Suzanne W. Daugherty
George A. Daugherty
Elkview, West Virginia
Attorneys for Appellee
Steven L. Miller
Miller & Reed, L.C.
Cross Lanes, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
CHIEF JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
1. A circuit court should review findings of fact made
by a family law master only under a clearly erroneous standard, and
it should review the application of law to the facts under an abuse
of discretion standard.
2. When the Legislature enacts laws, it is presumed to
be aware of all pertinent judgments rendered by the judicial
branch. By borrowing terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, the
Legislature presumably knows and adopts the cluster of ideas
attached to each borrowed word in the body of learning from which
it was taken and the meaning its use will convey to the judicial
mind unless otherwise instructed. When the Legislature enacted
W.Va. Code, 48A-4-20(c) (1993), it intended the phrases "abuse of
discretion" and "unsupported by substantial evidence" as used in
this section to encompass the entire panoply of definitions which
the judicial branch had previously ascribed to those terms.
3. Under the clearly erroneous standard, if the
findings of fact and the inferences drawn by a family law master
are supported by substantial evidence, such findings and inferences
may not be overturned even if a circuit court may be inclined to
make different findings or draw contrary inferences.
4. If a circuit court believes a family law master failed to make findings of fact essential to the proper resolution of a legal question, it should remand the case to the family law master to make those findings. If it is of the view that the findings of fact of a family law master were clearly erroneous, the circuit court may set those findings aside on that basis. If it believes the findings of fact of the family law master are unassailable, but the proper rule of law was misapplied to those findings, the circuit court may reverse. However, a circuit court may not substitute its own findings of fact for those of a family law master merely because it disagrees with those findings.
The primary issue in this case is whether the circuit
court employed the correct standard of review when it entered its
own findings of fact and conclusions of law that were contrary to
those of the family law master. The facts of the case provide the
appropriate opportunity to discuss and develop more fully the
standard of review a circuit court must apply in reviewing the
findings and ultimate decision of a family law master.
The circuit court's decision to overturn the findings of
the family law master was indeed a big part of the ongoing
child visitation proceedings, but the court never addressed the issue of attorney fees that were also being sought by the plaintiff
below and appellant herein, Sherry H.See footnote 1 This context, however, does
not automatically divest us of jurisdiction. Although this Court
has strictly applied the "final judgment" rule, we have stated that
if we can determine from the record what the circuit court meant to
do and its reasons, the record may be sufficient to permit the
appeal to proceed. In this context, the intention of the circuit
court is controlling. See Vaughn v. Mobile Oil Exploration and
Producing Southeast, Inc., 891 F.2d 1195 (5th Cir. 1990). In
addressing the finality requirement, we said in Strahin v. Lantz,
___ W. Va. ___, ___ n.1, ___ S.E.2d ___, ___ n.1 (No. 22099
2/17/95) (Slip op. at 1), "we adopt a practical interpretation that
looks to the intention of the circuit court."
It is obvious that the circuit court felt the attorney
fee issue was moot when it set aside the family law master's
findings and entered its own findings in favor of the plaintiff
below and appellee herein, Stephen H. From this perspective, the
ruling of the circuit court can be viewed as settling all issues of
the proceedings. Specifically, we find review of the circuit
court's order is appropriate, as it appears it intended to dispose
of the entire case. Accordingly, the order in question is final, and this Court has appellate jurisdiction. Because we have decided
to reverse the judgment of the circuit court and reinstate the
family law master's findings, upon remand, the circuit court should
reconsider the issue of attorney fees.
The record reveals Stephen H. and Sherry H. were married
in August of 1984. Their daughters Ashley and Chelsey were born in
December of 1985 and March of 1988, respectively. Sherry H. moved
out of the marital home with her daughters in 1988, and the parties
were divorced in June of 1989.
Sherry H., the primary caretaker, was granted custody of
the children. It is undisputed that she allowed Stephen H. liberal
visitation privileges beyond those granted in the divorce order.
