); Jermstad v. McNelis, 210 Cal. App. 3d 528, 550, 258 Cal. Rptr. 519, 532 (1989) (recognizing that "where the natural father has promptly come forward to grasp his opportunity interest and diligently pursued that interest" he has "'the opportunity to establish a protected custodial relationship'" with his child (quoting In re. Baby Girl M., 37 Cal. 3d 65, 74, 207 Cal. Rptr. 309, 315, 688 P.2d 918, 924 (1984))); Appeal of H.R., 581 A.2d 1141, 1162 (D.C. App. 1990) (per curiam) (separate opinion of Ferren, Assoc. J.) ("[W]hether a particular unwed, noncustodial father's opportunity interest will be entitled to substantial protection under the due process clause depends on application of such factors as (1) the presence or absence of an established relationship between the child and an existing family; (2) whether the father has established a custodial, personal, or financial relationship with his child, or assumed responsibilities during the mother's pregnancy; (3) the impact, if any, of state action on the father's opportunity to establish a relationship with his child; (4) the age of the child when the action to terminate parental rights is initiated; and (5) the natural father's invocation or disregard of statutory safeguards designed to protect his opportunity interest."); In the Matter of Adoption of Doe, 543 So. 2d 741, 748 (Fla. 1989) ("[T]he biological relationship offers the parent the opportunity to assume parental responsibilities. Parental rights based on the biological relationship are inchoate, it is the assumption of the parental responsibilities which is of constitutional significance."); In re Baby Girl Eason, 257 Ga. 292, 296, 358 S.E.2d 459, 462 (1987) ("[U]nwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost."); In the Matter of the Petition of Steve B.D., 112 Idaho 22, 25, 730 P.2d 942, 945 (1986) (per curiam) ("[I]n order to secure the protection of the Fourteenth Amendment Due Process and Equal Protection Clauses, the unwed father must grasp the opportunity to make a significant custodial, personal, financial, and legal connection with the child." (internal quotation and citations omitted)); In the Matter of R.E., 645 So. 2d 205, 207 (La. 1994) ("When an unwed father demonstrates a full commitment to the responsibilities of parenthood and an ability to participate beneficially in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the state and federal due process clauses." (citations omitted)); In re Application of S.R.S., 225 Neb. 759, 408 N.W.2d 272 (1987) (per curiam) (finding unwed biological father had protected interest in relationship with his son where he continuously provided for and interacted with his son during son's
first two years of life and repeatedly attempted to ascertain son's whereabouts after unwed biological mother unilaterally placed son for adoption); In re Adoption of Zschach, 75 Ohio St. 3d 648, 653, 665 N.E.2d 1070, 1075 (1996) (acknowledging that only "if a biological father comes forward and accepts the full responsibilities of parenthood [will he] be extended full protection of that relationship"), cert. denied sub nom, Johnson v. Zschach, ___ U.S. ___, 117 S. Ct. 582, 136 L. Ed. 2d 513 (1996); In the Matter of the Adoption of Baby Boy W., 831 P.2d 643, 646 (Okla. 1992) (noting that unwed biological father's parental interest will be preserved only where he has exercised statutory "'parental rights and duties toward the child,'" which include "contributing to the support of the mother during the pregnancy and contributing to the support of the child after its birth" (citation omitted)); In the Matter of the Adoption of Baby Boy D, 742 P.2d 1059, 1067 (Okla. 1985) ("The Constitution protects only parent-child relationships of biological parents who have actually committed themselves to their children and have exercised responsibility for rearing their children."). Cf. B.G. v. H.S., 509 N.E.2d 214, 217 (Ind. App. 1987) (requiring unwed biological father to file paternity action in order to protect his "opportunity to develop a responsible relationship with his child"). But see, e.g., Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978) (determining that unwed biological father did not have protected right to veto his eleven-year-old son's adoption by husband of child's mother where father had never lived with child, regularly supported child, exercised custody of child, or attempted to legitimate child until after adoption petition had been filed); In the Matter of Adoption of Doe, 543 So. 2d 741, 749 (finding unwed biological father had no right to establish relationship with his child when he failed to "provide prebirth support to the unwed pregnant mother when such support [was] needed and within his means"); In the Matter of the Petition of Steve B.D., 112 Idaho 22, 730 P.2d 942 (concluding unwed biological father did not have protected interest in relationship with his child where he did not marry child's mother before child's birth; failed to pay for birth expenses; never provided for child's financial support; made no attempt to interact with child; and delayed the initiation of legal proceedings to establish his parental interest); Robert O. v. Russell K., 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (determining biological father had lost his protected interest in his child by not promptly demonstrating his commitment to parenthood; unwed biological father failed to ascertain that biological mother was pregnant with his child, although biological mother had not attempted to conceal fact of her pregnancy from him, or to take any steps to assert his parental rights until he learned of child's existence some ten months after child's adoption had been finalized); In re Adoption of Baby Boy Dearing, 98 Ohio App. 3d 197, 648 N.E.2d 57 (1994) (finding putative father's interest in personal contact with
child to be entitled to no protection because he did not participate in rearing, care, or support of child); In the Matter of the Adoption of Baby Boy D, 742 P.2d 1059, 1068 (refusing to protect unwed biological father's interest in parent-child relationship with his son where he provided no financial support or care for child's mother during her pregnancy; made no attempt to ascertain when and where his child would be born; and generally failed to assume any responsibilities of parenthood). But cf. In re Clausen, 442 Mich. 648, 684 n.43, 502 N.W.2d 649, 665 n.43 (1993) (per curiam) ("[P]rompt action by the father to assert parental rights, combined with the father's being prevented from developing a relationship with the child by actions of the courts or the custodians, are factors that excuse or mitigate the failure to establish such a relationship." (citations omitted)).
Footnote: 29 29 Accord Adoption of Michael H., 10 Cal. 4th 1043, 1060, 43 Cal. Rptr. 2d 445, 455, 898 P.2d 891, 901 (1995) (holding that unwed biological father has no constitutionally protected interest in his newborn child "unless he shows that he promptly came forward and demonstrated as full a commitment to his parental responsibilities as the biological mother allowed and the circumstances permitted within a short time after he learned or reasonably should have learned that the biological mother was pregnant with his child" (emphasis added)), cert. denied sub nom, Mark K. v. John S., 516 U.S. 1176, 116 S. Ct. 1272, 134 L. Ed. 2d 219 (1996); Robert O. v. Russell K., 80 N.Y.2d 254, 262, 590 N.Y.S.2d 37, 40, 604 N.E.2d 99, 102 (1992) ("[T]he unwed father of an infant placed for adoption immediately at birth faces a unique dilemma should he desire to establish his
parental rights. Any opportunity he has to shoulder the responsibility of parenthood
may disappear before he has a chance to grasp it, no matter how willing he is to do so.
Accordingly . . . in some instances the Constitution protects an unwed father's opportunity
to develop a relationship with his infant son or daughter . . . . The right
exists only for the unwed father who manifests his willingness to assume full custody of
the child and does so promptly." (citation omitted)); In the Matter of Raquel
Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 861, 559 N.E.2d 418, 424 (1990)
("[A]n unwed father who has been physically unable to have a full custodial
relationship with his newborn child is . . . entitled to the maximum protection
of his relationship, so long as he promptly avails himself of all the possible
mechanisms for forming a legal and emotional bond with his child
. . . . [H]owever, . . . in order to have the benefit of the
maximum protection of the relationship . . . the biological father not only must
assert his interest promptly . . . but also must manifest his ability and
willingness to assume custody of the child[.]" (emphasis added) (citations omitted)).
Numerous state courts also have devised detailed examples of pre-birth conduct by an unwed biological father indicative of his timely assumption of parental responsibilities. See, e.g., Adoption of Kelsey S., 1 Cal. 4th 816, 849, 4 Cal. Rptr. 2d 615, ___, 823 P.2d 1216, 1236-37 ("The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child--not merely to block adoption by others.' . . . A court should also consider the father's public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (quoting In the Matter of Raquel Marie X., 559 N.Y.S.2d 855, 865, 76 N.Y.2d 387, 408, 559 N.E.2d 418, 428 (1990)) (footnote omitted)); Adoption of Michael H., 10 Cal. 4th at 1056, 43 Cal. Rptr. 2d at 452, 898 P.2d at 898 ("To the extent the mother needs such critical [prenatal] assistance and the unwed father is able to provide it, the father, as one of the two individuals responsible for the pregnancy, should be encouraged to do so early on and should not be granted constitutional protection after birth if he has failed to timely fulfill this responsibility."); In the Matter of Adoption of Doe, 543 So. 2d 741, 746 (Fla. 1989) ("[A]n unwed father's prebirth conduct in providing or failing to provide support responsibilities and medical expenses for the natural mother is relevant to the issue of abandonment."); In re Adoption of B.G.S., 556 So. 2d 545, 551 (La. 1990) (citing examples of conduct of unwed biological father that
"amply demonstrated his dedication to his parental responsibilities": indicating, before his child's birth, his opposition to unwed biological mother's intention to place child for adoption; formally acknowledging paternity of his child; seeking notice of and actively opposing adoption proceedings; attempting to have himself designated as child's father on original birth certificate; seeking custody through habeas corpus proceedings; inserting his name as child's father on re-issued birth certificate; timely pursuing litigation; and legitimating child by marrying child's biological mother); In the Matter of Raquel Marie X., 76 N.Y.2d 387, 408, 559 N.Y.S.2d 855, 865, 559 N.E.2d 418, 428 (conduct evidencing unwed biological father's commitment to parenthood "may include such considerations as his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child").
