September 1994 Term
PAMELA KATHERINE HENRY,
DIANA L. JOHNSON,
FAMILY LAW MASTER OF MASON COUNTY,
AND HOWARD LEE HENRY,
Appeal From the Circuit Court of Mason County
Honorable O. C. Spaulding, Judge
Civil Action No. 93-CD-10
REVERSED AND REMANDED
Submitted: September 20, 1994
Filed: October 28, 1994
Norman Googel, Esq.
West Virginia Legal Services Plan, Inc.
Huntington, West Virginia
Counsel for Appellant
Elizabeth A. Pyles, Esq.
Pyles & Auvil
Parkersburg, West Virginia
Counsel for Appellee Howard Lee Henry
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. Children are often physically assaulted or witness
violence against one of their parents and may suffer deep and
lasting emotional harm from victimization and from exposure to
family violence; consequently, a family law master should take
domestic violence into account when making an award of temporary
2. In light of the gravity of the subject matter and
the acknowledged long-term effects of a temporary child custody
order, a family law master should assure an adequate record for
appellate review before entering an order changing temporary
Pamela Katherine Henry petitions this court for appeal
from an order entered by Mason County Circuit Judge O. C. Spaulding
on 8 September 1993, refusing to issue a rule to show cause why a
temporary order by Family Law Master Diana L. Johnson awarding
custody of her epileptic daughter Amanda to Mrs. Henry's husband,
Howard Henry should not be prohibited.
Mr. and Mrs. Henry married on 24 April 1986, in Giles
County, Virginia. Mrs. Henry worked within the home, taking care
of their three children. Mr. Henry continues to work as a
Mrs. Henry is currently suing Mr. Henry for divorce.
Diana L. Johnson, Family Law Master of Mason County is assigned to
hear the divorce. On 18 August 1993, Family Law Master Johnson
held a temporary hearing in response to Mrs. Henry's motion seeking
custody of the children during pendency of the divorce action. The
hearing consisted of the presentation of oral and documentary
evidence by way of proffer only. Mr. Henry and Mrs. Henry were not
permitted to testify.
In the 19 August 1993 ruling, Family Law Master Johnson
found that Mrs. Henry was the primary caretaker of the three children, Samantha, then age 4; Jeffrey, then age 2; and Amanda,
then age 6. However, Mrs. Henry was awarded only temporary custody
of Samantha and Jeffrey. Mr. Henry was awarded temporary custody
There was no explicit finding that Mrs. Henry was an
unfit mother. In addition, the Family Law Master's opinion made no
reference to the proffered Domestic Violence Protective Order
issued against Mr. Henry, at Mrs. Henry's request by Mason County
Magistrate John Reynolds, on 13 May 1993. Instead, the Family Law
Master's opinion stated that: "[a] review of the records provided
appear to indicate that the Plaintiff is unable to cope with the
difficulties Amanda's medical condition and behavior cause."
Mrs. Henry subsequently filed a petition for a writ of
prohibition with Mason County Circuit Judge O. C. Spaulding on 8
September 1993. Upon reviewing the petition and attached exhibits,
Judge Spaulding issued an Order refusing to issue a rule to show
cause and also refusing to stay the Family Law Master's temporary
order pending appeal to this court. On 16 October 1993, this court
granted a stay of the Family Law Master's temporary order pending
resolution of this appeal. As a result of the stay, Mrs. Henry has
retained custody of all three children.
The primary issue in this case is Mrs. Henry's contention
that she also should have been awarded temporary custody of Amanda.
Mrs. Henry asserts three assignments of error in the circuit
court's refusal to grant a writ of prohibition against the Family
Law Master's temporary order granting custody of Amanda to Mr.
Henry: (1) the circuit court erred in failing to issue the rule to
show cause inasmuch as the Family Law Master violated Mrs. Henry's
right to due process by denying the right to be heard at the
temporary hearing in her divorce case; (2) the circuit court erred
in failing to issue the rule to show cause inasmuch as the Family
Law Master had a duty to award custody of all three children to
Mrs. Henry, upon finding that she was the primary caretaker and
that she was not unfit; (3) the circuit court erred by refusing to
issue the rule to show cause inasmuch as the Family Law Master had
a duty to consider evidence of Mr. Henry's acts of domestic
violence in making her custody determination.
Divorce and custody proceedings are subject to
traditional standards of procedural and substantive due process.
In the Syllabus of Crone v. Crone, 180 W.Va. 184,375 S.E.2d 816
(1988), we held that "[t]he due process of law guaranteed by the
State and Federal Constitutions, when applied to procedure in the
courts of the land, requires both notice and the right to be heard. Syl. pt. 2, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64 (1937)."
Although both parties had notice in this case, there is
insufficient evidence in the record to conclude whether Mrs. Henry
had a meaningful opportunity to be heard by way of proffer.