Apparently, for vindictive reasons, Stephen H. on some occasions
did not take advantage of the scheduled weekend visits with the
children. Notwithstanding these incidents, it appears the
visitation arrangements were amicable.
Numerous witnesses described the children as happy little
girls who were intelligent for their ages. Ashley was
characterized as truthful; no witness testified that she was prone
to fabricate a lie.
During the summer of 1989, the girls spent a week with
Stephen H. It was after this visit that Ashley first complained to
Sherry H. that her daddy had pulled her underpants down and
inappropriately touched her. Ashley demonstrated the touch to her
mother by pointing to her vagina. Sherry H. talked with her
daughter about what had happened, but did not act immediately.
Sherry H. told her sister, Barbara B., that she was afraid Stephen
H. had sexually abused the girls. During this same time period,
Ashley also relayed to Barbara B. what she told her mother.
Sherry H. planned to ask the girls' physician, Dr. John
Kelly, about her suspicions during their next appointment. Dr.
Kelly examined Ashley in June of 1989. No physical evidence of
abuse was found, but Dr. Kelly informed Sherry H. that she should
consult with a child psychologist if she suspected child abuse.
Sherry H. failed to pursue the matter any further until the
In the summer of 1990, Ashley's behavior changed
significantly. She was very reluctant to go with her father and
began having nightmares. Sherry H. arranged for Ashley to talk to a clinical psychologist, Linda Workman. Ms. Workman met with
Ashley on July 19, 1990; August 1, 1990; and September 19, 1990,
and with Ashley and Chelsey together on August 22, 1990. After
these interviews, Ms. Workman notified Sherry H. that she believed
Ashley was being truthful and had been molested by her father.
Based on this information, Sherry H. petitioned for modification of
At the September 20, 1990, hearing before the family law
master, Stephen H.'s motion for the children to be examined by
independent experts was granted. He suggested the experts and
arranged for the interviews with Dr. Kathleen Preville, Assistant
Professor of Pediatrics, West Virginia University at the Charleston
Division, and Pam Rockwell, a sexual abuse counselor.
Based upon a physical examination of the girls, Dr.
Preville testified that Chelsey's examination was normal. The
findings of Ashley's examination were basically inconclusive.
Ashley's hymenal opening was larger by one standard deviation than
the average size for her age. Dr. Preville testified that the
evidence would be consistent with digitalization. However, on
cross examination, she admitted the size was still within normal
ranges. Furthermore, Ashley's labial tissues were fused at birth
and required treatment by medication to mature fully, and this
treatment could not be ruled out as a factor causing the slight
Ms. Rockwell interviewed Ashley on October 10, 1990;
October 22, 1990; and November 8, 1990; and videotaped an interview
conducted on November 13, 1990. Anatomically correct dolls were
used to help Ashley explain what she remembered. Ashley, pointing
to the area between her legs, demonstrated to Ms. Rockwell where
she was touched by her father. She indicated that no one other
than her father had touched her in that area of her body. Ashley
also said her father touched Chelsey the same way, and this event
occurred in the bedroom of his house. Ms. Rockwell testified that
based on these interviews, she believed both Ashley and Chelsey
were sexually abused by Stephen H. Ms. Rockwell further testified
it was impossible to believe a four-year-old would fabricate these
Sherry H. testified that Ashley was particularly
reluctant to go with her father during Thanksgiving visitation of
1990. Two day-care workers testified they were unaware of the
abuse allegations at that time, but they noticed significant
changes in both the girls' behavior after the Thanksgiving visit
with Stephen H. Ashley was withdrawn from her peers, became
uncharacteristically physically abusive, and wanted to be held by
the day-care workers. Chelsey cried and wanted to be rocked and
soothed by the day-care workers. The girls exhibited unusual
behavior up until the facility closed in December of 1990.
