No. 23557 -- John Woodruff Kessel and Ray Miller Kessel v.
David Keene Leavitt, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and
Brian P. Conaty
Workman, J., concurring, in part, and dissenting, in part:
This case focuses our attention not
only upon new and novel issues of law, but a compelling human tragedy as well. It is about
a family faced with a great personal dilemma and the difficult choices that were made. It
is also about a legal system that is ill-equipped to sort out and bring resolution to the
complex human and moral issues it is with increasing frequency being required to address.
It could be a television mini-series,
and the skillful script-writer could make any of the parties extremely empathetic
characters or heartless villains. Under our system, it was left to a jury of six average
people to make the judgments we now review, under legal instructions given by a competent
and thoughtful judge, governing many new issues never previously presented in West
Virginia, or in some cases, even in the United States. But with the possible exception of
the California lawyer whose own state supreme court found his conduct in this case to be
"immoral, reprehensible, and dishonest,"See
footnote 1 1 there are no real villains here. There is, however, a
$7.85 million judgment facing one family; a man who may never see his son; difficult
legal issues not capable of easy resolution; and a dissertation of law that will have
long-range implications on future situations.
I commend Justice Davis on this
thorough and lengthy opinion. Its completion obviously involved an immense amount of
research and a conscientious effort to fairly consider numerous difficult issues.
I concur with the majority
whole-heartedly in its ringing pronouncement of the rights of every parent to a
relationship with his or her child. That is not new law but it is important that it be
reiterated clearly. The United States Supreme Court held in Lehr v. Robertson, 463 U.S.
248 (1983) that "[w]hen an unwed father demonstrates a full commitment to the
responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his
child,' his interest in personal contact with his child acquires substantial protection
under the Due Process Clause." Id. at 261 (citation omitted). Similarly, in West
Virginia, this Court has held that this State's Due Process Clause extends
"substantial protection" to an "unwed father [who] demonstrates a full
commitment to the responsibilities of parenthood by coming forward to participate in the
rearing of his child." Syl. pt. 2, in part, State ex rel. Roy Allen S. v. Stone, 196
W. Va. 624, 474 S.E.2d 554 (1996). We have also enunciated the right to that
parent-child relationship in the context of the child's right. In re Brian D., 194
W. Va. 623, 461 S.E.2d 129 (1995); In re Christina L., 194 W. Va. 446, 460
S.E.2d 692 (1995); Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989)
(recognizing a child's right to continued association with one with whom there is an
emotional bond); see also In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996)
(recognizing child's right in some circumstances to continued association with foster
I concur also with the majority's
holding that, "to preserve his parental interest vis-a-vis his newborn child, an
unwed biological father must, upon learning of the existence of his child, demonstrate his
commitment to assume the responsibilities of parenthood by coming forward to participate
in the care, rearing, and support of his newborn child by commencing to establish a
meaningful parent-child relationship with his child.
I dissent, however, in several other
The numerous instructional errors that
the majority concludes were made are so substantial and numerous that cumulatively they
must be considered so unfairly prejudicial as to justify retrial for Anne and her parents.
Only where trial errors are determined not to have affected the merits of the case and not
to have prejudiced the appellants should such error be determined to be harmless. See 1B
Michie's Jurisprudence, Appeal and Error § 285 (1995). Given both the significance of
individual instructional errors as well as the cumulative effect of such error,See footnote 2 2 it appears that the
jury's verdict in this case likely may have been affected by such improper instructions.
Although extensive and detailed
instructions were given concerning the requirements of both the ICPC and the UCCJA,See footnote 3 3 and advising the jury
that these statutes applied to the facts here, the majority correctly concludes that
neither of these two compacts were applicable to the instant case and that such
instructions were therefore erroneously given. Since the central emphasis of these two
acts is providing for the welfare and best interest of children and because their
requirements were presented in great detail, it is certainly likely that the jury could
have looked to the provisions of these acts for guidance in determining liability and
assessing damages. Any determination of liability made with reference to the provisions of
these inapplicable laws would constitute reversible error. To simply say, as the majority
does, that because the overall jury charge was lengthy there is no reason to believe that
the jury placed undue emphasis on such erroneous instructions of law is short-sighted. If
the jury was left with an overall impression of legal directives that both delineated and
required procedural compliance under the facts of this case, it stands to reason that the
jury's verdict could have been affected by such improper instructions.
Another instructional error to which
the majority attaches only minor significance concerns the failure of the trial court to
give an instruction offered by Appellants regarding the fact that despite the validity of
the ex parte injunction, no violation of such injunction could be found until proof of
service on Anne or her personal appearance before the court was shown. The majority takes
the view that no error occurred because the trial court remained silent, in effect, by not
giving an instruction one way or the other on this issue. Since the jury was instructed,
however, that the injunction was valid, the issue once again becomes whether the jury
could have placed undue emphasis on the perceived violation of the injunction. The nuances
of service and jurisdiction clearly are not within the average juror's realm of
experience. Unlike the majority, I find the failure of the trial judge to have given this
instruction to constitute reversible error, at least when viewed cumulatively with the
other instructional errors.
