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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term
JASON L. GALLOWAY
TIFFANY D. GALLOWAY
Appeal from the Circuit Court of Wood County
Honorable J.D. Beane, Judge
Case No. 03-D-142
Submitted: September 8, 2009
Filed: October 13, 2009
Michele Rusen, Esq.
Catherine B. Adams, Esq.
Rusen and Auvil, PLLC Legal Aid of West Virginia
Parkersburg, West Virginia Parkersburg, West Virginia
Attorney for Appellant
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. A guardian ad litem should be appointed to represent the interests of
the minor child whenever an action is initiated to disprove a child's paternity. Syllabus
Point 4, Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989).
2. In reviewing a final order entered by a circuit court judge upon a
review of, or upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous standard, and the
application of law to the facts under an abuse of discretion standard. We review questions
of law de novo. Syllabus Point 1, Carr v. Hancock, 216, W.Va. 474, 607 S.E.2d 803
3. A trial judge should refuse to admit blood test evidence which would
disprove paternity when the individual attempting to disestablish paternity has held himself
out to be the father of the child for a sufficient period of time such that disproof of paternity
would result in undeniable harm to the child. Syllabus Point 3, Michael K.T. v. Tina L.T.,
182 W.Va. 399, 387 S.E.2d 866 (1989).
4. 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).
Syllabus Point 7, In re Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995).
This case is before the Court upon Petitioner Jason Galloway's appeal of a final
order of the Circuit Court of Wood County entered on February 14, 2008. The circuit court
affirmed a family court ruling which denied Jason Galloway the opportunity to present DNA
evidence for the purpose of disestablishing paternity of a child, Ivy Lynn Galloway, born
during his marriage to Respondent Tiffany Galloway.
After carefully reviewing the briefs, the legal authority cited and the record
presented for consideration, we affirm the circuit court's ruling.
The divorce proceeding between Jason Galloway and Tiffany Galloway has
been on-going for almost a decade. The couple were married on August 24, 1998. Two
months later, on October 28, 1998, Tiffany Galloway gave birth to a daughter, Ivy Lynn
Galloway (hereinafter Ivy). Approximately three months after Ivy was born, Tiffany told
Jason that the baby might not be his. Shortly thereafter, Jason, Tiffany and Ivy underwent
DNA testing and a report, issued on April 29, 1999, confirmed that Jason was not Ivy's
biological father. Jason continued living with Tiffany and Ivy for approximately 14 months
after discovering he was not the father.
On July 10, 2000, Tiffany Galloway filed for divorce and the couple separated.
Jason Galloway moved in with his mother after the couple separated. Jason's mother
continued to treat Ivy as her grandchild after the separation, often times bringing Ivy to her
house. On one of these visits in 2003, when Ivy was four years old, Jason Galloway told Ivy
to stop calling him daddy.
The issue of paternity was raised during the initial divorce proceeding and a guardian ad litem
was appointed to represent Ivy. This divorce proceeding was delayed,
awaiting the results of a paternity action in Ritchie County, West Virginia, in which a man
named Michael Stevens underwent paternity testing to determine if he was Ivy's biological
father. The paternity test showed that Mr. Stevens was not Ivy's father. On November 16,
2001, a final hearing was held in the Galloway's divorce proceeding. Neither party appeared
for this hearing (See footnote 1)
and the initial divorce action was dismissed.
A second divorce action was filed, this time by Jason Galloway, on February
21, 2003. Since paternity was again raised, the Family Court of Wood County appointed
Joseph P. Albright, Jr., to serve as guardian ad litem
to determine whether disestablishment
of paternity was in the best interest of the child, as required by Syllabus Point 4 of Michael
K.T. v. Tina L.T.
, 182 W.Va. 399, 387 S.E.2d 866 (1989). (See footnote 2)
In Michael K.T.
, this Court
identified eight factors which must be considered when determining whether blood test
evidence should be admitted for the purpose of disproving paternity. These eight factors are:
1) the length of time following when the putative father first was
placed on notice that he might be the biological father before he
acted to contest paternity;
2) the length of time during which the individual desiring to
challenge paternity assumed the role of father to the child;
3) the facts surrounding the putative father's discovery of
4) the nature of the father/child relationship;
5) the age of the child;
6) the harm which may result to the child if paternity were
7) the extent to which the passage of time reduced the chances
of establishing paternity and a child support obligation in favor
the child; and
8) all other factors which may affect the equities involved in the
potential disruption of the parent/child relationship or the
chances of undeniable harm to the child.
Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989).
Following his investigation, the guardian ad litem orally presented his
conclusion to the court that it would not be in the best interest of the child to disestablish
paternity because: (1) the couple was married when the child was born; (2) Jason Galloway
is listed as the father on the child's birth certificate; and (3) Jason Galloway has steady
employment, while another man alleged to be the biological father of the child was in jail.