Stephen H. emphatically denied sexually abusing his
daughters. He attributed their change in behavior to their
examinations by Dr. Preville and Ms. Rockwell in November of 1990.
He believed it was abnormal for such young children to undergo a
vaginal examination. Furthermore, he believed that Sherry H. and
her sister, Barbara B., coached Ashley into saying the abuse
occurred. To illustrate this point, he described an event that
took place in December of 1990 when he and his mother picked the
girls up in his car to take them for a visit. Sherry H. and her
sister met them at an Exxon Station in Cross Lanes. After the
girls got into the car and they drove down the road a little ways,
he playfully pinched Chelsey on the leg. (It was common for him to
do this in a fun-loving way and call them little monsters).
However, this time Chelsey got a funny look on her face and looked
at Ashley and said "Daddy touched me." He stated that Sherry H.
and her sister have somehow convinced the children that any time he
touches them, it is a bad touch.
When questioned about his wife's motives, Stephen H.
responded she was a very vindictive person. He admitted it would
be against Sherry H.'s pecuniary interests to see him lose his
license to practice dentistry or to be indicted on these charges.
He also admitted that Sherry H. had already obtained full custody
of the children before these allegations arose. However, he
believed she brought these charges in hopes that he would drop the petition he filed in February of 1990 requesting a reduction in the
amount of child support he had to pay.See footnote 2
Stephen H. called an expert witness on his behalf, Dr.
Richard Gardner, a psychiatrist and professor at Columbia
University College of Physicians and Surgeons, Division of Child
Psychiatry. Dr. Gardner has written textbooks and articles on the
topic of child sexual abuse allegations. At the May 16, 1991,
hearing, Dr. Gardner testified he interviewed Stephen H. at length,
reviewed the transcripts of the witnesses who testified at the
earlier hearings, analyzed the videotaped interview of the girls,
reviewed the doctors' reports submitted in the case, and observed
the testimony of Sherry H. on the day he testified. Dr. Gardner
opined that based on his extensive review of the evidence in this
case, Stephen H. did not sexually abuse Ashley or Chelsey. He also
stated that Stephen H. did not possess any of the some twenty-five
indicators of personality traits consistent with being a pedophile.
During his testimony, Dr. Gardner critiqued the
videotaped interview of the children performed by Ms. Rockwell.
Being highly critical of Ms. Rockwell's interview techniques, he stated the leading nature of the questions implanted a visual image
to Ashley that was not reality and that Ms. Rockwell's subsequent
questioning reinforced the positive responses to familiar
questions. He characterized her use of anatomically correct dolls
in the interviews as sexual abuse in and of themselves. Dr.
Gardner believed Ashley's testimony was contaminated by repeated
and improper interview techniques to the point she was no longer a
Dr. Gardner testified he would have preferred to have met
with the children and their mother, but Sherry H. would not submit
to an examination or allow her children to be interviewed. Dr.
Gardner opined that Sherry H.'s "exclusionary maneuvers" in the way
she left her husband and excluded the girls from seeing their
paternal grandmother and other friends and the fact she had been
sexually abused as a child would militate toward a false or
It was the determination of the family law master that
Sherry H. was a credible witness and did not coach Ashley into
making the allegations of abuse. While the family law master noted
the evidence regarding the alleged financial motivation of Sherry
H. to falsely accuse her former husband, she found the
rehabilitation evidence more persuasive.See footnote 3 Furthermore, the family law master found Sherry H. was not pursuing these allegations for
improper motives.See footnote 4
The family law master found the expert testimony of Ms.
