Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2001 Term
STATE OF WEST VIRGINIA, EX REL.
HONORABLE ROBERT A. BURNSIDE, Judge,
of the Circuit Court of Raleigh County; H. SUZANNE MCGRAW,
Family Law Master for the 13th Family Court Circuit;
MARK B., by and through Martha Jane B., as Conservator/
Guardian and next friend of Mark B., a protected person;
and SHERRY ALISON L.,
Petition for Writ of Mandamus and
Writ of Prohibition
WRIT GRANTED AS MOULDED
April 4, 2001
Filed: April 26, 2001
Norris Kantor, Esq.
Mark W. Kelley, Esq.
David B. Kelley, Esq.
Ray, Winton & Kelley, PLLC
Katz, Kantor & Perkins
Charleston, West Virginia
Bluefield, West Virginia
Attorney for Respondent Martha Jane B.
Attorneys for Petitioner
Tammy Mitchell Bittorf, Esq.
Bittorf & Santa Barbara, PLLC
for Respondent Sherry L.
L. Bucy, Esq.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MCGRAW, deeming himself disqualified, did not participate in
the decision of the Court.
JUDGE DANIEL P. O'HANLON, sitting by temporary assignment.
In determining whether to
entertain and issue the writ of prohibition for cases not involving an absence
of jurisdiction but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1) whether the party
seeking the writ has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged or prejudiced in
a way that is not correctable on appeal; (3) whether the lower tribunal's order
is clearly erroneous as a matter of law; (4) whether the lower tribunal's order
is an oft repeated error or manifests persistent disregard for either procedural
or substantive law; and (5) whether the lower tribunal's order raises new and
important problems or issues of law of first impression. These factors are general
guidelines that serve as a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need not be satisfied,
it is clear that the third factor, the existence of clear error as a matter of
law, should be given substantial weight. Syllabus Point 4, State ex rel.
Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
In the instant case we are
asked to examine a February 2, 2001 order of the Circuit Court of Raleigh County.
In that order, the circuit court allowed a third party to intervene in a divorce
action, and then entered an ex parte temporary order giving custody of
the parties' two children to the third party. The mother of the children has
now petitioned this Court to halt the enforcement of the circuit court's order.
After carefully examining the
arguments presented by the parties, and the particular facts in the record,
we find that the third party failed to establish standing to intervene in the
underlying divorce action. Accordingly, as set forth below, we grant a writ
The petitioner, Denise L.B.,
and Mark B. were married in 1990, and for most of their married life resided
in Beckley, West Virginia, where Mark maintained a dental practice. They are
the parents of two children, Christopher (age 7) and Marie Katherine (age 5).
In July 1999, Mark sustained
a severe head injury, and for a time after the injury was in a coma. He later
regained consciousness, and has undergone substantial rehabilitation. Mark continues
to have significant cognitive and physical limitations, and currently resides in Martinsburg, West Virginia with his mother and guardian/conservator,
respondent Martha B.
Shortly after Mark was injured,
in August 1999, Denise moved to Morgantown, West Virginia where her mother resides.
On March 23, 2000, Denise filed a complaint for divorce in the Circuit Court
of Raleigh County, West Virginia.
During the course of the divorce
proceedings, a guardian ad litem was appointed to represent the interests
of the parties' two children. After conducting an investigation, the guardian
ad litem alleged that Denise had prevented the children from visiting
their father Mark since his July 1999 injury. Furthermore, the guardian ad
litem alleged that Denise had told the children that their father was dead,
and had also instructed teachers and counselors for the children that they were
similarly to tell the children their father was dead.
On February 2, 2001, the family
law master overseeing the divorce proceedings in Beckley conducted by telephone
what was apparently intended to be a routine status conference. Instead, at
that telephone conference, a third party appeared by telephone and presented
to the family law master an emergency motion to intervene in the divorce action
and a motion to take custody of the two children.
The third party is respondent
Sherry L., the sister of Mark, who resides in Martinsburg, West Virginia. Appearing
with her attorney by telephone, Sherry L. sought to intervene in the divorce
action between Denise and Mark. Although the children were residing with their maternal grandmother in Morgantown, Sherry L. also sought
an emergency ex parte order pursuant to W.Va. Code, 48-2-13(e)
from the family law master giving her custody of the two children. The attorneys
for both Denise and for Mark's conservator/guardian indicated that they were
surprised by the motions. The attorney for Denise objected; the attorney for
Mark's conservator/guardian stated that while he had not had a chance to consult
with his client, he believed that his client would be amenable to Sherry L.
taking custody of the children.
With the exception of a handful
of brief questions asked of Sherry L., no witnesses or exhibits were offered
at the telephonic hearing. Moreover, no evidence or argument was presented regarding
Sherry L.'s standing to intervene. Instead, evidence was proffered, by the attorneys
and the guardian ad litem, primarily on the question of custody.