Footnote: 30 30 Implicit in our decision of this case is the necessarily limited scope of an unwed biological father's rights where a man attains fatherhood solely by virtue of his uninvited sexual conduct. Thus, we adopt with approval the artful clarification of these qualified rights by the Supreme Court of California:
At the risk of stating the obvious, we
caution that our decision affords no protection, constitutional or otherwise, to a male
who impregnates a female as a result of nonconsensual sexual intercourse. We find nothing
in the relevant high court decisions that provides such a father a right to due process in
connection with the custody and adoption of his biological child. Such a father also is
not entitled to equal protection, i.e., the same rights as the mother, because the father
and mother are clearly not similarly situated. The sexual intercourse was voluntary only
for the father. Nor is such father entitled to be treated similarly to those males who
become fathers as a result of consensual sexual intercourse.
Adoption of Kelsey S., 1 Cal. 4th 816, 849 n.14, 4 Cal. Rptr. 2d 615, 636 n.14, 823 P.2d 1216, 1237 n.14.
Footnote: 31 31 As we often have stated, an important consideration in determining whether an unwed biological father will be permitted to maintain a relationship with his child is whether the maintenance of the relationship would be consistent with the child's best interests. See, e.g., State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 638, 474 S.E.2d 554, 568 (1996) ("Although a parent has a protectable interest in a child, a parent's rights are not absolute: '[t]he welfare of the child is the paramount consideration to which all of the factors, including common law preferential rights of the parents, must be deferred or subordinated.'" (quoting Johnson v. Johnson, 120 N.C. App. 1, 13, 461 S.E.2d 369, 376 (1995), rev'd per curiam on other grounds, 343 N.C. 114, 468 S.E.2d 59 (1996)) (additional internal quotations and additional citations omitted)); Syl. pt. 7, Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995) ("Cases involving children must be decided not just in the context of competing sets of adults' rights, but also with a regard for the rights of the child(ren)."); Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) ("[T]he best interests of the child is the polar star by which decisions must be made which affect children." (citation omitted)); Pierce v. Jeffries, 103 W. Va. 410,
413-14, 137 S.E. 651, 652 (1927) ("It is well settled in this state that the
welfare of the child is of paramount importance in determining who is entitled to its
custody, and that the welfare of the child is to be regarded more than the technical
rights of the parent.").
We note additionally, in a tenuously related context, that the record accompanying this appeal seems to indicate that no guardian ad litem was appointed to protect the interests of Baby Boy Conaty with respect to his pre-adoptive placement into Canada and ultimate adoption in that country. While we do not glean any evidence to suggest that this omission irreparably harmed the parties' child or that the Canadian couple is not able to provide a suitable home for the infant, we nevertheless are concerned that, while the numerous adults involved in the adoption arguably were contemplating the child's interests, as well as their own, no one adult was solely concerned with the welfare of the child who was at the heart of the matter. Consistent with our desire to protect the interests of minor children which are not otherwise safeguarded, we recommend that, in future cases affecting the permanent custody of a child, a guardian ad litem be appointed to ensure that any proposed custodial arrangement does in fact benefit and promote the child's safety and well-being. See Carter v. Carter, 196 W. Va. 239, 251 n.23, 470 S.E.2d 193, 205 n.23 (1996) ("We suggest that when a case involves the unrepresented interests of a child, . . . the circuit court appoint a guardian ad litem to assure protection of the children's interest." (citations omitted)); State Dep't of Health & Human Resources, Child Advocate Office ex rel. Cline v. Pentasuglia, 193 W. Va. 621, 625, 457 S.E.2d 644, 648 (1995) ("'Although historically courts have addressed issues affecting children primarily in the context of competing adults' rights, the present trend in courts throughout the country is to give greater recognition to the rights of children, including their right to independent representation in proceedings affecting substantial rights.'" (emphasis in original) (quoting Cleo A.E. v. Rickie Gene E., 190 W. Va. 543, 546, 438 S.E.2d 886, 889 (1993))).
Footnote: 32 32 Our discussion and decision of the fraud issue focuses upon the single inquiry of whether the defendants, individually or collectively, had a duty to disclose to John the information he requested, and they concealed from him, pertaining to the whereabouts of Baby Boy Conaty following his birth. We do not reach the issue of whether the defendants, or defendant Anne specifically, had a duty to notify John of either the circumstances surrounding her placement of their child for adoption or the subsequent Canadian adoption proceedings. Neither the circuit court's instructions nor the parties' briefs before this Court argue that the law applicable to the child's adoptive placement required Anne to provide such notice to John. To the contrary, our preliminary inquiry into this area suggests that the law governing this 1991 adoptive placement would not have required such notice to have been given. See Marr v. Superior Court, 114 Cal. App. 2d 527, 250 P.2d 739 (1952) (suggesting that consent to adoption must comply with laws of jurisdiction in which adoption petition is filed); Estate of Johnson v. Johnson, 100 Cal. App. 2d 73, 223 P.2d 105 (1950) (indicating that validity of adoption is determined by laws of state or foreign country in which adoption is finalized); Alexandra Maravel, Intercountry Adoption and the Flight From Unwed Fathers' Rights: Whose Right is it Anyway?, 48 S.C. L. Rev. 497, 522-23 & n.159 (1997) (describing notice requirements in Alberta, Canada, as requiring "notice to a biological father [only] if there [is] no permanent guardianship agreement or order," but instructing that "[t]he court may, however, dispense with any required notice except notice to the director of child and family services"; also revealing that "only the parties petitioning for adoption (and the child if at least twelve years of age) are entitled to be heard at the [final adoption] hearing before the court" (footnotes omitted)). See also Robert O. v. Russell K., 173 A.D.2d 30, __, 578 N.Y.S.2d 594, 597 (1992) ("It is well settled that a 'natural mother ha[s] no obligation to . . . volunteer any information with respect to [the father.]'" (emphasis added) (quoting Matter of Jessica XX., 54 N.Y.2d 417, 427, 446 N.Y.S.2d 20, 24, 430 N.E.2d 896, 900 (1981), aff'd sub nom, Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983)), aff'd, 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992). Cf. Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (implying that biological fathers are entitled to notice of pending adoption proceedings by holding unconstitutional New York statute that permitted biological mothers, but not biological fathers, to block adoption by withholding consent); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (holding that unwed biological father is entitled to hearing and, impliedly, notice of any hearing prior to effecting change of child's custody); Adoption of Michael D., 209 Cal. App. 3d 122, 130, 256 Cal. Rptr. 884, 889 (1989) (noting that California statutory law requires that biological father be notified of pending adoption petition and that he be afforded "the right to be heard with respect to the proposed adoption" (citation omitted)), superseded by statute as noted in In re Mario C., 226 Cal. App. 3d 599, 276 Cal. Rptr. 548 (1990); Cheryl H. v. Superior Court, 41 Cal. App. 3d 273, 280, 115 Cal. Rptr. 849, 853 (1974) (recognizing, in adoption context, that unwed biological father "is entitled to notice of any proceeding involving change in legal custody" of child).
Footnote: 33 33 By our recognition of John's parental rights we in no way intend to unnecessarily trammel Anne's decisional rights; instead, we adhere to our prior practice and afford those personal rights of decision the utmost respect. See Farley v. Sartin, 195 W. Va. 671, 683-84, 466 S.E.2d 522, 534-35 (1995) (emphasizing that holding, which permitted wrongful death action to be maintained for tortious death of nonviable unborn child, "neither affects nor interferes with the constitutional protection afforded a woman who chooses to have an abortion, as was set forth originally in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)"; announcing further that "a wrongful death action will not lie against a woman who chooses to exercise her constitutional right to have an abortion. By definition, if a woman has a constitutional right to decide whether to carry an unborn child to term or abort it, then the act of aborting is not tortious. In such cases, the reasons for invoking the wrongful death statute do not apply; there is no tortious conduct to deter." (footnotes omitted)). We wish only to emphasize that once Baby Boy Conaty was born, he had two biological parents who had nearly co-equal rights to establish a parent-child relationship with him.