Rockwell, Ms. Workman, and Dr. Preville to be credible and convincing.See footnote 5 Dr. Gardner's opinions, however, were given little weight.See footnote 6
The family law master outlined Stephen H.'s testimony and
characterized it as not credible. The family law master stated
"except for his firm denial that he molested his daughters, [his
testimony was] evasive, argumentative, peculiar, and generally not
credible; furthermore, his inartful attempts to plug incongruent
evidence of Petitioner's motivations, and Ms. Rockwell's videotape
into his expert's theories are obvious and further reduce his
credibility." Stephen H.'s conduct during the hearings before the
family law master was also criticized.See footnote 7
Accordingly, the family law master found Stephen H.
sexually molested Ashley "on several occasions" and "probably"
molested Chelsey between the summer of 1989 and 1990. She
recommended that visitation with Stephen H. be terminated until he
satisfactorily completes psychological treatment. The family law
master also recommended that Stephen H. pay for the cost of the
psychiatric treatment for the girls, the cost of the proceedings,
and Sherry H.'s attorney fees.
Unlike the family law master, the circuit court was
impressed by Dr. Gardner, and found his testimony persuasive.See footnote 8 The
circuit court discussed articles written by experts in the area of
child interview techniques, particularly in the context of child
sexual abuse situations. Based on the literature reviewed, the
circuit court determined the family law master's finding that the
interview techniques used were not "sufficiently leading or
suggestive to invalidate the truthfulness of Ashley's answers" was
plainly wrong. The circuit court found that "[e]ven a cursory examination of the available literature reveals that the statements
of Linda Workman concerning suggestibility and those of Pam
Rockwell concerning fabrication are wrong."
The circuit court agreed with Dr. Gardner's criticisms of
how Ashley was interviewed. It relied on these conclusions to find
the reports of Ashley's abuse were not credible, Ms. Workman and
Ms. Rockwell's opinions were not credible, and Dr. Preville's
report illustrated a lack of physical evidence of abuse.
Therefore, the circuit court found the allegations against Stephen
H. were not substantiated.See footnote 9
The circuit court declined to address what factors lead
to the motivation of Sherry H. to pursue what it believed to be
"Much has been made by all parties to this action about the presence or absence of motivational factors on the part of Sherry [H.] That is not for this Court to determine. Even if such a determination were to be made it would be mere speculation and certainly could not be used as a basis for determining whether or not sexual abuse occurred. Therefore, this Court will not address the issues of motivation but rather leave them to be debated by the experts such as Dr. Gardner."
In response to the family law master's finding of fact
No. 61, which concerned Stephen H.'s exhibition of certain
pedophilic indicators, the circuit court discounted her findings.
However, the circuit court did agree with the family law master that Stephen H.'s conduct during the hearing was less than ideal: "This Court must admit that Dr. [H] did not make the best of witnesses. His evasive, argumentative answers did nothing to help his case. Yet, this Court must not let that interfere with its consideration of Dr. [H.]'s firm, adamant denial of abusing his children."
Based on its conclusion that Stephen H. did not sexually
abuse Ashley or Chelsey, the circuit court ordered Stephen H.'s
visitation rights reinstated. The circuit court requested the
parties to provide written proposals of how to best reunite Stephen
H. with his daughters "with the least amount of emotional and
psychological trauma to all parties involved in this action."
Our conclusion with regard to the appropriate standard of
review that should be applied to findings of fact made by a family
law master is supported by precedent and reasonable statutory
construction. In State ex rel. Dillon v. Egnor, 188 W. Va. 221,
226, 423 S.E.2d 624, 629 (1992), quoting State ex rel. Sullivan v.
Watt, 187 W. Va. 447, 453, 419 S.E.2d 708, 714 (1992), Justice
Miller, writing for a unanimous Court, explicitly stated that "'the
circuit court does not act de novo, but reviews the findings of
fact and conclusions of law made by the family law master.'" Thus,
this Court clearly has recognized the limited "appellate" role of a circuit court in reviewing the findings of fact of a family law
In both Dillon and Sullivan, this Court gave elaborate
instructions regarding the role of a family law master in
developing a record. Significantly, in Dillon, immediately after
we remarked that a circuit court should not give de novo review to
findings of fact, we detailed the fact-finding responsibilities of
a family law master by stating: "Clearly, in order for the circuit
court to fulfill its function, the recommended order must contain
a concise and complete statement of findings of fact and
conclusions of law, the reasons therefor, and the appropriate
disposition of the case[.]" 188 W. Va. at 226, 423 S.E.2d at 629.