Furthermore, the majority determined
that the instructions governing the issue of whether the defendants violated John's due
process and equal protections rights were unsupported by any applicable law and
constituted an abuse of the trial court's discretion. Here again, the majority concluded
that the use of instructions addressing John's due process and equal protection rights
which were unsupported by law constituted harmless error because such error was
"relatively minimal," and I must disagree. An obvious inconsistency was
presented to the jury by virtue of the fact that the trial judge separately instructed the
jury that Anne had no duty to notify John of the adoption and then by giving the due
process instruction, the trial court simultaneously instructed the jury that John's rights
as an unwed father may include "a right to notice of any adoption of that child and
an opportunity to be heard prior to the termination of his parental rights to that
child." Especially given the fact that the jury apparently took the jury instructions
with them during their deliberations, this incorrect statement regarding the violation of
John's constitutional rights likely contributed to the verdict reached.
The fact that, as the majority
acknowledges, no other jurisdiction has recognized "a claim based in tort and
sounding in fraud in circumstances fairly analogous to those underlying the instant
appeal" suggests a pressing need to closely examine the parameters of a cause of
action predicated on principles of fraud under the facts of this case. Appellants stress
that fraud based on concealment or silence cannot be proven absent a duty to disclose. See
Sabet v. Eastern Virginia Medical Auth., 775 F.2d 1266, 1270 (4th Cir. 1985). Based on the
facts of this case, Appellants argue that John cannot identify any duty to disclose that
they in turn violated. On this issue, Appellants had the trial court instruct the jury
that Anne was not obligated "to keep the plaintiffs or either of them apprised of her
whereabouts; the progress of her pregnancy or to provide them with any information
concerning the birth of her child." In addition, Appellants emphasize that no order
was ever entered by the circuit court which would have required Anne to reveal this
information. Based on Appellants' instruction, the trial court also instructed the jury
that Anne did not have a duty to provide notice to John regarding the adoption itself.
Since the majority states very clearly
that the rights of the plaintiff father began at the moment of birth, then pre-birth
conduct obviously could not be the basis for an award of civil damages. However, the jury
was permitted to hear a massive amount of evidence regarding pre-birth conduct of all of
the defendants. Although such evidence might be admissible with a proper limiting
instruction (to show motive or state of mind), no such limiting instruction was given.
Thus, all of this evidence was heard by the jury without proper legal instruction with
respect to the proper purposes for which they could consider the evidence.See footnote 4 4 Cumulatively, such
evidence together with the instructional error should be the basis for re-trial of the
liability issues with respect to the relatives.See
footnote 5 5
Furthermore, although John enjoyed
substantial rights with respect to his child, and although the defendants had no right to
engage in affirmative conduct to violate those rights, neither did they have any fiduciary
or other legal obligation to engage in affirmative acts to protect or ensure his rights.
Furthermore, the majority acknowledges that fraud can only be established with regard to
acts or omissions committed subsequent to the birth of the child. When the record in this
case is scrutinized for acts of concealment on the part of the maternal grandparents, all
that can even be suggested is that they may have known the whereabouts of Anne when they
were deposed, although there has been no proof of this, and that they may have known the
Canadian residence of the adoptive parents, but again there was no proof of this. Even if
a theory of fraud properly applies to a case such as this one, the evidence presented at
trial with regard to the maternal grandparents does not demonstrate that they violated any
alleged duty of disclosure.
Finally, the enunciation for the first time in this context of the availability of the affirmative defense of justification for Anne and her parents seems to dictate that this matter should be retried so that they might avail themselves of such defense if they so choose.See footnote 6 6
As courts are called upon with ever-increasing frequency to resolve difficult social and moral issues, I wish to strike a cautionary note. There are questions of immense moral magnitude that are not capable of easy answers, or susceptible to the facile application of clear-cut rules. Courts must very carefully scrutinize new causes of actions calling into question difficult personal decisions human beings face and the role of family and loved ones in those decisions. I am troubled that, whatever conclusions are made on a legal or moral basis, as to the conduct of these two individuals, John and Anne---and all the other Johns and Annes there are still to come---that the family members of such individuals put themselves at risk of permanent financial ruin because of the human support they may give. As judges, we must to some extent look not only at the legal issues inherent in these situations, but also figuratively put ourselves into the human shoes of the litigants. This observation is in no way intended to denigrate the obligation of any person in our society have an obligation to speak truthfully when placed under oath in a court proceeding, and this separate opinion has carefully excluded any objection to the majority's conclusion that our system cannot countenance perjury or subornation of perjury under any circumstance. Cases like the instant one will continue to require more wisdom than we mortals possess; thus we must tread carefully in enunciating the parameters of these new causes of action and contemplate fully the implications of our rulings in the many diverse factual situations yet to arise.
Footnote: 11 Kessel v. Leavitt, 75 Cal. Rptr.2d 639, 650 (Cal. Ct. App. 1998).
Footnote: 22 See Syl. Pt. 8, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995) (applying cumulative error doctrine to civil cases).
Footnote: 33 The majority observes that "the jury instructions given with respect to the UCCJA were much less onerous than were those instructive of the ICPC in that the UCCJA instructions did not contain any specific instructions indicating that the court determined these provisions to be applicable to the parties' controversy."
Footnote: 44 Although ordinarily if a party does not raise an instructional error, then it is deemed waived, here the parities once again did not have the benefit of the majority's holding that John's rights did not begin until the time the child was born.
Footnote: 55 Lawyer Leavitt did not appeal, thus his verdict is final.
Footnote: 66 The verdict against lawyer Leavitt, however, would not be subject to such retrial, since he did not post an appeal bond and his appeal was thereby dismissed. Furthermore, because there is such a substantial amount of evidence against Anne's brother, Brian, including evidence of possible lying under oath, his inability to utilize the defense of justification does not appear to be a substantial enough error to warrant retrial when compared to the weight of evidence against him.