The family court adopted the guardian ad litem's findings and refused to allow Jason
Galloway the opportunity to present DNA evidence for the purpose of disestablishing
Following the family court's ruling, Jason Galloway filed a pro se appeal to
the Circuit Court of Wood County. The circuit court denied his appeal citing the guardian
ad litem's conclusion that it was not in the best interest of the child to disestablish paternity,
and stating it is clear that the best interest of the child would include receiving financial
support from the Petitioner . . . The Petitioner continued to support the child as his own for
many months following Respondent's confession.
On January 13, 2006, Jason Galloway filed a Petition for Appeal with this
Court. On March 6, 2006, the West Virginia Bureau of Child Support Enforcement filed a
motion to remand the case to family court so that a further inquiry into the Michael K.T. factors could occur. On March 13, 2006, Jason Galloway and Tiffany Galloway filed a joint
motion to remand the case. By order dated March 17, 2006, this Court refused the Petition
for Appeal and remanded the case to the Family Court of Wood County for the additional
proceedings requested by the parties.
The family court below subsequently conducted hearings in this matter on May
16, 2006, and January 30, 2007. At the January 30, 2007, hearing, the guardian ad litem failed to produce a written report, but orally told the court that his opinion had not changed
and he again recommended that Jason Galloway should not be allowed to present DNA
evidence for the purpose of disestablishing paternity. The guardian ad litem stated that many
of the Michael K.T. factors are neutral in this case and did not weigh in favor of either party.
The guardian ad litem told the court that his conclusion was based on what was in the best
interest of this child. Counsel for Jason Galloway argued that her client was not receiving
a meaningful hearing because the guardian ad litem failed to produce a written report
addressing the Michael K.T. factors. While the guardian ad litem did not produce a written
report prior to this hearing, he orally presented his findings to the court and offered to answer
any questions from counsel regarding his investigation and his conclusion that disestablishing
paternity was not in the best interest of this child.
The family court again relied on the guardian ad litem's recommendation and
entered a final order on October 16, 2007, in which it ruled that disestablishing paternity was
not in the child's best interest. Jason Galloway appealed this ruling to the circuit court. The
circuit court affirmed the family court ruling in a February 14, 2008, final order, in which it
discusses the eight Michael K.T. factors and concludes that it is not in the best interest of this
child to allow Jason Galloway to present evidence for the purpose of disestablishing
paternity. Jason Galloway now appeals that order.
Standard of Review
In this case, we are asked to review an order of the Circuit Court of Wood
County that affirmed an order rendered by the Family Court of Wood County. With respect
to our review of such an order by a circuit court, we have held that:
In reviewing a final order entered by a circuit court judge upon
a review of, or upon a refusal to review, a final order of a family
court judge, we review the findings of fact made by the family
court judge under the clearly erroneous standard, and the
application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.
Syllabus Point 1, Carr v. Hancock, 216, W.Va. 474, 607 S.E.2d 803 (2004).
The issue of whether paternity test results disproving paternity should be
admitted into evidence first came before this Court in the Michael K.T. case. In Syllabus
Point 3 of Michael K.T., this Court held:
A trial judge should refuse to admit blood test evidence which
would disprove paternity when the individual attempting to
disestablish paternity has held himself out to be the father of the
child for a sufficient period of time such that disproof of
paternity would result in undeniable harm to the child.
As this Court has frequently emphasized, the best interest of the child is the
polar star by which all matters affecting children must be guided. See
Syllabus Point 7, In
re 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).). With this principal in mind, this Court has recognized that the
law favors the innocent child over the putative father in certain circumstances. (See footnote 3) Michael
, 182 W.Va. at 405, 387 S.E.2d at 872. Although we did not establish a finite period of
time which must pass before blood test evidence is inadmissible, we did state that absent
evidence of fraudulent conduct which prevented the putative father from questioning
paternity, this Court will not sanction the disputation of paternity through blood test evidence
if there has been more than a relatively brief period of time. Id
. In William L. v. Cindy E.L.
201 W.Va. 198, 495 S.E.2d 836 (1997), for example, this Court found that a husband in a
divorce proceeding could not use blood test evidence to disestablish paternity of child with
whom he had a normal father/child relationship for four years.
Turning to the case sub judice, we initially note that Jason Galloway has
presented this issue four times in the courts below, twice in family court and twice on appeal
to the Circuit Court of Wood County. On all four of these occasions, the courts below have
concluded that Jason Galloway held himself out as Ivy's father for a sufficient period of time
such that allowing him to offer evidence for the purpose of disproving paternity would result
in harm to the child. Jason Galloway's main argument before this Court is that the guardian
ad litem failed to perform a proper investigation into the Michael K.T. factors, and the circuit
court below made factual findings that were clearly erroneous and not supported by the
record. We disagree.