These fact-finding responsibilities of a family law master and the review of a circuit court are statutorily mandated.
We also stated in Sullivan, 187 W. Va. at 455, 419 S.E.2d
at 716,See footnote 12 "that one of the chief purposes of the legislative
adoption of the family law master system was to expedite divorce,
alimony, and child support procedures. See W. Va. Code, 48A-4-11 (1990)." (Emphasis added). Thus, when the statutory mandates are
coupled with the purposes of our family law master system, it
hardly can be argued that the Legislature intended for the circuit
courts of this State to have de novo reviewing authority.See footnote 13
Our cases implicitly have recognized the limitations on
the standard of review for circuit courts. In Wharton v. Wharton,
188 W. Va. 399, 403, 424 S.E.2d 744, 748 (1992), we used the
following language in reversing an order of the circuit court: "We
find the circuit court's order refusing to follow the family law
master's recommendation to increase Mrs. Wharton's alimony to $1300
per month was not required by the 'ends of justice' and was against
the preponderance of the evidence." Similarly, both the language
and purpose of W. Va. Code, 48A-4-20(c), indicate the scope of
review accorded to circuit courts is limited.See footnote 14
When the Legislature enacts laws, it is presumed to be
aware of all pertinent judgments rendered by the judicial branch.
By borrowing "terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, [the Legislature]
presumably knows and adopts the cluster of ideas attached to each
borrowed word in the body of learning from which it was taken and
the meaning its use will convey to the judicial mind unless
otherwise instructed." Evans v. United States, ___ U.S. ___, ___,
112 S.Ct. 1881, 1885, 119 L.Ed.2d 57, 67 (1992). See also
Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866, 871, 55
L.Ed.2d 40, 47 (1978) ("'[W]here words are employed in a statute
which had at the time a well-known meaning at common law or in the
law of this country they are presumed to have been used in that
sense unless the context compels to the contrary.' Standard Oil v.
United States, 221 U.S. 1, 59, 31 S. Ct. 502, 515, 55 L.Ed. 619[,
646] (1911)"). When the Legislature enacted W.Va. Code, 48A-4-
20(c), it intended the phrases "abuse of discretion" and
"unsupported by substantial evidence" as used in this section to
encompass the entire panoply of definitions which the judicial
branch previously ascribed to those terms. The words used in W. Va. Code, 48A-4-20(c), are nearly identical to the language of the
West Virginia Administrative Procedures Act, W. Va. Code, 29A-5-
4(g) (1964). Specifically, subsection (g) of the Act uses such
terms as "clearly wrong," "abuse of discretion," and "unwarranted
exercise of discretion." Our cases have consistently held that
judicial review under subsection (g) is deferential. See Randolph
County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
(1989); West Va. Human Rights Comm'n v. United Transp. Union, Local
No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).
The Legislature's use of such phrases as "abuse of
discretion," "[u]nsupported by substantial evidence," and
"[u]nwarranted by the facts" are phrases of limitation for
appellate review purposes. W. Va. Code, 48A-4-20(c). As a
practical matter, many of these phrases are not susceptible to
categorical definition. However, circuit courts are well aware of
such concepts as "clearly erroneous" and "abuse of discretion" and
are in a position to determine which cases fall into these
categories.See footnote 15
In addition to giving general guidance as to how the division of responsibility is to be exercised, the Legislature enacted this statute for the very purpose of allocating the various decision-making responsibilities between the family law master and the circuit courts. When a statutory provision's purpose is to conserve judicial resources by preventing duplication of effort, it would be counterproductive to adopt an intensive standard of de novo appellate review.See footnote 16 Indeed, it would defeat the purpose of W. Va. Code, 48A-4-20(c), to permit review of findings of fact without deference to the family law master. For this reason, we make it explicit that a circuit court must review findings of fact made by a family law master under the clearly erroneous standard.
