L., William III v. L., Cindy E.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 24120
___________
WILLIAM L., III,
Plaintiff Below, Appellant
v.
CINDY E.L.,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Herman G. Canady, Judge
Civil Action No. 91-C-4393
AFFIRMED
___________________________________________________
Submitted: September 16, 1997
Filed: October 3, 1997
Michael C.
Farber Cindy
E.L.
Sutton, West
Virginia Appellee
Attorney for the
Appellant Pro
Se
This Opinion was delivered PER CURIAM.
CHIEF JUSTICE WORKMAN concurs and reserves the right to file a
concurring opinion.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
"A trial judge should refuse to admit blood test evidence which would disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child." Syl. pt. 3, Michael K.T. v. Tina L.T., 182 W. Va. 399, 387 S.E.2d 866 (1989).
Per Curiam:See footnote 1
1
This action is
before this Court upon an appeal from the final order of the
Circuit Court of Kanawha County entered on October 1, 1996. The
issue before this Court arose out of the divorce action between
the appellant, William L., III,See footnote 2 2 and the appellee,
Cindy E. L., and concerns the paternity of a child born during
their marriage. Appellant contends that the circuit court erred
in adopting the recommendation of the family law master that
paternity test results would not be admitted into evidence and
that the presumption of paternity would stand due to the long
period of time during which the parties resided together as
husband and wife and during which the child's paternity was not
questioned.
This Court has
before it the petition for appeal, the record as designated by
the appellant,See footnote 3
3 the brief of appellant's counsel, and the brief of
appellee, pro se.
As discussed below, this Court is of the
opinion that the circuit court did not err in adopting the
recommendation of the family law master. Unfortunately, the
record is sparse and the parties assert conflicting facts.
Obviously, we are limited to the record before us. The result we
reach in this case may have been different if we had a more
complete record. Based upon this record, therefore, we affirm the
final order.
I
The parties were
married in 1984, and James L. was born in January 1987. The
parties separated in November 1991, and appellant filed for
divorce a month later. In his complaint, appellant alleged that
the paternity of James L. was uncertain. Based upon this
allegation, the parties were ordered to undergo blood testing to
determine the paternity of the child. On September 10, 1992, a
divorce decree was entered on the grounds of irreconcilable
differences. All issues other than the divorce were bifurcated
for determination at a later date.
Subsequently,
the blood test results, which indicated that appellant was not
the father of James L., were lodged in the court file.See footnote 4 4 Appellee
objected to any admission of the test results until an in camera
hearing could be conducted to determine whether their admittance
was proper. On March 31, 1993, an in camera hearing was held.
According to the family law master's order, appellee testified
that at the time of the birth of the child, she asked the
appellant to have blood tests and he refused. She stated that
blood tests were also discussed with appellant two years later,
and he again said no to testing. During this time, and until the
separation, appellant acted as a normal father towards James L.
and the parties' other children.
Appellee further
testified about the identity of the biological father of James L.
Appellee claimed that she last saw the biological father of James
L. four years ago, and she did not remember his last name.See footnote 5 5 According
to the family law master's order, appellant also testified at the
in camera hearing. He denied ever talking about the child's
paternity or mentioning blood tests until the divorce.
Following
the hearing, the family law master entered an order recommending
that the paternity test results not be admitted because appellant
had held himself out to be the father of James L. for a
sufficient period of time making evidence disproving paternity
not in the child's best interests. The recommendation was adopted
by the circuit court as reflected in the final order.
II
On numerous
occasions, this Court has set forth the applicable standard of
review for a recommended order of a family law master. We have
observed that such orders are reviewable by a circuit court
pursuant to statute, W. Va. Code, 48A- 4-16 [1997], W. Va. Code,
48A-4-20 [1993], and pursuant to this Court's Rules of Practice
and Procedure for Family Law. We also recently stated in syllabus
point 2 of Pearson v. Pearson, W. Va. , 488 S.E.2d (1997):
"A circuit court should review findings of fact made by a
family law master only under a clearly erroneous standard, and it
should review application of law to the facts under an abuse of
discretion standard." See also syl. pt. 1, Stephen L.H. v.