At the hearing, the guardian
ad litem for the children expressed that she had reservations regarding
the children continuing to remain in Denise's custody.See
footnote 1 1 She stated that Denise was currently employed and
living in Virginia, that the children were left with their grandmother in Morgantown,
and that Denise would occasionally visit the children on weekends. She believed
that Denise's and Mark's families had become polarized in a way that was psychologically harmful to the children. She recommended that it
would be in the best interests of the children that they receive psychological
services to prepare them for the knowledge that their father was still living.
The guardian ad litem
also indicated to the family law master that she was of the belief that Denise
might remove the children from West Virginia -- apparently in an attempt to
defeat West Virginia's jurisdiction over the issue of the custody of the children.
Accordingly, she recommended that the children be immediately transferred from
Morgantown to the custody of Sherry L. in Martinsburg.See
footnote 2 2
On February 2, 2001, the family
law master forwarded a recommended order to the circuit court recommending that
Sherry L.'s petition to intervene be granted. In the order, the family law master
also found that the two children were not in the care of either natural parent,
but rather in the custody of their maternal grandmother. The family law master
further found that Denise, who had been living and working in Virginia, had
been visiting the children almost every weekend. The family law
master found Sherry L. to be a fit and proper person to have custody of the
two children. She therefore recommended that temporary custody of the children be granted to Sherry L., that Denise be
given visitation rights to the children, and that Mark be denied visitation
until the children had received independent psychological counseling. Lastly,
the family law master recommended that a full evidentiary hearing on the custody
of the children be held within 20 days.
The circuit court entered an
order adopting the family law master's recommendations that same day.See
footnote 3 3
Denise then filed the instant
petition for a writ of mandamus or writ of prohibition, to halt the enforcement
of the circuit court's February 2, 2001 order.
In the instant case, the petitioner
seeks to prohibit the enforcement of the circuit court's February 2, 2001 order.See
footnote 4 4 We must first determine whether prohibition is appropriate
in the instant case. The rationale behind a writ of prohibition is that
by issuing certain orders the trial court has exceeded its jurisdiction, thus
making prohibition appropriate. State ex rel. Allen v. Bedell, 193
W.Va. 32, 36, 454 S.E.2d 77, 81 (1994) (Cleckley, J., concurring). As such, writs
of prohibition . . . provide a drastic remedy to be invoked only in extraordinary
situations. 193 W.Va. at 37, 454 S.E.2d at 82.
There are five factors that this
Court will consider in determining whether it is appropriate to issue a writ of
In determining whether to entertain
and issue the writ of prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its legitimate powers,
this Court will examine five factors: (1) whether the party seeking the writ has
no other adequate means, such as direct appeal, to obtain the desired relief;
(2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous
as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard
for either procedural or substantive law; and (5) whether the lower tribunal's
order raises new and important problems or issues of law of first impression.
These factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although
all five factors need not be satisfied, it is clear that the third factor, the
existence of clear error as a matter of law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d
12 (W.Va. 1996).
In the instant action, we are
reviewing the circuit court's entry of an order giving Sherry L. the right to
intervene in Denise and Mark's divorce, and further granting her an ex parte
temporary order altering the custody of a child in a divorce action. Such ex
parte temporary orders during the pendency of a divorce are authorized by
W.Va. Code, 48-2- 13(e)(1)(B)  which states, in pertinent part:
(e) An ex parte order granting
all or part of the relief provided for in this section may be granted without
written or oral notice to the adverse party if:
(1) It appears from specific
facts shown by affidavit or by the verified complaint that immediate and irreparable
injury, loss or damage will result to the applicant before the adverse party
or such party's attorney can be heard in opposition. The potential injury, loss
or damage may be anticipated when the following conditions exist: Provided,
That the following list of conditions is not exclusive: . . .
The adverse party is preparing to quit the state with a minor child or children
of the parties, thus depriving the court of jurisdiction in the matter of child
custody; . . .
Clearly, under W.Va. Code, 48-2-13(e)(1)(B), provided that the appropriate
parties and facts are before the court, a court would have the authority to enter
an ex parte temporary order granting a change of custody of minor children.
We therefore focus our examination
in this case upon the standing of Sherry L. to intervene in the divorce action
between Denise and Mark to obtain an ex parte temporary order pursuant
to W.Va. Code, 48-2-13(e)(1)(B). The respondents indicate that Sherry L.
is authorized to intervene in the divorce action by W.Va. Code, 48-11-103(2)
, a statute entitled Parties to an action under this article,
which states in pertinent part and with emphasis added:
In exceptional cases the court
may, in its discretion, grant permission to intervene to other persons or public
agencies whose participation in the proceedings under this article it determines
is likely to serve the child's best interests.
The statute is therefore clear that intervention is allowed only for the purpose
of proceedings under this article -- in other words, Article 11 of
Article 11 of Chapter 48 of the
Code was designed by the Legislature to set forth principles governing
the allocation of custodial and decision-making responsibility for a minor child
when the parents do not live together. W.Va. Code, 48-11-101(a) .