Under the clearly erroneous standard, if the findings of
fact and the inferences drawn by a family law master are supported
by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make
different findings or draw contrary inferences.See footnote 17 See also Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 577, 105 S. Ct. 1504,
1513, 84 L.Ed.2d 518, 530 (1985); Beck v. QuickTrip Corp., 708 F.2d
532, 535-36 (10th Cir. 1983) (findings of fact may be adequate even
if they are not exhaustive when the record supports those findings
of fact); Maxwell v. Mason, 668 F.2d 361, 362 (8th Cir. 1981).
There are many critical aspects of an evidentiary hearing
which cannot be reduced to writing and placed in a record, e.g.,
the demeanor of witnesses. These factors may affect the mind of a
trier of fact in forming an opinion as to the weight of the
evidence and the character and credibility of the witnesses. Thus,
the importance of these factors should not be ignored by a
reviewing court. Given a family law master's intimate familiarity
with the proceedings, the family law master is in the best position
to weigh evidence and assess credibility in making the ultimate
ruling on disputed issues.
As we said in Board of Education v. Wirt, W. Va.
, , S.E.2d , (No. 22117 12/21/94) (Slip op. at 23): "Indeed, if the lower tribunal's conclusion is plausible when
viewing the evidence in its entirety, the appellate court may not
reverse even if it would have weighed the evidence differently if
it had been the trier of fact." (Citation omitted).See footnote 18 This
deference given to the lower tribunal in Wirt also is appropriate
in the present case because the family law master "is in a position
to see and hear the witnesses and is able to view the case from a
perspective that an appellate court can never match." Weil v.
Seltzer, 873 F.2d 1453, 1457 (D.C. Cir. 1989). (Citation omitted).
We do not mean to suggest by today's holding that a circuit court is prohibited from conducting a meaningful review of a family law master's findings of fact and conclusions of law. To the contrary, the very statutory provision in question compels appropriate review by limiting the grounds upon which a family law master's decision may be affirmed by a circuit court. We merely hold that a circuit court may not "improperly conduct . . . a de novo weighing of the evidence in the record." Anderson, 470 U.S. at 576, 105 S. Ct. at 1513, 84 L.Ed.2d at 530 (reversing the lower court because of that error). Similarly, although this deferential standard applies to all findings of fact, including those described as "ultimate facts" or "factual conclusions," this standard "does not inhibit [a circuit] court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 104 S. Ct. 1949, 1959-60, 80 L.Ed.2d 502, 517 (1984). (Citations omitted).
In addition, the foregoing discussion should not be
interpreted as stripping a circuit court of its primary function as
an expositor of the law. Questions of law are reviewed de novo.
Committee on Legal Ethics v. McCorkle, W. Va. , S.E.2d
(No. 22315 11/18/94). The identifying features of questions of
law are: (1) they are general; (2) they do not normally rest on
the existence or nonexistence of specific facts; and (3) they
result in consistent governing legal rules. Questions of law
should be standardized regardless of the facts. Therefore, we
review alleged errors with regard to applying the law to findings
of fact under an abuse of discretion standard.See footnote 19
In summary, we hold if a circuit court believes a family
law master failed to make findings of fact essential to the proper
resolution of a legal question, it should remand the case to the
family law master to make those findings.See footnote 20 If it is of the view
that the findings of fact of a family law master were "clearly
erroneous," the circuit court may set those findings aside on that
basis. If it believes the findings of fact of the family law
master are unassailable, but the proper rule of law was misapplied
to those findings, the circuit court may reverse. However, a
circuit court may not substitute its own findings of fact for those
of a family law master merely because it disagrees with those
findings. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709,
106 S. Ct. 1527, 89 L.Ed.2d 739 (1986). Thus, it is by these
aforementioned standards that a circuit court must review the
findings of fact and the application of law of a family law master.
