Robert C. Stone, Jr., Esq.
Martinsburg, West Virginia
Attorney for the Silvers
Cynthia A. Gaither, Esq.
Martinsburg, West Virginia
Guardian ad Litem
Cinda L. Scales, Esq.
Martinsburg, West Virginia
Attorney for Clyde O. F., Jr.
JUSTICE MAYNARD delivered the Opinion of the Court.
1. 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Syllabus Point 10, State ex rel. Marockie v. Wagoner, 191 W.Va. 458, 446 S.E.2d 680 (1994).
2. A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty- eight [§§ 48-1-101 et seq.] of this code. W.Va. Code § 51-2A-2(d) (2001), in part.
3. Circuit courts are courts of general jurisdiction and have power to determine all controversies that can possibly be made the subject of civil actions.
4. Pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution, W.Va. Code § 51-2-2 (1978), and the Family Court statutes, W.Va. Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the original jurisdiction of the circuit courts in this State.
5. Where circuit courts have concurrent original jurisdiction with the West Virginia Supreme Court of Appeals over matters arising in family court, the preferred court of first resort is the circuit court.
In this original jurisdiction action, we are asked to determine whether circuit
courts have authority to issue writs of prohibition and writs of mandamus against family
court judges. The Circuit Court of Berkeley County determined that family courts are not
inferior to circuit courts and, therefore, circuit courts have no jurisdiction to entertain original
jurisdiction petitions filed against family court judges. We respectfully disagree and grant
the writ as requested.
Clyde F., Jr. is married to Deborah P.'s half-sister, Kimberly F., also known
as Kim F. On March 13, 2002, at a hearing before the family court judge, Mr. F.'s attorney
advised the court that Ms. P. approached Mr. F. some time after Melissa was born to tell him
that he was Melissa's father. Ms. P. requested money, purportedly to support her drug habit,
and told Mr. F. if he refused, she would tell Kim. He did not give her any money, and she
did indeed tell Kim. Mr. F.'s attorney stated that Mr. F. did not request paternity testing at
that time because he believed another individual who was also involved with Ms. P. had been
determined by DNA testing to be Melissa's father. During the hearing, Ms. P. admitted she
was in a relationship with Mr. R. at the time Melissa was conceived but paternity testing
proved he was not Melissa's father.
On September 7, 2001, Mr. F. filed a petition requesting paternity testing. The Silvers moved to intervene in the proceedings. The court granted them intervenor status. Cynthia A. Gaither was appointed to serve as guardian ad litem for Melissa. After hearing testimony from all of the parties involved, including the objections of Ms. P. and the Silvers, the family court judge entered an order on April 2, 2002 granting Mr. F.'s request for paternity testing. The court continued custodial responsibility of the children with the Silvers and granted Ms. P. visitation with the children.
The Silvers now contend that after the guardian ad litem filed her report, they
discovered Ms. Gaither and Mr. F. once had an attorney-client relationship involving a
domestic matter. On November 18, 2002, Ms. Gaither wrote a letter to the Silvers' attorney
admitting that she represented Mr. F. in a divorce proceeding in 1998 which was dismissed
due to reconciliation. She stated that after she was appointed to serve as guardian ad litem
for Melissa, she brought the matter to the court's attention. In her letter, she states that the
court felt that there was no conflict. In the report she filed with the family court as guardian
ad litem, she recommended that paternity testing take place. The Silvers contend that Ms.
Gaither should not have been appointed without there first being a full-scale hearing with
the Court and the parties[.]
In his response, Mr. F. alleges that the Silvers did not object to the appointment of the guardian ad litem until she began investigating child abuse allegations against Mr. Silver made by his children. Mr. F. attached two affidavits to his response wherein Michael Silver and Kim F. swear that their father physically abused them while they were growing up. Specifically, Michael Silver contends that his father cut a garden hose and whipped me to the point that I was cut deeply enough to bleed through the marks the hose made on my body. He alleges that his father tied him to a tree and beat him on a regular basis. He says that on several occasions, the injuries caused by the physical abuse were so severe that he was unable to attend school. He believes that any child left in Norman Silver's care is in danger of being physically abused. Kim F. contends that she was physically abused to the point that the court removed her from the home of Norman Silver when she was sixteen years old. She further contends that Deborah Silver was present when the abuse took place and did nothing to protect her.