Footnote: 34 34 Seizing upon this language, other jurisdictions have also recognized a cause of action for fraudulent concealment pursuant to § 550 of the Restatement (Second) of Torts. See, e.g., Fox v. Kane-Miller Corp., 542 F.2d 915, 918-19 (4th Cir. 1976) (recognizing cause of action "based upon concealment which is 'intentional[ly] and effective[ly ]the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact'" (quoting Fegeas v. Sherrill, 218 Md. 472, 476-77, 147 A.2d 223, 225 (1958))); Roadmaster Industries, Inc. v. Columbia Mfg. Co., Inc., 893 F. Supp. 1162, 1179 (D. Mass. 1995) ("[I]n order to establish fraudulent concealment, a plaintiff must prove that the defendant took affirmative steps to conceal defects or to prevent the plaintiff from acquiring knowledge of the defects. . . . In addition to establishing intentional concealment of [material] information . . ., it must be established that the defendant owed to the plaintiff a fiduciary duty or other similar relation of trust and confidence that required disclosure." (citations omitted)); Stevens v. Superior Court, 180 Cal. App. 3d 605, 608-09, 225 Cal. Rptr. 624, 626 (1986) (noting that "intentional concealment of a material fact is an alternative form of fraud and deceit equivalent to direct affirmative misrepresentation" (citations omitted)); Davidson v. Rogers, 431 So. 2d 483, 485 (Miss. 1983) ("In order to recover damages for fraudulent concealment, [the plaintiff] must demonstrate [the defendant] took some action, affirmative in nature, which was designed or intended to prevent and which did prevent, the discovery of the facts giving rise to the fraud claim." (footnote omitted)); Roberts v. Estate of Barbagallo, 366 Pa. Super. 559, 568-69, 531 A.2d 1125, 1130 (1987) (stating that liability for fraud under § 550 "may arise by . . . an intentional concealment of true facts which is calculated to deceive the other party" (citation omitted)); Paul v. Kelley, 42 Or. App. 61, 65-66, 599 P.2d 1236, 1238-39 (1979) (explaining difference between "simple nondisclosure," which requires a duty to speak, and "active concealment," which has no such duty requirement; further indicating that "active concealment" contemplates "'[a]ny words or acts which create a false impression covering up the truth, . . . or which remove an opportunity that might otherwise have led to the discovery of a material fact . . ., or even a false denial of knowledge by one in possession of the facts'" (quoting William L. Prosser, Handbook of the Law of Torts § 106, at 695 (4th ed. 1971))).
Footnote: 35 35 We emphasize that an unwed biological father's right to establish and maintain a parental relationship with his child does not foreclose an unwed biological mother's right to terminate her pregnancy. See Doe v. Smith, 486 U.S. 1308, 108 S. Ct. 2136, 100 L. Ed. 2d 909 (1988) (refusing to permit unwed biological father to enjoin unwed biological mother from obtaining an abortion).
Footnote: 36 36 By the term "parent" we mean both biological parents and those persons who have attained the status of parents by virtue of adoption. See W. Va. Code § 48-4-11 (1984) (Repl. Vol. 1996).
Footnote: 37 37 In rendering this decision, we wish to comment as to its intended effect and scope. First, we emphatically reiterate that our holding is in no way intended to abrogate a biological mother's freedom to select from various options available to her during the course of her pregnancy. Indeed, our fervent hope is that by carefully and narrowly defining the boundaries for the imposition of liability in a case such as this, these freedoms will be more scrupulously preserved and protected. Second, we emphasize that we do not impose upon a biological mother any affirmative duty to keep her child's biological father informed of the progress of her pregnancy or to relay to him any other information pertaining to a proposed adoption of the child other than that notice required to be given to the child's biological father pursuant to the applicable statutory or case law. Only when the mother, or any other person, affirmatively, intentionally, and willfully conceals information in response to a father's inquiries can she, or any other person, be subjected to liability. Last, we acknowledge that the scope of this decision necessarily will be limited by the implementation of revised adoption standards which afford greater consideration of a biological father's interest in establishing a relationship with his child. See W. Va. Code §§ 48-4-8, 48-4-8b (1997) (Supp. 1997) (expanding class of persons required to be given notice of pending adoption proceedings). See also Cal. Family Code §§ 7662, 7664, 7666 (1992) (Main Vol. 1994) (requiring notice of pending adoption proceedings be given to "natural father") and 7660 (1992) (Main Vol. 1994) (requiring notice of pending adoption proceedings be given to "presumed father"); Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992) (holding unconstitutional statutory scheme whereby unwed biological mother could prevent unwed biological father from attaining status of presumed father, whose consent is required for adoption of nonmarital child).
Footnote: 38 38 Having determined the sufficiency of John's claim for fraud, we need not further review this matter. The issue of whether the record evidence adequately satisfied the elements of a cause of action for fraud was properly within the province of the jury. 8B Michie's Jur. Fraud and Deceit § 67, at 433 (1994) ("Generally, fraud is a question of fact to be determined by the jury from all the circumstances of the case." (footnote omitted)). Furthermore, the defendants do not appear to challenge the sufficiency of such evidence in their appeal. See Syl. pt. 3, Higginbotham v. City of Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974) ("Assignments of error that are not argued in the appellant's brief may be deemed by this Court to be waived."), overruled on other grounds by O'Neil v. City of Parkersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977).
Footnote: 39 39 See infra for the text of Restatement (Second) of Torts § 700 (1976).
Footnote: 40 40 The defendants alternatively suggest that John's claim is based not upon Section 700 but upon Section 699 of the Second Restatement of Torts. See Restatement (Second) of Torts § 699 (1976) ("One who, without more, alienates from its parent the affections of a child, whether a minor or of full age, is not liable to the child's parent."). As the claim enunciated in Section 699 is nothing more than a claim for alienation of a child's affections, for which no relief is available, and as this cause of action has been abolished in this State, the defendants contend that the circuit court erroneously permitted John to maintain his claim. Citing W. Va. Code § 56-3-2a (1969) (Repl. Vol. 1997); Syl. pt. 2, Weaver v. Union Carbide Corp., 180 W. Va. 556, 378 S.E.2d 105 (1989); Syl. pts. 1 and 4, Wallace v. Wallace, 155 W. Va. 569, 184 S.E.2d 327 (1971), overruled on other grounds by Belcher v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990).
Footnote: 41 41 See, e.g., DiRuggiero v. Rodgers, 743 F.2d 1009 (3d Cir. 1984) (construing law of New Jersey as allowing cause of action for tortious interference with parents' custodial rights); Bennett v. Bennett, 682 F.2d 1039, 221 U.S. App. Dec. 90 (D.C. Cir. 1982) (recognizing applicability of tort to relatives of minor child); Lloyd v.
Loeffler, 694 F.2d 489 (7th Cir. 1982) (surmising Wisconsin law would permit cause of action for tortious interference with custodial relationship); Anonymous v. Anonymous, 672 So. 2d 787 (Ala. 1995) (listing elements of tortious interference with custody cause of action); Matter of Mendel, 897 P.2d 68 (Alaska 1995) (impliedly allowing maintenance of claim for tortious custodial interference); Rosefield v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1963) (explaining rationale for adopting tort); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo. 1989) (en banc) (basing recognition of tort on pre-existing state crime of custodial interference); Mathews v. Murray, 101 Ga. App. 216, 113 S.E.2d 232 (1960) (permitting plaintiff to maintain claim for damages arising from defendant's interference with plaintiff's custody of his minor child); Shields v. Martin, 109 Idaho 132, 706 P.2d 21 (1985) (permitting recovery of damages for tortious interference with custodial relationship), superseded by statute as noted in Doe v. Cutter Biological, a Div. of Miles, Inc., 852 F. Supp. 909 (D. Idaho 1994); Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928) (permitting mother to maintain cause of action for damages resulting from defendant's tortious interference with her parental and custodial rights); Wood v. Wood, 338 N.W.2d 123 (Iowa 1983) (en banc) (determining tort would provide effective remedy and deterrent to problem of child snatching); Washburn v. Abram, 122 Ky. 53, 28 Ky. L. Rptr. 985, 90 S.W. 997 (1906) (allowing parent to recover damages occasioned by unlawful abduction or detention of his/her minor child); Spencer v. Terebelo, 373 So. 2d 200 (La. App. 1979) (recognizing cause of action in tort for interference with custodial relationship); Hare v. Dean, 90 Me. 308, 38 A. 227 (1897) (upholding cause of action for interference with parent's custody of his/her minor child); Michaels v. Nemethvargo, 82 Md. App. 294, 571 A.2d 850 (1990) (recognizing cause of action in tort for interference with parental relationship between parent and his/her minor child; limiting recovery to loss of child's services and expenses necessary to ensure child's welfare and precluding recovery of damages for society and companionship); Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 571 N.E.2d 340 (1991) (recognizing cause of action for tortious interference with parent-child relationship grounded in common law and Restatement (Second) of Torts § 700 (1976)); Brown v. Brown, 338 Mich. 492, 61 N.W.2d 656 (1953) (adopting language of Restatement of Torts § 700 (1938)); Kramer v. Leineweber, 642 S.W.2d 364 (Mo. App. 1982) (noting Missouri's long-standing recognition of tort action for parental or custodial interference); Tavlinsky v. Ringling Bros. Circus Co., 113 Neb. 632, 204 N.W. 388 (1925) (acknowledging that parents generally have cause of action for wrongful deprivation of custody of their minor child); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983) (extending liability for tort to those conspiring to commit tort); Casivant v. Greene County Community Action Agency, Inc.,
652 N.Y.S.2d 115, 234 A.D.2d 818 (1996) (finding tort to be narrowly drawn), aff'd, 90 N.Y.2d 969, 665 N.Y.S.2d 952, 688 N.E.2d 1034 (1997); LaGrenade v. Gordon, 46 N.C. App. 329, 264 S.E.2d 757 (1980) (finding mother had right to maintain claim for tortious interference with parental or custodial relationship where father had, by contract, surrendered to mother his common law right to custody of parties' minor child), appeal dismissed, review denied, 300 N.C. 557, 270 S.E.2d 109 (1980); Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593 (1877) (permitting lawful custodian of minor child to maintain claim for damages resulting from another's wrongful interference with such custodial relationship); McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978) (en banc) (following other jurisdictions recognizing tort); Bedard v. Notre Dame Hosp., 89 R.I. 195, 151 A.2d 690 (1959) (holding parent may bring cause of action for injury to his/her parental relationship with his/her child); Hershey v. Hershey, 467 N.W.2d 484 (S.D. 1991) (recognizing cause of action in tort for interference with parental relationship, but specifically phrasing claim as one for alienation of affections); Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986) (adopting cause of action by parent for tortious interference with custodial relationship and applying Restatement (Second) of Torts § 700 (1976)); Magnuson v. O'Dea, 75 Wash. 574, 135 P. 640 (1913) (allowing recovery of damages arising from tortious interference with custodial relationship). But see, e.g., McDougald v. Jenson, 596 F. Supp. 680 (N.D. Fla. 1984) (refusing to recognize, under Florida law, cause of action for tortious interference with parental or custodial relationship), aff'd, 786 F.2d 1465 (11th Cir. 1986); Simmons v. Simmons, 41 F. Supp. 545 (E.D.S.C. 1941) (interpreting South Carolina law as prohibiting cause of action by one spouse against the other spouse for interference with custodial relationship between complaining spouse and parties' child based upon sanctity and promotion of "domestic felicity" and child's best interests); Whitehorse v. Critchfield, 144 Ill. App. 3d 192, 98 Ill. Dec. 621, 494 N.E.2d 743 (1986) (declining to recognize cause of action for tortious interference with parent's custody and determining Legislature to be more appropriate body to implement civil sanctions for such interference); Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990) (explicitly rejecting father's tort claim for intentional interference with his custodial rights; finding proposed cause of action to be contrary to best interests of children at issue in such disputes resulting from dissolution of marriage proceedings); Zaharias v. Gammill, 844 P.2d 137 (Okla. 1992) (rejecting tort because increased litigation would be contrary to best interests of children involved). See generally Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993) (agreeing with trial court's ruling that recognition of cause of action for custodial interference would likely be consistent with Connecticut law but finding facts insufficient to maintain such a claim in this particular case); Bartanus v. Lis, 332 Pa.
