Carolyn Sue Daniel, Esq.
Cynthia A. Gaither, Esq.
Shepherdstown, West Virginia Martinsburg, West Virginia
Attorney for Appellant Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUDGE ROBERT B. STONE, sitting by temporary assignment.
JUSTICE SCOTT did not participate.
This case is before this Court upon appeal of a final order of the Circuit
Court of Morgan County entered on November 25, 1998. The appellant, Penny D. Kirby,
contends that the circuit court erred by transferring custody of her youngest child to her
ex-husband, Rodney G. Fox, the appellee, and ordering that custody of her oldest child
remain with him. This Court has before it the petition for appeal, the designated record,
and the briefs of counsel. For the reasons set forth below, the final order of the circuit
court is affirmed.
The parties were married on December 16, 1989, and were divorced in
October 1993. They have two children: Sanford Lee Fox, born February 9, 1987, and
Shawn Douglas Fox, born October 30, 1990. At the time of the divorce, Ms. Kirby was
awarded custody of the children and Mr. Fox was granted visitation.
In 1995, Mr. Fox filed a motion for custody of both children alleging that
they were being abused by Roy Kirby, Ms. Kirby's husband.See footnote 1
As a result of this motion,
Mr. Fox was granted emergency custody of Sanford. In a subsequent hearing, Mr. Fox
was awarded permanent custody of Sanford. However, Shawn remained in the custody
of Ms. Kirby.
In 1997, Mr. Fox filed a motion requesting custody of Shawn based on the
actions of Mr. Kirby. Mr. Fox alleged that Mr. Kirby had threatened and verbally abused
him and had interfered with his attempts to communicate with his children. Ms. Kirby
responded by filing a counter-motion seeking custody of Sanford. Prior to a hearing, the
family law master referred the case for mediation and a custody evaluation by a social
worker. On May 18, 1998, following a hearing on the matter, the family law master
issued her opinion that the children should remain separated with Sanford living with his
father and Shawn living with his mother. Thereafter, Mr. Fox filed a petition for review
with the circuit court.
On November 25, 1998, the circuit court entered an order stating that the family law master's findings were not supported by the evidence and granted custody of both children to Mr. Fox. Ms. Kirby then filed this appeal.
The sole issue before this Court is whether the circuit court erred by rejecting
the recommendation of the family law master and awarding custody of both children to
Mr. Fox. A circuit court's review of a family law master's recommendation is guided
by W.Va. Code § 48A-4-20(c) (1997).See footnote 2
As this Court stated in Syllabus Point 1 of
Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789 (1993):
W.Va.Code, 48A-4-10(c) (1990) [now W.Va. Code § 48A-4- 20(c)], limits a circuit judge's ability to overturn a family law master's findings and conclusions unless they fall within one of the six enumerated statutory criteria contained in this section. Moreover, Rule 52(a) of the West Virginia Rules of Civil Procedure requires a circuit court which changes a family law master's recommendation to make known its factual findings and conclusions of law.
W.Va. Code § 48A-4-20(c) (1997) provides:
The circuit court shall examine the recommended order of the master, along with the findings and conclusions of the master, and may enter the recommended order, may recommit the case, with instructions, for further hearing before the master or may, in its discretion, enter an order upon different terms, as the ends of justice may require. Conclusions of law of the family law master shall be subject to de novo review by the circuit court. Nothing in this subsection shall be construed toauthorize a de novo review of the facts; however, the circuit court shall not be held to the clearly erroneous standard in reviewing findings of fact. The circuit court shall not follow the recommendation, findings and conclusions of a master found to be:
(1) Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or immunity;
(3) In excess of statutory jurisdiction, authority or limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
With regard to modification of custody, this Court held in Syllabus Point 2 of Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977) that [t]o justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.
In a May 18, 1998 letter to counsel for the parties, the family law master
expressed her intention to recommend that both motions for modification of custody be
denied. The family law master indicated that she did not find that a change in custody
would materially promote the welfare of the children. She noted the children's expressed
interest in being together and the recommendation of Cecile Ollar, the court's custody
evaluator, that both children be placed with Mr. Fox. However, she stated, I do not
think it would be beneficial at this time for both boys to be with Ms. Kirby based on the
prior conflict between Mr. Roy Kirby and Sanford (Bozie) and it would require Bozie to
move to Romney. Similarly, I do not believe that it would be beneficial to Shawn to
change custody to Mr. Fox in that he has made the adjustment to a new school, and based
upon the past history of conflict with Bozie. The family law master's recommendation
was later set forth in a recommended order which was filed with the circuit court in August
Upon reviewing the transcript of the hearing before the family law master,
the circuit court found that the family law master's findings were not supported by
substantial evidence. In particular, the circuit court noted that there was considerable
testimony that the boys should be kept together in the same home. Ms. Ollar testified that
Sanford expressed a desire to live with his brother and that she believed that it was in the
children's best interest for them to be together. In addition, Gail Shade, a licensed
counselor who had worked with the family since 1995, stated that she thought the boys
wanted to be together and that Shawn did well living with either parent. Even the family
law master indicated that the boys had told her they wanted to live in the same house. The
circuit court further noted that there was no testimony that the boys had exhibited any type
of aggressive behavior toward each other in the past. Having determined that the boys
should live together, the circuit court found that Mr. Fox was the more suitable party for
custody because of the testimony that the children do well in his care and he was more
likely to promote a continuing relationship between the boys and their mother.
After thoroughly examining the record, we find that the circuit court's
conclusion that the family law master's recommendation was not supported by substantial
evidence was correct. The evidence presented at the hearing before the family law master
overwhelmingly indicated that it was in the children's best interest for them to reside in
the same household. Even the parties agreed that the boys should be living together. In
State ex rel. Treadway v. McCoy, 189 W.Va. 210, 213, 429 S.E.2d 492, 495 (1993), this
Court stated that [i]f a child has a close bond to a sibling, then an appropriate factor in
considering the custody of the child is to keep the siblings together. In this case, the
children obviously have a close bond as they have expressed a desire to live together.
Having determined that the children should be together, the circuit court
found that it was most appropriate for the children to live with their father. This decision
was based on the prior conflict between Mr. Kirby and Sanford and the fact that the boys
would have to spend a considerable amount of time alone with Mr. Kirby due to Ms.
Kirby's work schedule. In addition, the circuit court also considered Ms. Ollar's
testimony that Mr. Fox was more likely to help maintain the relationship between the
children and their mother than Ms. Kirby would between the children and their father if
the custody arrangement was reversed. Again, the evidence in the record supports the
circuit court's findings. Accordingly, the final order of the Circuit Court of Morgan
County entered on November 25, 1998, is affirmed.