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Gale E. Carroll Charles
Carroll & Thomas Giatras & Webb
Weston, West Virginia Charleston, West Virginia
Attorney for the Appellant Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
motion to vacate a judgment made pursuant to Rule 60(b), W Va.R.C.P., is
addressed to the sound discretion of the court and the courts ruling on such
motion will not be disturbed on appeal unless there is a showing of an abuse
of such discretion.' Syl. pt. 5, Toler v. Shelton, 157 W. Va. 778, 204
S.E.2d 85 (1974). Syllabus point 1, Jackson General Hospital v. Davis,
195 W. Va. 74, 464 S.E.2d 593 (1995).
of law and statutory interpretations are subject to a de novo review.
Syllabus point 1, in part, Burnside v. Burnside, 194 W. Va. 263, 460
S.E.2d 264 (1995).
This appeal originated from a divorce action between Shelia Zirkle, appellant/defendant below (hereinafter Mrs. Zirkle), and her spouse Myron Zirkle, II, appellee/plaintiff below (hereinafter Mr. Zirkle). Mrs. Zirkle appeals an order of the Circuit Court of Upshur County awarding the permanent custody of the parties' infant daughter to Mr. Zirkle. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm the decision of the Upshur County Circuit Court.
On January 28, 1997, Mr. Zirkle filed a divorce complaint alleging adultery by Mrs. Zirkle. Initially, Mr. Zirkle was awarded temporary custody of the parties' child.
However, based upon the recommendations of the family law master, the circuit
court entered an order dated December 22, 1997, which awarded permanent custody
of the child to Mrs. Zirkle.See footnote
2 Mr. Zirkle did not appeal that specific order. Instead, on April 14, 1998,
he filed a motion under Rule 60(b) of the West Virginia Rules of Civil Procedure
seeking relief from the court's custody ruling.See
Prior to a ruling by the circuit
court on Mr. Zirkle's Rule 60(b) custody motion, several matters occurred regarding
the child. On December 31, 1998, Mrs. Zirkle filed a motion with the circuit
court seeking permission to relocate the child to Missouri. Mrs. Zirkle wanted
to leave West Virginia because she had found employment in Missouri. As a result
of State legislative duties and immunity, Mr. Zirkle's counsel was unavailable
to attend a hearing on the motion.See footnote
4Therefore, Mrs. Zirkle sought and obtained an interim order from the family
law master on March 15, 1999, which permitted her to leave the State with the
child. Mr. Zirkle objected to the interim order. The circuit court sustained
the objection and awarded temporary custody of the child to Mr. Zirkle on March
30, 1999. Thereafter, Mrs. Zirkle complied with the order and returned the child
to West Virginia.
On May 24, 1999, a hearing
was held presumptively on Mr. Zirkle's Rule 60(b) motion regarding permanent
custody of the child. On June 30, 1999, the circuit court entered an order awarding
permanent custody of the child to Mr. Zirkle. This appeal followed.
In support of her assignment of error, Mrs. Zirkle directs this Court's attention to Powderidge Unit Owners Ass'n v. Highland Properties, Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996), wherein this Court expressly precluded use of Rule 60(b)(1) to correct erroneous applications of the law. The decision in Powderidge involved the plaintiff's appeal of a summary judgment for the defendant. One of the issues argued in Powderidge was whether or not the circuit court correctly denied the plaintiff's general Rule 60(b) motion.See footnote 7 The plaintiff sought to present additional evidence to the trial court, which it contended would preclude summary judgment. In Powderidge, this Court affirmed the trial court's decision to deny the Rule 60(b) motion because the plaintiff sought to introduce factual evidence that was available to it, and that should have been presented when the summary judgment motion was heard. 196 W. Va. at 706, 474 S.E.2d at 886.
Arriving at this decision in Powderidge, we discussed in general terms some of the restrictions imposed on the use of Rule 60(b). Specifically, we noted that [a] Rule 60(b) motion is 'designed to address mistakes attributable to special circumstances and not merely to erroneous applications of law.' Powderidge, 196 W. Va. at 705, 474 S.E.2d at 885 (quoting Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). In the case sub judice, Mrs. Zirkle incorrectly seeks to use the dicta from Powderidge for the proposition that Rule 60(b)(1) can never be used to correct a mistake of law.
During the proceedings below, the circuit court found that it had mistakenly applied the wrong standard of review when deciding the custody issue in its December 22, 1997, order and, thus, granted Mr. Zirkle's Rule 60(b) motion. In the initial child custody order, the court applied the clearly erroneous standard of review to the family law master's factual findings. The clearly erroneous standard was the proper method of review when the divorce complaint was filed.See footnote 8 However, when revisiting the child custody issue pursuant to the Rule 60(b)(1) motion, the circuit court determined that the Legislature had modified the standard pursuant to W. Va. Code § 48A-4-20(c) (1997).See footnote 9 The new legislation provided that conclusions of law shall be subject to a de novo review by the circuit court. Id.
Revisiting its earlier decision,
the circuit court concluded that the evidence established that Mr. Zirkle was
the parent best fit to care for the child. The trial court specifically found
[Mr. Zirkle] provides a more stable and familiar environment to the child and has not engaged in irrational behavior as has been exhibited by [Mrs. Zirkle] in some of her life choices. . . . Placing this child in unfamiliar surroundings with a virtual stranger [Mrs. Zirkle's paramour] and allowing the child to become exposed immediately to a romantic relationship between her mother and a person whom she does not know is clearly not in the best interests of this child.
Insofar as Mrs. Zirkle challenges only the propriety of using Rule 60(b)(1) to correct a legal mistake, we find no abuse of discretion in the trial court's decision to entertain and grant relief under the motion.See footnote 10
(b) On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant statutory relief in the same action to a defendant not served with a summons in that action, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, petitions for rehearing, bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
It should be noted that at the time of the circuit
court's decision on the Rule 60(b) motion, June 30, 1999, the Legislature had
once again amended W. Va. Code § 48A-4- 20(c) (1999), so as to require
application of the clearly erroneous review standard. The 1999 version of the
statute now reads in relevant part:
The circuit court shall examine the recommended order of the family law master,
along with the findings and conclusions of the family law 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. The circuit
court shall be held to the clearly erroneous standard in reviewing findings
W. Va. Code § 48A-4-20(c)(1999) (Emphasis added).
Mrs. Zirkle has not raised the issue of what impact, if any, the current version of the statute had on the circuit court's decision of the Rule 60(b) motion.