The simple fact that the evidence was by proffer, and not presented in a full evidentiary hearing, does not automatically negate a finding that due process was observed. Under the West Virginia Rules of Practice and Procedure for Family Law, effective 1 October 1993, Rule 14 expressly authorizes the presentation of evidence by proffer at hearings on motions for temporary relief, unless, "(b) after hearing the proffer, the family law master or the circuit judge determines that there are compelling reasons for conducting an evidentiary hearing on some or all of the issues raised." Furthermore, under W. Va. Code, 48-A-9(c)(2) , the family law master is authorized to rule on offers of proof in hearing.
If sufficient evidence had been proffered, then Mrs.
Henry's due process rights would have been vindicated. However,
this is a temporary custody proceeding involving the separation of
an epileptic child from her two siblings, and from the mother who
was her primary caretaker from birth. This is not a hearing on the
disposition of an inanimate object such as a television, or a set of golf clubs. Under the circumstances of this case, we conclude
that a more elaborate evidentiary hearing is warranted.
The Family Law Master's temporary custody order granting Mr. Henry the custody of Amanda seemed to turn on Mrs. Henry's ability or lack thereof to provide adequate medical supervision for Amanda because of her epilepsy. The evidence proffered on this issue was inconclusive. There is simply not enough information before this court to determine Mrs. Henry's fitness to care for Amanda.
"To be considered fit, the primary caretaker parent must:
(1) feed and clothe the child appropriately; (2) adequately
supervise the child and protect him or her from harm; (3) provide
habitable housing; (4) avoid extreme discipline, child abuse, and
other similar vices; and (5) refrain from immoral behavior under
circumstances that would affect the child. In this last regard,
restrained normal sexual behavior does not make a parent unfit."
Syl. pt. 5, David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912
(1989); Syl. pt. 2, Richardson v. Richardson, 187 W.Va. 35, 415
S.E.2d 276 (1992).
Mrs. Henry submits that she was the one who took care of
Amanda's medications, interacted with the doctors, and stayed by
Amanda's side during routine doctors' visits as well as emergency
hospitalizations. Mr. Henry proffered evidence that Mrs. Henry
questioned a doctor's order, in an emergency, tripling Amanda's
medication and causing extreme drowsiness. Subsequently, Mrs.
Henry checked Amanda out of the hospital against that doctor's
orders. The very next day, Mrs. Henry took Amanda to a different
facility for examination and treatment by her daughter's regular
Mr. Henry points to the incident as if checking Amanda
out of the hospital against a doctor's order shows Mrs. Henry's
unfitness as a mother. Yet a nurse's report shows that although
Mrs. Henry checked Amanda out, Mr. Henry also gave his consent to
discharge Amanda in a phone conversation with the nurse. Mrs.
Henry's actions appear to be the concerned and well reasoned
actions of a mother who is familiar with her daughter's usual
dosage of medication and more comfortable with treatments suggested
by her child's regular doctor, rather than the opinions of a new
doctor. Certainly, based on that one incident alone, it would be
an abuse of discretion for a court to decide that Mrs. Henry is an
unfit parent for Amanda.
Much is also made of Amanda's medical records in which
doctor's comments include information supplied by the mother
stating that Amanda's behavior is uncontrollable. Hence, Mr.
Henry's conclusion that Mrs. Henry is unable to handle Amanda.
This could also be the source of the Family Law Master's temporary
custody order stating that Mrs. Henry is "unable to cope with the
difficulties Amanda's medical condition and behavior cause." Full
and adequate disclosure of possible symptoms enable physicians
properly to diagnose and treat their patients, however. To
encourage a free flow of information between doctor and patient,
the law has recognized the value of doctor patient confidentiality,
and in these circumstances we find that the Family Law Master drew
too strong a conclusion from a comment offered for clinical
Hyperactivity is a technical term frequently referred to
in lay terms as uncontrollable behavior.See footnote 1 Behavioral disorders in
adults and children can be side effects of certain medications, and
once identified, can sometimes be controlled by simply switching the medicine. We hesitate to discourage a parent's need to secure
accurate diagnosis and treatment for her children by penalizing
full disclosure of symptoms for fear that information will later be
used against the parent in a custody proceeding.
Although Mr. Henry now claims that Mrs. Henry "by virtue
of a limitation of intelligence or inclination, is either unwilling
or unable to consistently tend to the medical needs of that child,"
her incapacity was not such that before separation Mr. Henry felt
compelled to take over the supervision of Amanda's medical care, or
that of his only son Jeffrey who was born with a heart murmur and
who also required special care. In any event, the Family Law
Master's temporary custody order cites vague generalities without
pointing to any specific evidence that would provide a reviewing
court with guidance in a matter of such importance as determining
parental fitness in a child custody proceeding.
Although this case involves a temporary custody order and
not a final disposition, the importance of having enough evidence
before the court to determine the correct legal ruling is no less
significant. We have recognized the problem of procedural delay in
child abuse and neglect cases, as well as in child custody matters.