Super. 48, 480 A.2d 1178 (1984) (not expressly adopting or rejecting tort of interference with custody by "harboring" minor child without his/her parent's consent; determining instead that facts alleged were insufficient to state such a claim because plaintiff had not demonstrated that he had lawful custody of his son at time of alleged interference); White v. Blackburn, 787 P.2d 1315 (Utah App. 1990) (neither specifically adopting nor definitively rejecting cause of action for tortious interference with parental or custodial relationship; determining facts did not establish claim for such interference in this case).
Footnote: 42 42 We phrase the relationship protected by this cause of action in the alternative to encompass both "parental relationships" and "custodial relationships". In this manner, we view a "parental relationship" as the relationship fostered, or commenced, by an unwed biological father as a prerequisite to asserting his broader parental and custodial rights. By "custodial relationship" we mean the relationship between parent and child enjoyed by a parent who has physical or legal custody of his/her child.
Footnote: 43 43 Our discussion of tortious interference will be limited to tortious interference with a parent's parental or custodial relationship with his/her child as distinguished from tortious interference with a parent's visitation rights or tortious interference which results in a parent's loss of his/her child's society and companionship, i.e., parental consortium. For further discussion of the two types of tortious interference not addressed by our decision, see Note, Tort Recovery for Intentional Interference with Visitation Rights: A Necessary Alternative, 32 U. Louisville J. Fam. L. 657 (1993-94) (discussing tortious interference with visitation), and Jean C. Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person's Society and Companionship, 51 Ind. L.J. 590 (1975-76) (discussing tortious interference with child's
society and companionship) and Note, Torts--Parent's Recovery for Loss of Society and Companionship of Child, 80 W. Va. L. Rev. 340 (1977-78) (same).
Footnote: 44 44 The language of the Restatement is clear, and we emphasize further, that the claim asserted by John and contemplated by this Court is one for tortious interference and not for alienation of affections, as the defendants suggest. These two causes may be distinguished as follows. "Tortious interference with parental or custodial relationship" intimates that the complaining parent has been deprived of his/her parental or custodial rights; in other words, but for the tortious interference, the complaining parent would be able to exercise some measure of control over his/her child's care, rearing, safety, well- being, etc. By contrast, "alienation of affections" connotes only that the parent is not able to enjoy the company of his/her child; this cause of action does not suggest that the offending party has removed parental or custodial authority from the complaining parent. We further recognize that "alienation of affections" is no longer a valid cause of action in this State. See W. Va. Code § 56-3-2a (1969) (Repl. Vol. 1997) ("Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this State . . . for alienation of affections, unless such civil action was instituted prior to the effective date of this section [March 6, 1969]."). See also Restatement (Second) Torts § 699 cmt. a (1976) ("For the mere alienation of a child's affections no action can be maintained by the parent.").
Footnote: 45 45 The Court noted that the child's father had not been served with process and therefore was not a party to the appeal. Rosefield v. Rosefield, 221 Cal. App. 2d 431, 432, 34 Cal. Rptr. 479, 480 (1963)
Footnote: 46 46 For further discussion of parental rights in this State see Section II.B.1., supra, and Section II.C.3., infra.
Footnote: 47 47 See supra note 36 for the definition of the term "parent" as used in this decision.
Footnote: 48 48 In Plaintiff's Instruction
Number 20, as amended, the circuit court indicated that the defendants could offer
defenses to John's claims of tortious interference:
The Court instructs the jury that in your consideration of whether or not an intentional act of interference was committed by the defendants, or any of them, you are instructed that an intentional act of interference is one which is a substantial factor in preventing a relationship from occurring. An act is done intentionally, if it is done deliberately, with the purpose of interfering with the rights of
a party.
If you find that plaintiffs [sic] have
established their [sic] claim for wrongful interference by a preponderance of the
evidence, the burden then shifts to the defendants to prove their defenses by a
preponderance of the evidence.
(Emphasis added).
Footnote: 49 49 We reserve ruling, for a more factually appropriate case, the issue of whether one parent may state a claim for tortious interference against the other parent
when one parent has achieved superior custodial rights through a judicial decree of custody.
Footnote: 50 50 As will be explained more fully in Section II.F., infra, we limit our recognition of this cause of action to permit only parents of minor children to pursue a claim for tortious interference with their parental relationship. This cause of action is not available to grandparents of minor children upon allegations of tortious interference with their grandparental relationship.
Footnote: 51 51 See, e.g., Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980) (applying Texas law; asserting tortious interference claim against paternal grandparents and paternal aunt, uncle, and nephew); Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y. 1978) (applying New York law; naming as defendants to tortious interference action paternal grandfather and paternal uncle); Lloyd v. Loeffler, 539 F. Supp. 998 (E.D. Wis. 1982) (applying Wisconsin law; maintaining tortious interference claim against maternal grandparents), aff'd, 694 F.2d 489 (7th Cir. 1982); Rosefield v. Rosefield, 34 Cal. Rptr. 479, 221 Cal. App. 2d 431 (1963) (charging paternal grandfather with tortious interference); Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928) (alleging tortious interference by paternal grandparents and paternal aunt and uncle); Brown v. Brown, 338 Mich. 492, 61 N.W.2d 656 (1953) (claiming tortious interference by paternal grandparents and paternal aunts and uncle); Hayes v. Reynolds, 579 S.W.2d 119 (Mo. App. 1979) (bringing cause of action
for tortious interference against maternal grandparents and maternal aunt); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983) (complaining of tortious interference by maternal grandparents); Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986) (seeking to recover damages for tortious interference from maternal grandfather).
Footnote: 52 52 As with the foregoing assignment of error, our review of this issue is necessarily limited to determining whether John adequately stated a claim for tortious interference with his parental relationship with Baby Boy Conaty upon which relief can be granted. Because the parties do not challenge on appeal the sufficiency of the evidence supporting this claim, our inquiry ends here. See supra note 38.
Footnote: 53 53 It is unclear whether the circuit court definitely intended John to provide Anne with notice of the injunction order by publication or whether the court anticipated notice by some other means. In this regard the court directed simply that: "[John] is ORDERED to effect service upon [Anne] of the Petition to Establish Paternity and For Injunctive Relief by publication and to provide notice to [Anne] of this Injunction."
Footnote: 54 54 While the defendants did not specifically use the word "object" in opposing the circuit court's decision to refuse this instruction, they did present an argument to the court in support of their position that the instruction should have been granted.
Footnote: 55 55 The record does not reflect an objection, either general or specific, by the defendants with respect to the circuit court's decision to refuse Defendants' Instruction Number 46. During the rendering of its decision in this regard, the court stated: "The Court is going it [sic] refuse 46. . . . The Court is going to refuse that instruction based upon the same arguments the defense made previously and for the reason that the Court has made previously." The record does not reflect any verbal response by the defendants to this ruling.
Footnote: 56 56 The special
interrogatories requested the jury to determine:
1. Do you believe by a preponderance of
the evidence that Anne Conaty personally knew when she placed Baby Boy Conaty with the
[Canadian adoptive parents] that the Circuit Court of Cabell County had entered an order
prohibiting her from placing the child for adoption?