Any reasonable review of the record demonstrates that the
circuit court afforded no deference to the findings of the family
law master and instead improperly substituted its own judgment.See footnote 21
The circuit court found Dr. Gardner's testimony to be credible and
adopted his analysis of the facts. While it is clear that the
circuit court disagreed with the findings of the family law master,
the court failed to demonstrate how those findings could be
characterized as clearly erroneous. At no time did the circuit
court make a determination whether there was substantial evidence
supporting the factual findings of the law master or whether the
inferences reached were plausible under the facts. To the
contrary, the circuit court conducted a de novo review of the
evidence and made his own credibility determinations.
The family law master not only relied upon three expert
witnesses, Dr. Preville, Ms. Workman, and Ms. Rockwell, but also
upon the testimony of Sherry H. and Barbara B. Even if we concede
that Ms. Rockwell's interview techniques contaminated the
credibility of Ashley's subsequent statements, the family law
master could still consider the fact that Ashley complained to her
mother and to her mother's sister that her father sexually abused
her. These complaints began a year before she was subjected to the interview by Ms. Rockwell. Sherry H. was not quick to respond to
these charges and did not file the petition for visitation
modification until after she received Ms. Workman's opinion. It is
also clear that these allegations of abuse were not raised during
the heat of a custody battle. In fact, substantial evidence
supports the finding that Sherry H. was more than accommodating to
Stephen H.'s visitation rights.
It should also be noted that Ashley met with Ms. Workman
in July and August of 1990. She met with Ms. Rockwell in October
and November of 1990. Therefore, it is plausible to infer that Ms.
Workman's initial findings were not tainted by the improper
interview techniques of Ms. Rockwell.
Reversed and Remanded.
More significantly, the family law master found Sherry
H.'s credibility was further enhanced because
"she at first did not want to believe her daughter, delayed for almost a year in taking any action until she began to worry because the child's behavior had changed sufficiently towards visitations with Respondent that Sherry [H.] began to believe that something must have happened. Only then on July 19, 1990 did she take her daughter who was then four and one half years old, to a clinical psychologist, Linda Workman, who was initially engaged according to both Ms. Workman and the Petitioner specifically to determine whether, in Ms. Workman's professional opinion, the events described by Ashley had actually occurred; furthermore, notwithstanding Petitioner's concerns, she still allowed her two daughters to accompany the Respondent and his mother Edith [A.] to the beach in August of 1990 because Ms. Workman's evaluation was incomplete; only after Ms. Workman's third session with Ashley and Chelsey on August 22 at which Ashley described in detail what had happened and Ms. Workman expressed her opinion that Ashley was telling the truth, did Petitioner file her Petition requesting Modification of Visitation[.]"
"Ashley [H.] was telling the truth and that
both Ashley and Chelsey [H.] had been
sexually abused by their father, Stephen L.
[H.,] . . . that children are incapable of
this kind of fabrication at the age of four,
and although suggestible, cannot sustain a
series of lies without detection; that
contact between an alleged perpetrator and
child victim can be coercive and is not the
best way to arrive at the truth; that the
best test is to interview the child and rely
upon the experience and training of the
Additionally, the family law master found Linda Workman
to be "a qualified psychologist who had ample opportunity to
observe Ashley [H.]" and that her expert testimony was "credible
and convincing." The family law master made similar findings as
to Pam Rockwell. While not expressly endorsing the methodology
employed by Ms. Rockwell during her videotaped interview with the
children, the family law master did
"not find the questions or methodology
sufficiently leading or suggestive to
invalidate the truthfulness of Ashley's
answers which were basically consistent with
the child's claims made for over a year prior
thereto to other credible witnesses,
therefore, the Court finds Ms. Rockwell's
professional opinion credible and convincing,
and the videotape to be convincing
confirmation of Ashley [H.]'s prior
allegations, and of the probability of
Chelsey [H.]'s sexual abuse."