In the Interest of Carlita B., 185 W.Va. 613, 622, 408 S.E.2d 365,
374 (1991). Often years will pass before final resolution, during
which child custody is determined by a "temporary" order.
As we stated in the Syllabus of Richardson v. Richardson,
187 W.Va. 35, 415 S.E.2d 276 (1992): "In a divorce suit the
finding of a trial chancellor based on conflicting evidence will
not be disturbed on appeal unless it is clearly wrong or against
the preponderance of evidence." Syl. pt. 1, Richardson. However,
this Court has recognized that when a record is unclear and factual
development would aid in reaching the correct decision, a remand is
warranted. Such is the status of the record in this case. "When
the record in an action or suit is such that an appellate court can
not [sic] in justice determine the judgment that should be finally
rendered, the case should be remanded to the trial court for
further development." Syl. pt. 2, South Side Lumber Co. v. Stone
Const. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967); Syllabus,
Painter Motors, Inc. v. Higgins, 155 W.Va. 582, 185 S.E.2d 502
(1971); Syl. pt. 4, Patricia Ann S. v. James Daniel S., 190 W.Va.
6, 435 S.E.2d 6 (1993); 27 C.J.S. Divorce §754 (1986).
The final issue raised is the domestic violence
protective order issued by Mason County Magistrate John Reynolds,
finding that Mr. Henry had abused Mrs. Henry. Mr. Henry did not
appeal the Magistrate's ruling. In Nancy Viola R. v. Randolph W.,
177 W.Va. 710,714, 356 S.E.2d 464, 468 (1987), we "recognized that
spousal abuse is a factor to be considered when determining
parental fitness for child custody." See e.g., Collins v. Collins,
171 W.Va. 126, 297 S.E.2d 901 (1982) (mother fired shots in direction of father attempting to exercise visitation rights
demonstrated violent tendencies rendering her unfit for custody);
In the Interest of Carlita B., 185 W.Va. 613, 631, 408 S.E.2d 365,
383 (1991) (terminated parental rights of husband convicted of
murdering wife); Kenneth B. v. Elmer Jimmy S., 184 W.Va. 49,52, 399
S.E.2d 192, 195 (1990) (terminated parental rights of husband
convicted of murdering wife).
It is clear that where domestic violence is present it
should be considered when determining parental fitness.See footnote 2 Being a
victim of domestic abuse may have temporarily impaired Mrs. Henry's
ability to care for Amanda, leading the family law master to
conclude she is unfit. In addition, if, as Mr. Henry alleges,
stress aggravates Amanda's medical condition, the mere fact that
Mr. Henry no longer shares a household with Mrs. Henry will
eliminate any of Amanda's stress that may have been caused by
exposure to spousal hostilities. As a result, the separation
pending final divorce may make Amanda easier to manage.
In the findings underlying West Virginia's domestic
violence statute, the state legislature recognized that:
"[c]hildren are often physically assaulted or witness violence
against one of their parents and may suffer deep and lasting
emotional harm from victimization and from exposure to family
violence." W. Va. Code, 48-2A-1(a)(2) . Consequently, a
family law master should take domestic violence into account when
making an award of temporary custody. The family law master
declined to address the domestic abuse issue in her temporary
custody order. That omission makes it impossible for this court to
determine whether the presence of spousal abuse was considered.
The domestic abuse issue should be developed below in conjunction
with the determination of Mrs. Henry's fitness to have custody of
Based upon the foregoing, we remand this case to the
circuit court for a full evidentiary hearing in order further to
develop the record to determine whether Mrs. Henry, as the primary
caretaker, is fit to have temporary custody of Amanda. Mrs. Henry
shall continue to have custody of Amanda pending the outcome of the
proceedings below. In light of the gravity of the subject matter
and the acknowledged long-term effects of a temporary child custody
order, a family law master should assure an adequate record for
appellate review before entering an order changing temporary custody. We, therefore, find it appropriate to remand this case to
the circuit court for a full evidentiary hearing.
For the foregoing reasons, the judgment of the Circuit
Court of Mason County is reversed and the case is remanded for
further proceedings consistent with this opinion.
Reversed and Remanded.
Footnote: 1 Refer to Dr. Kim's clinical notes on 2 August 1991, Appellant's Reply Brief at 4:
"Her behavior has been absolutely intolerable. Mom is concerned that the anticonvulsive medication may be the cause or certainly aggravating the behavior problems. . . . Exam shows indeed an extremely hyperactive 4 year old though alert and afebrile. . . ." [Emphasis added.]
Footnote: 2 By 1992, thirty-three states and the District of Columbia required Courts to consider domestic violence in determining custody and visitation. Developments in the Law: Legal Responses to Domestic Violence, 106 HARV. L. REV. 1597, 1603 (1993) (citing Barbara J. Hart, State Codes on Domestic Violence: Analysis, Commentary and Recommendations, 43 JUV. & FAM. CT. J., No. 4, 1992, at I, 29).