Ms. Gaither filed a response stating that upon being appointed guardian ad
litem, she contacted both the family law master
(See footnote 2)
and Mr. F.'s attorney to inform them that she
had previously represented Mr. F. in a legal matter. She relates that the family law master
did not believe a conflict existed, and that neither Mr. F.'s attorney nor the Silvers objected
to the appointment. She states that the Silvers filed the petition for writ of prohibition after
she asked them to sign a release to allow me to investigate alleged child abuse charges
towards them. She simply requests that this Court issue a writ as it seems fit. On
December 10, 2002, this Court stayed the October 18, 2002 order of the family court which
determined that Mr. F. is Melissa's father and issued a rule to show cause against Judge
Wilkes commanding and directing the said respondent to show cause, if any he can, why
a writ of mandamus should not be awarded against [him.]
When we set aside the facts and myriad accusations presented in this case, the
simple question we are left with is whether circuit courts have original jurisdiction to
entertain petitions for writs of prohibition and writs of mandamus filed against family court
judges. If we determine that such jurisdiction rests with circuit courts, then we must grant
a writ of mandamus against Judge Wilkes directing him to hold a hearing on the writ of
prohibition which was filed by the Silvers in his court. The standard for granting a writ of
mandamus is stated as follows:
A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Syllabus Point 10, State ex rel. Marockie v. Wagoner, 191 W.Va. 458, 446 S.E.2d 680 (1994).
Pursuant to Chapter 51 Article 2A of the West Virginia Code, titled Family
Courts, our current family court system became operable on January 1, 2002. W.Va. Code
(See footnote 3)
Unlike appeals from family court orders, the Family Court statutes are
silent regarding which court has original jurisdiction over family court judges. The statutes
specifically provide that petitions for appeal must be filed in circuit court, W.Va. Code § 51-
2A-11(a) (2001), unless both of the parties file . . . a notice of intent to file an appeal from
the final order of the family court directly to the supreme court of appeals and to waive their
right to file a petition for appeal with the circuit court[.] W.Va. Code § 51-2A-15(a) (2001).
Also, if a stay of proceedings is sought by a party pending an appeal and the request is denied
by a family court judge, the party may file a motion for a stay of proceedings in circuit court.
W.Va. Code § 51-2A-12(b) (2001). Original jurisdiction need not be included in the Family
Court statutes because the topic is covered elsewhere.
The Constitution of West Virginia provides that:
Circuit courts shall have control of all proceedings before magistrate courts by mandamus, prohibition and certiorari.
Circuit courts shall have original and general jurisdiction of all civil cases at law where the value or amount in controversy, exclusive of interest and costs, exceeds one hundred dollars unless such value or amount is increased by the legislature; of all civil cases in equity; of proceedings in habeas corpus, mandamus, quo warranto, prohibition and certiorari; and of all crimes and misdemeanors.
W.Va. Const. art. VIII, § 6, in part. W.Va. Code § 51-2-2 (1978) similarly states:
The circuit court shall have supervision and control of all
proceedings before magistrates, by mandamus, prohibition and
certiorari. They shall, except in cases confined exclusively by
the Constitution to some other tribunal, have original and
general jurisdiction of all matters at law where the amount in
controversy, exclusive of interest, exceeds three hundred dollars;
of all cases of habeas corpus, mandamus, quo warranto and
Important to this case, the constitution and the statute both state that circuit courts have original jurisdiction of all cases of prohibition. The circuit judge reasoned that family courts are not inferior to circuit courts and circuit courts, therefore, have no jurisdiction to entertain original jurisdiction actions in prohibition and mandamus filed against family courts.