We recognize that while Article 11 establishes extensive procedures regarding
the custody and parenting of children, it also specifically states that other
persons may intervene in exceptional cases only for proceedings under Article
In the instant case, Sherry L.
sought to intervene to obtain an ex parte temporary order pursuant to W.Va.
Code, 48-2-13(e)(1)(B) -- or, in other words, to participate in proceedings
under Article 2 of Chapter 48. We do not believe that this intervention was authorized
by the Legislature. Accordingly, applying the third factor of State ex rel.
Hoover v. Berger, supra, we find that Sherry L.'s attempt to intervene
pursuant to W.Va. Code, 48- 11-103(2) to obtain an ex parte temporary
order under W.Va. Code, 48-2-13(e)(1)(B) was clearly erroneous as a matter
In our analysis under State
ex rel. Hoover v. Berger, we also consider whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain the desired relief.
W.Va. Code, 48-2-13(g)  specifically states that [n]o order
granting temporary relief may be the subject of an appeal or a petition for review.
W.Va. Code, 48-2- 13(f)  does, however, allow a party to challenge
an ex parte temporary order by seeking a full evidentiary hearing before
the family law master within 20 days of the entry of the order. In the instant
case, the family law master did require the parties to set a hearing for a full
evidentiary hearing within 20 days. However, we believe that when a third party
without apparent standing intervenes in an action between a husband and wife to
alter the custodial arrangements of infant children, a 20-day delay may not be
an adequate means of obtaining relief.
Accordingly, we conclude on the
record before us that Sherry L. did not establish standing to intervene in the
divorce of Denise L.B. and Mark B. for purposes of obtaining an ex parte
temporary order under W.Va. Code, 48-2-13(e)(1)(B). We therefore grant
the petitioner a writ of prohibition, barring enforcement of the circuit court's
February 2, 2001 order.
Writ Granted as Moulded.
Footnote: 1 1Counsel
for the petitioner characterizes the guardian ad litem's testimony as suggestive
of the fact that the guardian ad litem was either mentally unstable or under
the influence of mind altering medication, and contends that the entire
proceeding was marred by illegalities and failed to follow the prescribed rules
of evidence or procedure.
After a careful review of the hearing transcript, we find
no evidence supportive of counsel's ill-considered characterizations.
Footnote: 2 2The
guardian ad litem based her recommendation, in part, upon this Court's holding
in Arbogast v. Arbogast, 174 W.Va. 498, 327 S.E.2d 675 (1984). In Arbogast, the
Court addressed a situation where a mother repeatedly refused to allow the father
or paternal grandparents to visit with the parties' child. We found the mother's
actions to be reprehensible, and stated that [a] mother's 'very
act of preventing . . . children of tender age from seeing and being with their
father is an act so inconsistent with the best interests of the children as to,
per se, raise a strong probability that the mother is unfit to act as custodial
parent.' Arbogast, 174 W.Va. at 505, 327 S.E.2d at 682-83, quoting Entwistle
v. Entwistle, 61 A.D.2d 380, 384-385, 402 N.Y.S.2d 213, 216 (1978).
Footnote: 3 3On
February 8, 2001, Denise filed a Verified Petition for Emergency Ex Parte
Order in the Circuit Court of Spotsylvania County, Virginia, seeking an
emergency order from the Virginia court giving her custody of the parties' two
children. The petition was apparently filed pursuant to the Virginia Uniform Child
Custody Jurisdiction Act.
In the petition, Denise contended that the West Virginia
circuit court, in its February 2, 2001 order, had failed to make a finding of
an immediate and irreparable injury as required for an ex parte order
under West Virginia law. She further contended that the children had significant
connections with the Commonwealth of Virginia and there is available in Virginia
substantial evidence concerning the children's present or future care, protection,
training and personal relationships.
On March 1, 2001, a Virginia circuit judge refused to
grant Denise an emergency order, concluding that the West Virginia court
had a jurisdictional basis for its order[.] The Virginia judge also found
that the contacts between the parties, their children, and Raleigh County,
West Virginia, are substantial, and considerably stronger than their nexus with
Spotsylvania County,  Virginia. The court therefore concluded that it
would violate the purpose and intent of the Uniform Child Custody Jurisdiction
Act for the Virginia court to enter custody orders in conflict with those previously
made in a West Virginia Court.
Footnote: 4 4The
petitioner contends that a writ of prohibition is warranted because the circuit
court's order was void ab initio since there was no finding of abuse
or neglect of the children. The petitioner also contends that prohibition is warranted
because abuse and neglect determinations were outside the jurisdiction of the
family law master. Alternatively, the petitioner contends that this Court should
issue a writ of mandamus directing the circuit court to amend or set aside the
February 2, 2001 order, and that the circuit court should be enjoined from conducting
As set forth in the text, we grant the petitioner a writ
of prohibition on another ground. We therefore decline to address the grounds
raised in the petitioner's brief.