Sherry L.H., 195 W. Va. 384, 465 S.E.2d 841 (1995). In syllabus
point 3 of Pearson, we noted that "[u]nder 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 also
syl. pt. 3, Stephen L. H. Finally, we stated in syl. pt. 1 of
Pearson:
'In
reviewing challenges to findings made by a family law master that
were also adopted by a circuit court, a three-pronged standard of
review is applied. Under these circumstances, a final equitable
distribution order is reviewed under an abuse of discretion
standard; the underlying factual findings are reviewed under a
clearly erroneous standard; and questions of law and statutory
interpretation are subject to a de novo review.' Syl. Pt. 1,
Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995).
Appellant
contends that the paternity test results should have been
admitted because the appellee has fraudulently and intentionally
refused to identify the actual putative father, and therefore,
the decision unjustly enriches her and allows the biological
father to escape his financial obligation to the child. The issue
of whether paternity test results disproving paternity should be
admitted into evidence first came before this Court in the case
of Michael K.T. v. Tina L.T., 182 W. Va. 399, 387 S.E.2d 866
(1989). In syllabus point 3, this Court held:
A
trial judge should refuse to admit blood test evidence which
would disprove paternity when the individual attempting to
disestablish paternity has held himself out to be the father of
the child for a sufficient period of time such that disproof of
paternity would result in undeniable harm to the child.
See also syl. pt.1, State ex rel. David Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363. In so holding, we recognized that "the law favors the innocent child over
the putative father in certain circumstances." Id. at
872. Although we did not establish a finite period of time which
must pass before blood test evidence is admissible, we did state
that "absent evidence of fraudulent conduct which prevented
the putative father from questioning paternity, this Court will
not sanction the disputation of paternity through blood test
evidence if there has been more than a relatively brief passage
of time." Id.
As previously
mentioned in note 3, supra, a transcript of the proceedings
before the family law master is absent from the record. In the
past, this Court has emphasized that designation of the record is
important. State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994). "[W]e take as nonexisting all facts that
do not appear in the designated record and will ignore those
issues where the missing record is needed to give factual support
to the claim." Id. While the family law master's
recommendation does relate some of the testimony presented at the
in camera hearing, it does not lend factual support to the
appellant's allegations. Absent a sufficient record to justify
appellant's contentions, the family law master's findings of fact
were not clearly erroneous.See
footnote 6 6
We
note that the family law master found that appellant had assumed
the role of father to James L. for more than a relatively brief
passage of time as a normal father/child relationship existed for
four years. The family law master further determined that
appellant had also been on notice that he might not be the
biological father for approximately four years before he acted to
contest paternity. Although the appellant urges this Court to
expand our interpretation of Michael K.T., we find that the
decision in this case, as presented to this Court, preserves the
best interests of the child.
This Court hereby
orders that the final order of the Circuit Court of Kanawha
County be affirmed.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n. 4, 423 S.E.2d 600, 606 n. 4 (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 We follow our practice in domestic relations cases involving sensitive matters and use initials to identify the parties, rather than full names. In the matter of Jonathan P., 182 W. Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989).
Footnote: 3 3 The record before this Court reflects that appellant designated a
transcript of proceedings held before the family law master on March 31, 1993. However, the index page of the designated record submitted by the circuit clerk to this Court notes that said transcript "is not a part of the Court file." In addition, a post-it note attached to the same index page and signed by a deputy circuit clerk states that "requests for additional designation were not responded to."
Footnote: 4 4 The blood test results are not part of the record before this Court. However, it is undisputed by the parties and in the portion of the record that is before this Court that appellant is not the father of James L.
Footnote: 5 5 The family law master found the appellee's testimony to be "conflicting, often contradictory, first stating something, then denying it, and generally often not trustworthy."
Footnote: 6 6 At this point, we note that appellant also contends that the circuit court erred in failing to appoint a guardian ad litem to represent the child. The sparse record that is before this Court indicates that the error was not raised below. We have long since held that objections not made in the trial court and which are not jurisdictional in character will not be considered on appeal. See syl. pt. 1, State Road Commission v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964). Because it appears that this issue was raised for the first time on appeal, it is not properly before this Court. However, we do not abandon our position as set forth in syllabus point 4 of Michael K.T., and clarified in syllabus point 5 of Cleo A.E. v. Rickie Gene E., 190 W. Va. 543, 438 S.E.2d 886 (1993), that a guardian ad litem should be appointed to represent the interests of the minor child in actions seeking to disprove a child's paternity. In fact, we urge trial judges to be cognizant of the importance of appointing guardians ad litem in these cases.
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