Yes
X No
. . . .
2. Do you believe by a preponderance of
the evidence that David Leavitt personally knew when Anne Conaty placed Baby Boy Conaty
with the [Canadian adoptive parents] that the Circuit Court of Cabell County had entered
an order prohibiting her from placing the child for adoption?
Yes X No
Footnote: 57 57 In addition to finding no record evidence indicating that Anne challenged the validity of the injunctive order in the inverse paternity action by moving the circuit court to vacate or set aside its order, we similarly are unable to locate anything to demonstrate that Anne sought relief from this Court by way of prohibition or appeal. Although we reluctantly have determined the necessity of addressing the injunction's validity in this particular case, we recapitulate our prior admonitions suggesting to enjoined parties that they may petition this Court for a writ of prohibition in order to obtain relief from the enforcement of an injunctive order. See, e.g., Syl. pt. 3, in part, State ex rel. Glass Bottle Blowers Ass'n of United States & Canada v. Silver, 151 W. Va. 749, 155 S.E.2d 564 (1967) (holding, in prohibition proceeding seeking to prevent enforcement of preliminary injunction, "'[a]s a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition'" (quoting Syl. pt. 6, in part, State ex rel. Linger v. County Court, 150 W. Va. 207, 144 S.E.2d 689 (1965))).
Footnote: 58 58 We note that the preservation of the status quo was particularly proper in this case given the competing constitutional rights of Anne, to travel and to make decisions regarding her pregnancy, and John, to establish a parental relationship with his child, implicated therein.
Footnote: 59 59 For the reasons stated in Section II.C.2., infra, we reject John's contentions that the injunction was proper pursuant to the domestic relations jurisdiction of the circuit court contained in the UCCJA.
Footnote: 60 60 While we have concluded that the lack of notice to Anne prior to the entry of the injunctive order was not fatal to the order's validity in this case, we caution that this decision is narrowly limited to the precise facts of the case presently before us and based upon the law existing at the time that the injunctive order was issued in June, 1991. Such controversies arising from the granting of injunctive relief today, however, would be governed by the new West Virginia Rules of Civil Procedure, adopted February 19, 1998, and effective April 6, 1998.
Footnote: 61 61 Our rejection of the propriety of service by publication of an injunctive order should not be misconstrued as indicating any disapproval by this Court with the established procedure of permitting service of a complaint by publication. See W. Va. R. Civ. P. Rule 4(e) (describing procedure for constructive service of process, i.e., service
by publication). The reason for this distinction is apparent from the purpose of each of these service requirements. When one is attempting to serve an adverse party with a complaint, the notice is calculated to inform that party that a lawsuit has been filed against him/her and that he/she may respond or otherwise appear at some future date to challenge the action. By contrast, notice of an injunction is undoubtedly more crucial as the court, through its injunctive order, seeks to immediately prohibit the enjoined party from doing a specific act or from conducting him/herself in a particular manner, thereby requiring an almost instantaneous affirmative response from the enjoined party. Furthermore, upon receiving actual notice of an injunctive order, an enjoined party may be charged with contempt of court for any violation of the injunction's prohibitory terms. As this comparison indicates, the duties thrust upon an adverse party to an injunction order are simply more burdensome, and immediately so, than those required of a party adverse to a filed complaint.
Footnote: 62 62 At this juncture we note that the decision rendered upon this particular issue is limited to the facts of the instant appeal. As we explained in note 60, supra, the new West Virginia Rules of Civil Procedure would be applicable to a case arising today under the same or similar circumstances. With respect to this particular ruling, it appears that the new Rules provide more guidance as to the import and necessity of service of the injunctive order upon the enjoined party. Compare W. Va. R. Civ. P. Rule 65 (Main Vol. 1998) ("The practice respecting preliminary injunctions shall be in accordance with the practice heretofore followed in this State, including the use of a verified complaint or supporting affidavit.") with W. Va. R. Civ. P. Rule 65(b) (Supp. May 1998) ("Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order[.]") and W. Va. R. Civ. P. Rule 65(d) (Supp. May 1998) ("Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.").
Footnote: 63 63 We limit our discussion of the evidence to John's cause of action alleging fraud as we have determined that Anne cannot be held liable to John for tortious interference in the present case. See supra Section II.B.2.
Footnote: 64 64 While we determine, in
resolving this issue, that the jury could have based its findings of liability for fraud
upon voluminous evidence independent of the injunctive order, we wish to indicate that the
jury's consideration of the injunction does not require a reversal of its verdict as it
could properly have considered such evidence as indicative of John's efforts to establish
a parent-child relationship with his child. In fact, in reaching its decision to
specifically inquire of the jury as to the knowledge of defendants Anne and Leavitt of the
injunction prior to Baby Boy Conaty's adoptive placement, the circuit court explained, as
follows:
As I look at the case, I propose to offer to the jury an interrogatory, and I would like to give it to you and tell you why. I think some of the uniqueness of this case revolve [sic] around the efforts of Dr. Kessel in advance of the placement. Quite frankly, had Dr. Kessel not sought the jurisdiction of the Circuit Court of Cabell County prior to the placement, I don't think we would be here. Mr. Leavitt indicated to the jury, without objection of any party, that this was the first case of this nature that had ever gone to trial and that every other judge in the country had thrown these cases out. And what I find different about this case is this is a case where you have
a proactive plaintiff who sought relief prior to the birth.
For the text of the above-referenced interrogatories, see supra note 56.
Furthermore, in responding to these interrogatories, it appears that the jury may have considered whether Anne and Leavitt did, in fact, have knowledge of the injunctive order despite John's inability to personally serve this order upon Anne. We decline to address the effect of these interrogatories upon the jury's finding that Leavitt committed fraudulent and tortious acts as his appeal is not presently before us. See supra Section II.A. Nevertheless, for the same reasons relied upon in finding that the record was replete with evidence exclusive of the injunctive order upon which the jury could have based its liability determinations for fraud, we find that the jury's responses to the special interrogatories do not necessitate the reversal of the jury's verdict in this case.
Footnote: 65 65 The Interstate Compact on the Placement of Children [hereinafter ICPC], codified at W. Va. Code §§ 49-2A-1 to -2 (1975) (Repl. Vol. 1996), provides a procedure to be followed in the interstate adoption of children. Generally, the ICPC requires a "sending agency," which may be a state, agency, or individual, to complete pre-adoptive placement forms which are submitted to the compact administrators in both the "sending state" and the "receiving state". The intent of this procedure is to ensure that children placed for adoption in a jurisdiction other than their home state will receive the benefit of child welfare laws in the adopting state and that they will be placed into suitable adoptive environments. See W. Va. Code § 49-2A-1, art. I (reciting purposes of ICPC).
Footnote: 66 66 The ICPC defines a "sending agency" as "a party state, officer or employee
thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state." W. Va. Code § 49-2A-1, art. II(b).
Footnote: 67 67 However, the court did recognize that Leavitt had filed certain ICPC documents with the California authorities in June, 1991, with respect to the first attempted placement of Baby Boy Conaty involving the Oregon family.
Footnote: 68 68 This opinion addressed the
question of whether "a birthmother who comes to State A from another state in order
to give birth and then places her child with a State A couple [can] thereby avoid
application of [the] Interstate Compact on the Placement of Children":
Where the expectant mother crosses a state line as part of the placement plan and arrangement, the transaction should be viewed as an interstate placement. In enacting the Compact, the intent of the state legislatures was not to make the protections of placements depend on mechanical manipulation of the delivery point. Such logistic calculations are nothing more than subterfuges and studied efforts to avoid the inte[n]ded and normal consequences of the law. Article X of the ICPC directs that the Compact be "liberally construed
to effectuate its purposes." As set forth in Article I and evidenced in the entire
pattern of the procedures and requirements specified throughout the Compact, the emphasis
is on the interstate character of the arrangements. If the arrangement process is
interstate, placement is interstate. The definition of "placement" in Article II
also supports this interpretation.
Reprinted in American Public Welfare Association, I Compact Administrator's Manual 3.105-3.107 (n.d.).
Footnote: 69 69 The Office of the Secretariat is the governing body which oversees the administration of the ICPC in the various member states throughout the United States and renders advisory opinions as to the application and effect of the Compact's provisions.
Footnote: 70 70 The California version of the ICPC in effect at the time of the 1991 adoption of Baby Boy Conaty is contained in Cal. Family Code §§ 264 to 274 (1974) (Family Code Appendix to Main Vol. 1994) [current Cal. Family Code §§ 7900 to 7910 (1992) (Main Vol. 1994)]. West Virginia's ICPC, which is virtually identical to that of California, is located in W. Va. Code §§ 49-2A-1 to -2 (1975) (Repl. Vol. 1996).
Footnote: 71 71 See supra note 66 for the definition of "sending agency". The ICPC interprets the term "receiving state" as "the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons." W. Va. Code § 49-2A-1, art. II(c).
Footnote: 72 72 While Canada is not precisely a "state," as we commonly employ this term, such an elementary distinction does not conclusively exclude Canada from becoming a "party state," as contemplated by the ICPC, as the language of the Compact indicates that the drafters specifically intended to permit other jurisdictions, including foreign nations, to adopt and utilize the compact provisions if they so desired. See W. Va. Code § 49-2A- 1, art. IX ("This compact shall be open to joinder by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of Congress, the government of Canada or any province thereof." (emphasis added)).
