Gregory A. Gaudino
Petroplus & Gaudino
Wheeling, West Virginia
Attorney for the Appellee
R. Joseph Zak
Charleston, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUDGE FOX sitting by temporary assignment.
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 the law to the facts under an
abuse of discretion standard." Syl. Pt. 1, Stephen L. H. v. Sherry
L. H., No. 22084, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. filed
March 6, 1995).
2. "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." Syl. Pt. 3,
Stephen L. H. v. Sherry L. H., No. 22084, ___ W. Va. ___, ___
S.E.2d ___ (W. Va. filed March 6, 1995).
3. "If . . . [the circuit court] 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." Syl.
Pt. 4, in part, Stephen L. H. v. Sherry L. H., No. 22084, ___ W.
Va. ___, ___ S.E.2d ___ (W. Va. filed March 6, 1995).
4. "'The primary caretaker is that natural or adoptive parent who, until the initiation of the divorce proceedings, has been primarily responsible for the caring and nurturing of the child.' Syl. Pt. 3, Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981)." Syl. Pt. 2, Rhodes v. Rhodes, 192 W. Va. 14, 449 S.E.2d 75 (1994).
This is an appeal by Pamela D. Campbell (hereinafter "the
Appellant" or "the mother") from a December 9, 1994, order of the
Circuit Court of Ohio County granting custody of the Appellant's
two children to the Appellant's former husband, Appellee Anthony B.
Campbell (hereinafter "the Appellee" or "the father"). The
Appellant contends that the lower court failed to recognize her as
the primary caretaker of the children and failed to follow the
proper scope of review of the family law master's determination.
We find no error by the lower court and affirm its decision.
Upon the father's request for divorce in January 1991, the
Appellant was granted temporary custody of the parties' two
children, Heather, born in January 1988, and Anthony, born in
November 1989. Based upon allegations made by the Appellant, the
father initially denied paternity of the youngest child.See footnote 1
Subsequent to blood tests in March 1992 establishing the Appellee's
paternity, he has not readdressed the issue of paternity and has
sought custody of both children.
Family Law Master Wayne Mielke conducted hearings in July and
September 1992, taking the testimony of the mother, the father, and
several other witnesses. The family law master entered a
recommended order in December 1993, finding that the Appellant was
the primary caretaker and further finding that even if the parties
shared caretaking duties, it was in the best interests of the
children to remain in their mother's custody.
Upon consideration of this matter, the lower court determined
that the family law master had an erroneous understanding of the
facts regarding the primary caretaker status and had based the
determination of primary caretaker to some extent upon the period
of time the mother had been granted temporary custody of the
children. The lower court further found that the parties equally
shared caretaking duties and that the best interests of the
children would be served by granting custody to the father. The
Appellant has appealed to this Court and alleges that the lower
court failed to follow the scope of judicial review set forth in
West Virginia Code § 48A-4-20(c) (Supp. 1994).See footnote 2
Pursuant to the provisions of West Virginia Code § 48A-4-
20(c), the lower court has discretion to follow the recommendation
of the family law master or enter an order upon different terms.
We recently addressed a circuit court's scope of review of a family
law master's decision in Stephen L. H. v. Sherry L. H., No. 22084
___ W. Va. ___, ___ S.E.2d ___ (W. Va. filed March 6, 1995),
wherein we acknowledged the necessity of a limitation on review and
set forth guidelines for a circuit court's review of a family law
master's decision. According to the standard enunciated in
syllabus point one of Stephen L. H., "[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
the law to the facts under an abuse of discretion standard." Id. at
___, ___ S.E.2d at ___, Syl. Pt. 1.
In syllabus point three of Stephen L. H., we explained the
following: "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." Id., Syl. Pt. 3.
Finally, according to syllabus point four of Stephen L. H., "[i]f
. . . [the circuit court] 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." Id., Syl. Pt. 4, in
In the present case, the lower court specifically found that the family law master committed both factual and legal errors. One important factual error regarded the period during which the mother provided all caretaking duties for Heather. The family law master found that the mother remained at home with Heather from her birth in January 1988 to March 1989, thereby concluding that the mother was the primary caretaker during that one-year two-month period. The evidence in the record, however, reflects that the mother returned to work in March 1988, only two months after the child was born. That finding by the family law master, obviously an important issue in the determination of primary caretaker, was a clearly erroneous factual finding and thus subject to the circuit court's authority to overturn.