The undisputed facts the circuit court relied on were that Jason Galloway
remained married to Tiffany Galloway and living with Ivy for 14 months after discovering
he was not the child's father. While the issue of paternity was raised during the initial
divorce proceeding, that proceeding was dismissed on November 16, 2001. The paternity
issued remained dormant from that date until February 21, 2003, when Jason Galloway filed
a second divorce action. During this gap between the dismissal of the first case and the filing
of the second case, Ivy continued to have a grandmother/grandchild relationship with Jason
Galloway's mother. Ivy continued to consider Jason Galloway to be her father until at least
2003. (See footnote 4)
While it is understandable that counsel for Jason Galloway would be frustrated
by the guardian ad litem's
failure to produce a written report, the lack of a written report is
not a sufficient ground to remand this case to the family court below for further proceedings.
The guardian ad litem
investigated the case, spoke with both Jason and Tiffany Galloway,
and discussed the Michael K.T.
factors at the January 30, 2007, family court hearing. The guardian ad litem
offered to answer any questions counsel had about his investigation at this
hearing. (See footnote 5)
The family court considered the oral recommendation of the guardian ad litem
well as the testimony of Jason Galloway when it concluded that he should not be allowed to
present evidence for the purpose of disestablishing paternity.
In its February 14, 2008, final order, the circuit court weighed the evidence
presented by both parties, and conducted a review of all eight Michael K.T.
circuit court put strong emphasis on the first factor, the length of time following when the
putative father first was placed on notice that he might be the biological father before he
acted to contest paternity, and found that it weighed against Jason Galloway because a
relatively lengthy period of time had passed between the time he was put on notice that he
was not Ivy's father and the time he acted to contest paternity. The fourth Michael K.T.
factor, the nature of the father/child relationship, was also given great weight by the circuit
court, who found there was evidence that the Petitioner continued to hold himself out as the
father of the child and the child had always considered him her father until at least the age
of four. Additionally, the child has had an ongoing relationship with the Petitioner's mother
throughout most of the pendency of this matter. The circuit court considered the last three
factors together and determined that Ivy could suffer great harm if she has no legal father
and is not provided any support, financial or otherwise, from such legal father. (See footnote 6)
court applied the eight Michael K.T.
factors to the evidence in the record and Jason Galloway
has failed to demonstrate that these findings are clearly erroneous.
Finally, we note that Ivy is now ten years old and that remanding this case for
a further investigation by the guardian ad litem, as urged by Jason Galloway, would again
delay paternity from being settled. As this Court has previously stated, it is in the child's
best interest for paternity to be settled sooner rather than later. State ex rel. Dep't of Health
and Human Resources v. Michael George K., 207 W.Va. 290, 299, 531 S.E.2d 669, 678
For the reasons set forth in this opinion, the judgment of the Circuit Court of
Wood County, rendered on the 14th
day of February 2008, is affirmed.
The fact that neither party appeared for this hearing is set forth in a September 26,
2007, family court order. Jason Galloway disputes this and states that he attended the
Syllabus Point 4 of Michael K.T. v. Tina L.T., supra, states:
A guardian ad litem
should be appointed to represent the interests of the
minor child whenever an action is initiated to disprove a child's
The Court relied on the reasoning of a Pennsylvania case, Commonwealth ex rel.
Gonzalez v. Andreas
, 245 Pa.Super. 307, 369 A.2d 416 (1976), in concluding that the law
favors the innocent child over the putative father in certain circumstances. Specifically, the
Court relied on the following from the Andreas
Absent any overriding equities in favor of the putative father,
such as fraud, the law cannot permit a party to renounce even an
assumed duty of parentage when by doing so, the innocent child
would be victimized. Relying upon the representation of the
parental relationship, a child naturally and normally extends his
love and affection to the putative parent. The representation of
parentage inevitably obscures the identity and whereabouts of
the natural father, so that the child will be denied the love,
affection and support of the natural father. As time wears on,
the fiction of parentage reduces the likelihood that the child will
ever have the opportunity of knowing or receiving the love of
his natural father. While the law cannot prohibit the putative
father from informing the child of their true relationship, it can
prohibit him from employing the sanctions of the law to avoid
the obligations which their assumed relationship would other
, 245 Pa.Super at 313, 369 A.2d at 419.
In 2003, when Ivy was four years old, Jason Galloway told her to stop calling him
We note that Trial Court Rule 21.03 allows a guardian ad litem to make
recommendations to the court by testimony or in writing, unless otherwise directed by the
The circuit court's final order discusses a number of ways in which Ivy could be
harmed by allowing Jason Galloway to disestablish paternity:
First, the child would be left without a legal father even after
having spent almost half of her life believing that the Petitioner
was her father. Second, the child would be left without any type
of support. This support would, as the Petitioner has clearly
pointed out to the Court, undoubtedly include financial support.
The child would be significantly harmed by the fact that she
would never have any reliable or meaningful financial support
from any legal father, natural or otherwise, if the paternity were
disproved. . . Also, it is important to note that there was a
significant passage of time, at least four years, during which the
chances of establishing paternity and a support obligation in a
natural father in favor of the child have been diminished and
reduced. Further, at this point in time the child is eight years old
and the chances of establishing paternity are becoming