Footnote: 73 73 We wish to note that,
although we have examined the applicability of the West Virginia ICPC to the Canadian
adoption proceedings, we are quite certain that a similar finding of inapplicability would
result from a detailed examination of California's ICPC provisions.
In deeming the ICPC to be inapplicable, we also deem it necessary to address the authorities relied upon by the parties and the circuit court in support of their positions on this issue. The defendants rely primarily upon the case of Yopp v. Batt, 237 Neb. 779,
467 N.W.2d 868 (1991), whereas the circuit court and John base their stance upon the June 30, 1986, Secretariat Opinion 49. We find both of these authorities distinguishable from the circumstances of the case sub judice in that they both contemplated adoptive placements involving two jurisdictions, each of which had adopted the ICPC. See, e.g., Iowa Code Ann. §§ 232.158 to 232.166 (West 1985) (West Main Vol. 1994); Neb. Rev. Stat. § 43-1101 (1974) (Reissue Vol. 1993). By contrast, the instant appeal involves a situation wherein one jurisdiction, either West Virginia or California, had enacted the ICPC, but the other jurisdiction participating in the adoptive placement, Alberta, Canada, had not. As such, the holdings of these authorities are not instructive to our resolution of the matter at hand.
Footnote: 74 74 The Uniform Child Custody Jurisdiction Act [hereinafter UCCJA], contained in W. Va. Code §§ 48-10-1 to -26 (1981) (Repl. Vol. 1996), has as its primary purpose the efficient resolution of child custody disputes where the involved parties reside in more than one jurisdiction. In this manner, the UCCJA facilitates the decision of child custody matters by the state having the most recent and prolonged contacts with the child; the most complete knowledge of his/her "future care, protection, training and personal relationships"; or the best opportunity to safeguard his/her health or well-being. See W. Va. Code § 48-10-3. See also W. Va. Code § 48-10-1 (describing purposes of UCCJA).
Footnote: 75 75 The California version of the UCCJA effective in 1991 is codified in Cal. Family Code §§ 5150 to 5174 (Family Code Appendix to Main Vol. 1994) [current Cal. Family Code §§ 3400 to 3425 (1992) (Main Vol. 1994)]. The West Virginia UCCJA, which contains substantially the same statutory language as the California legislation, is located at W. Va. Code §§ 48-10-1 to -26.
Footnote: 76 76 For purposes of the UCCJA,
"[h]ome state" means the
state in which the child immediately preceding the time involved lived with his parents, a
parent or a person acting as parent for at least six consecutive months and, in the case
of a child less than six months old, the state in which the child lived from birth with
any of the persons named. Periods of temporary absence of any of the named persons are
counted as part of the six-month or other period[.]
W. Va. Code § 48-10-2(5) (1981) (Repl. Vol. 1996).
Footnote: 77 77 It is unclear from John's brief whether he suggests that California or Canada should have declined to permit litigation concerning the custody of Baby Boy Conaty.
Footnote: 78 78 W. Va. Code § 48A-6-1 has been amended since the time of the events underlying the instant appeal. However, the above quoted portion of 48A-6-1(a) has not been changed.
Footnote: 79 79 W. Va. Code § 48A-6-4 has been amended several times, most recently in 1995. However, the language quoted above remains substantially the same.
Footnote: 80 80 Although we have examined and resolved this issue pursuant to the West Virginia UCCJA, we opine that a similar result would be achieved through an application of the California UCCJA to the facts and circumstances of this case.
Footnote: 81 81 We note further that,
although we can locate no indication that the nation of Canada or its province of Alberta
has adopted the UCCJA, the fact that another nation is involved in a custody dispute does
not automatically preclude the UCCJA from governing such proceedings. From W. Va.
Code § 48-10-24 (1981) (Repl. Vol. 1996) it is apparent that the Act's drafters
contemplated the international application of these procedures:
The general policies of this article
extend to the international area. The provisions of this article relating to the
recognition and enforcement of custody decrees of other states apply to custody decrees
and decrees involving legal institutions similar in nature to custody institutions
rendered by appropriate authorities of other nations if reasonable notice and opportunity
to be heard were given to all affected persons.
Nevertheless, as we have already determined that John's inverse paternity action did not constitute a "custody determination," a "custody proceeding," or a "custody decree" within the meaning of the UCCJA, the international scope of the Act does not alter our
conclusion that the Act's provisions did not apply to the proceedings underlying this appeal.
Footnote: 82 82 The instruction at issue,
Plaintiff's Instruction Number 75, which was granted over the defendants' objections,
reads as follows:
The Court instructs the jury that under
the law of the United States a parent has a natural right to the custody of his or her
infant child and that he or she cannot be deprived of that right unless upon cogent and
convincing proof of misconduct, negligent [sic], immorality, abandonment or other
dereliction of duty reflecting unfitness as a parent. The right of a parent to have the
custody of his or her child is founded on natural law and, while not absolute, such right
will not be taken away unless the parent has committed an act or is guilty of an omission
which proves his or her unfitness.
Furthermore, the fact that a child was born out of wedlock is of no consequence. A father of an illegitimate child must receive the same treatment and consideration as that received by any parent with respect to the termination of his
parental rights.
Footnote: 83 83 Article III, Section 10, of the West Virginia Constitution provides "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers."
Footnote: 84 84 See, e.g., Syl. pt. 1, Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989) ("'A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.' Syl. Pt., Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960)." (emphasis added)); Syl. pt. 2, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (same); Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) ("In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." (emphasis added)); Syl. pt. 3, in part, State ex rel. Harmon v. Utterback, 144 W. Va. 419, 108 S.E.2d 521 (1959), overruled on other grounds by Syl. pt. 3, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996) ("The right of a parent to the custody of his or her child, being founded in nature and wisdom and recognized and declared by statute, will be respected unless such right is transferred, relinquished or abandoned[.]" (emphasis added)); Syl. pt. 3, in part, State ex
rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948) (same); Pierce v. Jeffries, 103 W. Va. 410, 414, 137 S.E. 651, 652 (1927) ("In the absence of evidence of abandonment or transfer of his rights, a natural parent who is of good character and a proper person to have the custody of the child and reasonably able to provide for it is entitled to the custody as against other persons[.]" (emphasis added) (internal quotations and citation omitted)); Syl. pt. 4, State ex rel. Neider v. Reuff, 29 W. Va. 751, 2 S.E. 801 (1887) ("The right of the father or mother to the custody of their minor child, is not an absolute right, to be accorded to them under all circumstances, for it may be denied to either of them, if it appears to the court, that the parent otherwise entitled to this right, 'is unfit for the trust.'" (emphasis added)).
Footnote: 85 85 Our prior decisions defining an unwed biological father's rights include, Syllabus point 2 of State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996) ("Although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause in Section 10 of Article III of the West Virginia Constitution."); Syllabus point 1 of McGuire v. Farley, 179 W. Va. 480, 370 S.E.2d 136 (1988) ("'A circuit court has jurisdiction to award or deny visitation rights to a father of an illegitimate child.' Syllabus, J.M.S. v. H.A., 161 W. Va. 433, 242 S.E.2d 696 (1978)."); and Syllabus point 1 of Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 ("The father of an illegitimate child must receive the same treatment and consideration as that received by any parent with respect to the termination of his parental rights."). See generally David E. Thompson, Comment, McGuire v. Farley: The West Virginia Supreme Court of Appeals Takes a Step Toward Equal Protection for the Unwed Father, 91 W. Va. L. Rev. 617 (1989).
Footnote: 86 86 This jury instruction also made clear that "[t]he right of a parent to have the custody of his or her child is . . . not absolute." Although we recognize the importance of a parent's right to the custody of his/her child, we cannot emphasize enough the contingent nature of this right. Throughout our evaluation of this case, we constantly have been reminded of Anne's undeniable right to make decisions regarding her pregnancy and John's qualified right, as an unwed biological father, to the custody of his child. However, we must not forget that, regardless of the parents' custodial rights, the child's best interests are also entitled to due consideration. See, e.g., Syl. pt. 7, Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995) ("Cases involving children must be decided not just in the context of competing sets of adults' rights, but also with a regard for the rights of the child(ren)."); Syl. pt. 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) ("[T]he welfare of the infant is the polar star by which the discretion of the court is to be guided in making its award of legal custody."); Pierce v. Jeffries, 103 W. Va. at 413-14, 137 S.E. at 652 ("It is well settled in this state that the welfare of the
child is of paramount importance in determining who is entitled to its custody, and that the welfare of the child is to be regarded more than the technical rights of the parent."); State ex rel. Neider v. Reuff, 29 W. Va. at 757, 2 S.E. at 803 ("[T]his right to the custody of children, given by nature and by God to parents, must give way to the permanent interest of the child[.]" (citation omitted)). While the fate of Baby Boy Conaty has long ago been sealed by the Canadian judiciary, we cannot ignore that in future cases where parents assert their rights to custody, the child's interests, too, must be regarded.