The Family Court statutes describe our system of family courts in the following
A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight [§§ 48-1-101 et seq.] of this code. A family court may not exercise the powers given courts of record in section one [§ 51-5-1], article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a judge of any court of record or a judge of a court of record as the terms are defined and used in article [§§ 51-9-1 et seq.] nine of this chapter.
W.Va. Code § 51-2A-2(d) (2001). Limited jurisdiction is defined as [j]urisdiction that is confined to a particular type of case or that may be exercised only under statutory limits and prescriptions. Black's Law Dictionary 856 (7th ed. 1999). This is in contrast to the broad jurisdiction exercised by circuit courts. Circuit courts are courts of general jurisdiction and have power to determine all controversies that can possibly be made the subject of civil actions. See 20 Am. Jur. 2d Courts § 68 (1995) (A court of general jurisdiction has power to determine all controversies that can possibly be made the subject of civil actions.) .
In light of the foregoing, we believe that family courts are inferior to circuit courts, and, accordingly, so hold. As is demonstrated above, circuit courts derive their original jurisdiction from both the Constitution of West Virginia and from the Legislature. Moreover, the Legislature specifically granted circuit courts appellate jurisdiction over family courts. Also, circuit courts have authority to stay family court orders pending appeal to circuit court. If family courts were not inferior to circuit courts, then all appeals and motions for stay of proceedings would necessarily be directed to this Court. It is not logical that the Legislature would give circuit courts appellant jurisdiction over family courts, which the Legislature clearly did, and then abrogate the circuit court's plain authority to consider petitions for writs of prohibition and mandamus. We, therefore, hold that pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution, W.Va. Code § 51-2-2 (1978), and the Family Court statutes, W.Va. Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the original jurisdiction of the circuit courts in this State.
At the same time, we recognize that the original jurisdiction exercised by circuit courts is concurrent with the original jurisdiction exercised by this Court. This Court's original jurisdiction is constitutional. Article VIII, Section 3 of the West Virginia Constitution states, in part, The supreme court of appeals shall have original jurisdiction of proceedings in habeas corpus, mandamus, prohibition and certiorari. In our recent opinion, State ex rel. Laura R. v. Jackson, ___ W.Va. ___, ___ S.E.2d ___, slip op. at 5 (No. 30969, April 18, 2003), we recognized this Court's original jurisdiction over family court matters by stating, This Court has original jurisdiction in prohibition [and mandamus] proceedings pursuant to Art. VIII, Sec. 3, of The Constitution of West Virginia. In Laura R., we granted the petitioner relief in prohibition and remanded the case to the family court judge for entry of an order and further proceedings.
Where circuit courts have concurrent original jurisdiction with the West Virginia Supreme Court of Appeals over matters arising in family court, the preferred court of first resort is the circuit court. Only after a party seeks and fails to receive relief from a family court order in circuit court may that party then petition this Court for relief. In the case before us, the Silvers have no other adequate remedy. There is no final order to appeal. We cannot tell from the exhibits attached to the petition if it is in Melissa's best interest to know who her biological father is when her mother's husband has been presumed to be her father up to this point. If the order finding Mr. F. to be her father is enforced, we do not know if custody should be awarded to him when one takes into consideration the circumstances under which Melissa was born. The circuit court must hold a hearing in order to determine if a writ of prohibition should issue against the family court judge which would preclude the enforcement of the order wherein Mr. F. was determined to be the biological father of Melissa and the custody of Melissa with the Silvers was nullified.
It has been brought to our attention in this case and we are deeply concerned
about the guardian ad litem's past legal relationship with Mr. F. The family court judge must
determine whether or not a different attorney should be appointed to represent Melissa in
future proceedings. Given the allegations which have surfaced during the pendency of this
action by the adult individuals involved in these childrens' lives, we urge the family court
and the circuit court to find a safe haven for these children.
For the foregoing reasons, the writ of mandamus prayed for by the Silvers is granted. The Circuit Court of Berkeley County is directed to hold a hearing on the petition for writ of prohibition which was filed by the Silvers in an effort to enjoin the family court judge from enforcing the paternity and custody orders.