Moreover, the record indicates that the father broke his elbow
and recovered at home for several weeks after the birth of Heather,
assuming many primary caretaking duties during his recovery. Once
both parents had returned to work, they alternated shifts to care
for the baby. Upon the birth of Anthony in November 1989, the
mother undertook part-time employment, and both parties cared for
Furthermore, upon review of the testimony of various
witnesses, the circuit court concluded that the family law master
had failed to recognize that the father had a stronger emotional
bond with the children than the mother. Witnesses testified that
the children were more attached to the father and that such
attachment was obvious from the family interaction when all four
were together. For instance, Patricia Boiney, a police officer who
worked with the father, testified that she frequently witnessed the
interaction between the father and his children. She felt that the
father performed most of the caretaking duties while the parties
were all together. Another family friend, Charlotte Brown,
testified that the children clung to the father and that he cared
for his children and that their mother ignored them. Another
witness described the father as both a mother and a father figure,
explaining the when both parents were with the children, it was the
father who performed most caretaking duties.
The Appellee contends that the family law master legally erred by basing his primary caretaker determination, in part, upon activities of the Appellant which occurred after the divorce was filed and during the time she had temporary custody awaiting a final custody determination.See footnote 3 For instance, the family law master found that the Appellant toilet trained Anthony and taught him the alphabet. However, at the time of the divorce, the child was only fourteen months of age and still in diapers. Numerous factual findings were advanced dealing with the time period after the separation and divorce of the parties. We have repeatedly held that the relevant time period for consideration in determining the primary caretaker status of the parents is the time during which the parties resided together prior to the separation and divorce. "'The primary caretaker is that natural or adoptive parent who, until the initiation of the divorce proceedings, has been primarily responsible for the caring and nurturing of the child.' Syl. Pt. 3, Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981)." Syl. Pt. 2, Rhodes v. Rhodes, 192 W. Va. 14, 449 S.E.2d 75 (1994). As Justice Miller noted in his dissent in Graham v. Graham, 174 W. Va. 345, 326 S.E.2d 189 (1984) (Miller, J., dissenting), Garska "made it abundantly clear that: '[I]t is incumbent upon the circuit court to determine as a threshold question which parent was the primary caretaker before the domestic strife giving rise to the proceedings began.'" Id. at 347, 326 S.E.2d at 191.
As we explained in Starkey v. Starkey, 185 W. Va. 642, 408
S.E.2d 394 (1991), the determination of primary caretaker status
cannot be made "simply by reference to any one moment of time. It
is not merely a snapshot in time taken on the day the divorce
proceedings are initiated . . . ." Id. at 646, 408 S.E.2d at 398.
The lower court in Starkey had based its decision upon the fact
that one parent had custody of the children for three months prior
to the filing of the divorce proceedings. Id. We reversed,
holding that "[t]he determination of primary caretaker is a task
which must encompass, to some degree, an inquiry into the entirety
of each child's life, with obvious emphasis on the more recent
period of time." Id.
Although the parents' post-separation involvement with and
interest in their children is generally an important factor to
examine, it would be inequitable to base the primary caretaker
decision upon activities occurring during the time in which the
court has granted one parent temporary custody. If the primary
caretaker determination were based upon that time, the parent
receiving temporary custody would have a significant and unfair
advantage in arguing that he or she should be deemed the primary
caretaker of the children.
Upon review of the evidence in this matter, we find no
deviation by the lower court from the standard of review set forth
in West Virginia Code § 48A-4-20(c) and in Stephen L. H.
Therefore, we affirm the decision of the lower court.
Footnote: 1 The Appellant apparently admitted that she had committed adultery and initially indicated that Anthony was not the Appellee's biological son.
Footnote: 2 West Virginia Code § 48A-4-20(c) provides as follows:
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 evidence; or
(6) Unwarranted by the facts.
Footnote: 3 The difficulties of this case are exacerbated by the family law master's egregious delay in concluding this matter. Hearings were held in July and September 1992, and a decision was not rendered until December 1993.