Footnote: 87 87 Upon a review of the challenged instructions, see infra notes 88 and 89, it appears that although these instructions concern John's federal due process and equal protection rights, similar rights secured by the West Virginia Constitution might also be implicated. However, given the limited language of these instructions, we decline to review them with respect to analogous due process and equal protection rights guaranteed by the Constitution of the State of West Virginia as neither party has framed the issue in terms of state constitutional protections.
Footnote: 88 88 The circuit court
instructed the jury as to John's right to due process of law in Plaintiff's Instruction
Number 64(a), which was granted as amended:
The Court further instructs the jury
that the interest of a parent in having a relationship with his child is a liberty
interest protected by the Fourteenth Amendment's Due Process Clause. The Fourteenth
Amendment provides that no state shall deprive any person of life, liberty or property
without due process of law.
The Court further instructs the jury
that where an unwed father demonstrates a full commitment to the responsibilities of
parenthood by coming forward to participate in the rearing of his child, his interest in
personal contact with this child requires substantial protection under the Due Process
Clause, including a right to notice of any adoption of that child and an opportunity to be
heard prior to the termination of his parental rights to that child.
Accordingly, if you find that John Kessel demonstrated a full commitment to the responsibilities of parenthood by coming forward to attempt to participate in the rearing of his child, you may find that John Kessel had a right to notice of any adoption of that child and a right to an opportunity to a
hearing prior to the termination of his parental rights to his son.
If you find by a preponderance of the
evidence that a defendant, or defendants, set about with the intention to deprive
plaintiffs [sic] of their [sic] rights to the child by depriving John Kessel of notice and
right to be heard concerning the adoption of his child, then you may consider such conduct
in determining the motive, intent and state of mind of the defendants in determining
whether defendants are liable for fraud or interference.
At this juncture, we decline to address the propriety of that portion of the trial court's instruction suggesting that John had a right to be notified of the adoption of Baby Boy Conaty because the parties do not contend that this particular statement constituted an erroneous instruction. Rather, our discussion of the above-quoted instruction will be limited to the appropriateness of instructing the jury as to John's constitutional rights and as to the possibility that the defendants violated these rights. For a discussion of the existence of a duty to notify John of the pending adoption, see supra Section II.B.1.
Footnote: 89 89 With respect to John's
right to equal protection of the law, the circuit court granted, as amended, Plaintiff's
Instruction Number 65(a):
The Court instructs the jury that
according to the Fourteenth Amendment, equal protection and security should be given to
all persons under like circumstances in the enjoyment of their personal and civil rights,
and all persons should be equally entitled to pursue their happiness and acquire and enjoy
property. Under this principle, no person should be denied the same protection of the law
which is enjoyed by other persons in like circumstances. There is to be equality of
opportunity afforded to all persons.
Therefore, if you find by a preponderance of the evidence that defendants, or any of them, set about with the intent and purpose of terminating plaintiffs' [sic] right to the
child by not permitting them [sic] an opportunity to be heard or have any rights whatsoever, then you may consider any such finding as evidence of intent, motive and state of mind in determining whether defendants, or any of them, are liable for fraud or interference.
Footnote: 90 90 John originally attempted to prosecute a civil rights claim against the defendants pursuant to 42 U.S.C. § 1983 (1979) (1994 ed.). By dismissing this claim, the trial court impliedly determined that the defendants were not state actors and that their conduct did not rise to the level of state action.
Footnote: 91 91 The Fourteenth Amendment to the United States Constitution, referenced by the trial court in its due process and equal protection instructions, provides, in pertinent part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
Footnote: 92 92 The defendants complain of
the following Plaintiff's Instructions, pertaining to contempt, which the circuit court
granted over the defendants' objections. Plaintiff's Instruction Number 36 provided:
"Contempt is defined as an act in disrespect of the court or its processes, or which
obstructs the administration of justice or tends to bring the Court into disrepute. It is
a disobedience to the court, or an opposing or despising the authority, justice or dignity
thereof." Similarly, the court instructed in Plaintiff's Instruction Number 38, as
amended:
When a Court has jurisdiction in the
sense of power to decide whether an injunction or other writ shall be awarded, the party
against whom it issues is bound to obey it, although the awarding of it may have been
erroneous, and, in that sense, improper or improvident, and it may operate unreasonably
and unjustly; he must obey it until vacated or dissolved. Even though an injunction may
have been erroneously granted, unless it is absolutely void, it is the duty of the parties
enjoined to obey it scrupulously, and they will be held to a strict observance of it.
Lastly, Plaintiff's Instruction Number 40, as amended, directed:
An attorney who conspires with his client to obstruct the due administration of the law and to bring the authority of a court of justice into contempt by resisting and obstructing the execution of its lawful decrees, by whatever contrivance, is as guilty of an offense against public justice and of a contempt of court as his client.
Footnote: 93 93 The circuit court, over the defendants' objections, instructed the jury, in Plaintiff's Instruction Number 26, as amended, as to certain ethical standards that attorneys
must follow. (Quoting portions of the West Virginia Rules of Professional Conduct:
"Rule 1.2. Scope of Representation"; "Rule 1.4. Communication";
"Rule 1.6. Confidentiality of Information"; "Rule 3.3. Candor Toward the
Tribunal"; "Rule 3.4. Fairness to Opposing Party and Counsel"; "Rule
4.1. Truthfulness in Statements to Others"; "Rule 4.4. Respect for Rights of
Third Persons"; and "Rule 8.4. Misconduct"). Likewise, Plaintiff's
Instruction Number 27, as amended, recited excerpts from the Rules of Professional Conduct
of the State Bar of California ("Rule 1-100. [Rules of Professional Conduct, in
General]"; "Rule 3-200. Prohibited objective[s] of Employment"; "Rule
3- 210. Advising the Violation of Law"; "Rule 3-500. Communication";
"Rule 5-200. Trial Conduct"; "Rule 3-300. Avoiding Adverse Interests
[sic]"; "Rule 3-310. Avoiding the Representation of Adverse Interests";
"Rule 5-310. Prohibited Contact With Witnesses"; "Rule 5-220. Suppression
of Evidence"; and "Rule 5-210. Member as Witness") and quoted portions of
the State Bar Act chapter of the California Business and Professions Code ("Section
6067. Oath" and "Section 6068. Duties of Attorney"). The circuit court
further instructed the jury, over the defendants' objections, regarding the extent to
which the jury could consider any alleged ethical violations by the defendants:
The Court instructs the jury that you
will be instructed of statutes and laws and ethical rules which may apply to defendants in
this case. If you find by a preponderance of the evidence that defendants, or any
defendant, violated any of these laws or rules, then you may consider such violation as
evidence of their state of mind, intent or malice in your determination of whether the
defendant, or defendants, are liable to plaintiffs [sic] for fraud, [sic] interference
with rights to child.
In your deliberations, however, with
respect to whether defendants are liable for fraud, plaintiffs [sic] must prove the
element [sic] of fraud by clear and convincing evidence.
Plaintiff's Instruction No. 26(a) (as amended). In addition to the lower court's instructions regarding the ethical standards to which an attorney must conform his/her conduct, the defendants also challenge the circuit court's ruling granting Plaintiff's Instruction Number 40(a), as amended, over the defendants' objections, regarding an attorney's liability for intentional torts:
The Court instructs the jury that an
attorney has no immunity from liability for fraudulent or intentional acts that the
attorney takes on his own behalf or shares with his client. An attorney does not possess
any immunity from liability for his own intentional misconduct.
Therefore, if you find by a preponderance of the evidence in this case that defendant Leavitt or defendant Brian Conaty were acting as an attorney in any of the conduct complained of by plaintiffs [sic], if you further find, pursuant to the other instructions of the Court and the evidence in this case that they knowingly became an instrumentality for the perpetration of a fraud, conspired with others, including their clients, to defraud or injure plaintiffs [sic] or engaged in intentional conduct such as intentional interference with the plaintiffs' [sic] rights to the child, then you may find attorney Leavitt and attorney Brian Conaty to be liable the same as you would any other person.
Footnote: 94 94 The record indicates further that, during the inverse paternity case, plaintiff John sought a ruling from the circuit court compelling defendant Brian to respond to deposition questioning. Brian asserted the attorney-client privilege in response to questioning about the whereabouts of Anne and Baby Boy Conaty despite the fact that he earlier had represented to the court that he had not served as Anne's attorney in this matter. Although the circuit court did not hold Brian in contempt for his initial assertion
of the attorney-client privilege where no such privilege existed, the court did order him to submit to a second deposition and to refrain from asserting this privilege under these circumstances.
Footnote: 95 95 The circumstances surrounding the ruling of the California court in "California case 1" are distinguishable from those underlying the instant appeal. John instituted "California case 1" as a companion case to his West Virginia inverse paternity proceeding, "West Virginia case 1," in order to secure deposition testimony from attorney Leavitt and Anne's California doctors concerning the birth and subsequent whereabouts of Baby Boy Conaty, with the ultimate purposes of this action being the location of his son and the assertion of his parental rights. By contrast, the instant appeal is the direct result of proceedings had in "West Virginia case 2," which John filed in an attempt to collect money damages arising from the defendants' allegedly fraudulent and tortious conduct in preventing him from establishing a relationship with his son. Nevertheless, we decline to further address this particular argument as we find that the defendants' attempted assignment of error on this basis has been inadequately briefed. In furtherance of their claim that the West Virginia circuit court should have adopted the ruling of the California superior court, the defendants offer no authority other than bald assertions that "since the attorney-client relationship was formed in California, California law governed the issue of whether the privilege was waived. . . . The ruling by the California Superior Court should have been given deference, since California law was controlling and the same attorney-client relationship is involved in both cases." This lack of supporting authority directly contravenes our rules which specifically require a party to provide the legal basis upon which his/her argument rests. See W. Va. R. App. P. Rule 10(d) (stating "[t]he appellant's brief shall follow the same form as the petition for appeal") and Rule 3(c)(4) (describing contents of petition for appeal and requiring the inclusion of "[p]oints and authorities relied upon [and] a discussion of law").