Finally, the family law master found that Dr. Preville
"testified that Chelsey's physical examination was normal; that
Ashley [H.]'s genitalia exam was abnormal, in that Ashley's
hymenal opening was larger by one standard deviation than the
average for her age of four years and eleven months old; that
there was no evidence of penal penetration, but that this
enlarged hymenal opening was consistent with digitalization (the
insertion of a finger); and that therefore, it was her expert
opinion to a reasonable degree of medical probability that Ashley
[H.] had been sexually abused." The family law master found that
Dr. Preville's testimony was "corroborative of Ashley [H.]'s allegations that . . . Stephen [H.] penetrated her with his fingers, especially in light of the evidence that Ashley [H.] is quite small for her age and therefore could be expected to have a smaller hymenal opening than average[.]"
"demeanor throughout these hearings
surprisingly inappropriate and domineering considering the seriousness of Ashley's charges and the demonstrated competence and diligence of his several attorneys, during which the Respondent alternately glared or laughed at the Petitioner and her counsel and made sarcastic noises and rude, deprecatory gestures during the testimony of witnesses which behavior is not reflected on the record[.]"
"While the Law Master accorded
little weight to the testimony and opinions
of Dr. Gardner this Court was quite impressed
with his training, experience, knowledge of
this case and his opinions. In this vein the
Law Master stated that she found 'it of no
probative value that Respondent's expert, Dr.
Gardner, is more impressively credentialed
than psychologist Workman or Pamela Rockwell;
the Court's decision is based upon the
totality of the evidence and not merely upon
expert opinion, otherwise the battle of
credentials would reduce the fact finding of
this Court to mere confirmation of the
position of the litigant which could afford
to find and hire the 'fastest gun' or the
most impressive expert.
"Obviously, a Court must consider the totality of the evidence in reaching a decision but it cannot ignore the relative training and expertise levels of those experts providing the testimony. To do otherwise, as suggested by the Law Master, would obviate the need for expert testimony and would place one with a B.S. Degree and no further training on the same level with one who possessed a Doctorate and had years of research and practical training and experience."
"In light of the foregoing, the
'disclosures' to Pam Rockwell and her
testimony thereon, are found by this Court to
be unreliable, of no credibility and will not
be used by this Court to make a finding of
sexual abuse by Stephen [H.]
"Once Pam Rockwell's testimony is found lacking the testimony of Linda Workman and Dr. Kathleen Preville must also be found to lack credibility. Both Dr. Preville's and Workman's testimony as to abuse having been perpetrated by Stephen [H.] is predicated upon the 'disclosures' to Rockwell. The 'disclosures' having been found to lack credibility, the testimony of Dr. Preville and Linda Workman is also found to lack credibility and be unreliable."
"(c) 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. 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
"(6) Unwarranted by the facts."
Where there is disagreement between the circuit court and the family law master, however, the substantial nature of the evidence supporting the circuit court's findings is further called into question, and this Court must examine the record with greater care. This is so even when that circuit court does not disagree with the family law master's factual findings, as such, but draws different inferences from the facts.
"We recognize that under W. Va. Code, [48A-4-
20(c) (1993)], a circuit court 'may, in its
discretion, enter an order upon different
terms, as the ends of justice may require.'
This section, however, 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." (Emphasis added; footnote omitted).
We believe the position of Steven H. is foreclosed by Higginbotham, and we are given no reason to depart from that ruling.
If a family law master's fact-finding function is at issue, the standard of review is the clearly erroneous standard. If the challenge is to a family law master's application of the law to the facts, the abuse of discretion standard is appropriate. If the ruling more closely resembles a question of law, it may be reviewed de novo.