Footnote: 96 96 John further proposes that the defendants could more efficiently have argued the applicability of the crime or fraud exception by petitioning this Court for a writ of prohibition prior to disclosing the allegedly privileged material. We agree with John. Indeed, we have suggested this course to parties embroiled in disputes regarding material sought to be protected from disclosure under the attorney-client privilege. See, e.g., Syl. pt. 2, State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 (1997) ("'When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) [privileged matter] and (3) [materials "prepared in anticipation of litigation or for trial"] of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.' Syl. pt. 3, State ex rel. U[nited] S[tates] F[idelity] & G[uar. Co.] v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995)."); Syl. pt. 2, State ex rel. Doe v. Troisi, 194 W. Va. 28, 459 S.E.2d 139 (1995) ("In situations where the refusal of a motion to quash a subpoena based on the attorney-client privilege could result in imminent and irreparable harm, petitioning for a writ of prohibition is the appropriate method for challenging the subpoena."). See also Syl. pt. 3, State ex rel. McCormick v. Zakaib, 189 W. Va. 258, 430 S.E.2d 316 (1993) ("'A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.' Syllabus
Point 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992)."). See generally State ex rel. United States Fidelity & Guar. Co. v. Canady, 194 W. Va. at 437 n.8, 460 S.E.2d at 683 n.8 ("If [a party] wrongfully [is] compelled to produce records protected by either the attorney-client privilege and/or the work product doctrine, the damage will occur upon disclosure, and a later appeal would be uneventful. In the area of communication privileges, 'once the cat is out of the bag, it cannot be put back in.'").
Footnote: 97 97 For further discussion of the fraud attending the attorney-client relationship between defendants Leavitt and Anne see Kessel v. Leavitt, ___ Cal. App. 4th ___, 75 Cal. Rptr. 2d 639 (1998).
Footnote: 98 98 The West Virginia Rules of Civil Procedure provide, in Rule 59(e), that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment."
Footnote: 99 99 See supra Section II.B.2 for an explanation of John's ability to recover from the defendants under only one of his two alternative theories of liability.
Footnote: 100 100 See supra note 98 for the text of W. Va. R. Civ. P. Rule 59(e).
Footnote: 101 101 Syllabus point 2 of Garnes
v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991), mandates:
Under our system for an award and
review of punitive damages awards, there must be: (1) a reasonable constraint on jury
discretion; (2) a meaningful and adequate review by the trial court using
well-established principles; and (3) a meaningful and adequate appellate review, which
may occur when an application is made for an appeal.
(Emphasis added).
Footnote: 102 102 Syllabus point 4 of Garnes
v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897, requires:
When the trial court reviews an award
of punitive damages, the court should, at a minimum, consider the factors given to the
jury as well as the following additional factors:
(1) The costs of the litigation;
(2) Any criminal sanctions imposed on
the defendant for his conduct;
(3) Any other civil actions against the
same defendant, based on the same conduct; and
(4) The appropriateness of punitive
damages to encourage fair and reasonable settlements when a clear wrong has been
committed. A factor that may justify punitive damages is the cost of litigation to the
plaintiff.
Because not all relevant information is available to the jury,
it is likely that in some cases the jury will make an award that is reasonable on the
facts as the jury know them, but that will require downward adjustment by the trial court
through remittitur because of factors that would be prejudicial to the defendant if
admitted at trial, such as criminal sanctions imposed or similar lawsuits pending
elsewhere against the defendant. However, at the option of the defendant, or in the sound
discretion of the trial court, any of the above factors may also be presented to the jury.
Additionally, Syllabus point 3 of Garnes directs:
When the trial court instructs the jury
on punitive damages, the court should, at a minimum, carefully explain the factors to be
considered in awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a
reasonable relationship to the harm that is likely to occur from the defendant's conduct
as well as to the harm that actually has occurred. If the defendant's actions caused or
would likely cause in a similar situation only slight harm, the damages should be
relatively small. If the harm is grievous, the damages should be greater.
(2) The jury may consider (although the
court need not specifically instruct on each element if doing so would be unfairly
prejudicial to the defendant), the reprehensibility of the defendant's conduct. The jury
should take into account how long the defendant continued in his actions, whether he was
aware his actions were causing or were likely to cause harm, whether he attempted to
conceal or cover up his actions or the harm caused by them, whether/how often the
defendant engaged in similar conduct in the past, and whether the defendant made
reasonable efforts to make amends by offering a fair and prompt settlement for the actual
harm caused once his liability became clear to him.
(3) If the defendant profited from his
wrongful conduct, the punitive damages should remove the profit and should be in excess of
the profit, so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental
fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Id.
Footnote: 103 103 In ruling upon the parties' punitive damages instructions, the circuit court eliminated from the jury's consideration that portion of John's instruction relating to the defendants' financial status: "[t]he financial position of the defendant[s] is relevant inasmuch as the wealthier the defendant[s] [are,] the greater the amount of punitive damages should be in order to achieve the desired effect of punishing the defendant[s] and discouraging the defendant[s] from engaging in the same or similar acts in the future[.]" Plaintiff's Instruction No. 71 (as offered). The court determined that there was no evidence in the case of the "financial position of each of the defendants." Although the court noted generally that the defendants objected to this instruction and although the defendants objected specifically to various portions of this instruction, it is not apparent from the record that the defendants objected specifically to the above-excised portion of this instruction pertaining to the relevance of the defendants' wealth.
Footnote: 104 104 See supra note 102 for the text of Syllabus points 3 and 4 of Garnes, 186 W. Va. 656, 413 S.E.2d 897.
Footnote: 105 105 We surmise that the
defendants intend to rely upon the laws applicable to adoption proceedings in California
in 1991, but we are unable to state with certainty that this is, in fact, the law upon
which the defendants base the legality of their conduct as their appellate brief does not
clearly phrase this argument or provide supportive authority:
As applied to the present case, Defendants complied with the law of California at the time Defendant Anne's baby was placed for adoption. Thus, even if this Court were to hold that a mother does not have the right to preclude an unwed father from developing a relationship with his child, such a holding could not be used to punish Defendants because Defendants acted in accordance with existing California law.
Footnote: 106 106 Having resolved this issue on other grounds, we decline to address John's complaint that he was effectively precluded from introducing evidence at trial of the defendants' financial position because they allegedly refused to comply with his pre-trial financial discovery requests.
Footnote: 107 107 We emphasize, though,
that Dr. Kessel is essentially powerless to seek actual visitation under W. Va. Code
§ 48-2B-6 (1992) (Repl. Vol. 1996) following the finalization of the Canadian adoption
and the attendant termination of John's parental rights.
Footnote: 108 108 Indeed, our research indicates that at least one court has actually denied the claim of grandparents alleging interference with their relationship with their grandchildren. See Cage v. Wood, 484 So. 2d 850 (La. Ct. App. 1986) (rejecting grandparents' claim for interference with grandparental relationship). See also Renaud v. St. Lawrence County, 233 A.D.2d 710, ___ & n.3, 650 N.Y.S.2d 367, 368 & n.3 (1996) (noting that lower court dismissed grandparents' claims of custodial interference but declining to address issue on appeal because grandparents "elected not to proceed with their appeal"). Cf. Ellis v. Hamilton, 669 F.2d 510 (7th Cir. 1982) (denying adoptive grandmother relief on federal due process claim because state remedies had not been adequately exhausted); Mecke v. Grubbs, 278 S.W.2d 404 (Tex. Civ. App. 1954) (denying grandparents relief upon claim of interference with custody of grandchild by child's father where grandparents had custody of grandchild by agreement of father but record did not indicate that father was unfit to have custody). But cf. Clark v. Bayer, 32 Ohio St. 299 (1877) (permitting grandfather to recover for custodial interference with his grandchildren where grandfather previously had been granted sole custody of grandchildren).
Footnote: 109 109 See Sections II.B.1. and II.C.3., supra, for a discussion of recognized parental rights.
Footnote: 110 110 Though substantially broadening the rights of grandparents to visit with their minor grandchildren, the 1998 Legislative amendments to the grandparent visitation statutes, codified in W. Va. Code §§ 48-2B-1 to 48-2B-12 (1998) (Supp. 1998), do not apply to the resolution of the instant appeal as these new laws were not in effect at the time of the underlying events.
Footnote: 111 111 Assisting with our appreciation of these difficulties attending adoption are the numerous briefs filed by Amici Curiae during the presentation of this appeal describing these participants' varied interests in this matter. We wish to thank these organizations for their concerns and contributions toward the resolution of this case.
Footnote: 112 112 See supra note 37, discussing recent legislative amendments to adoption laws in West Virginia and California.
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