Kessel v. Leavitt

Ray Woodruff KESSEL and Miller Below, Kessel, Appellees, Plaintiffs LEAVITT,

David Keene Anne Co Gilmore Conaty,

naty, Eleanor Wolfe Thomas J.

Conaty, Conaty, and Brian Defen P. Below,

dants Conaty,

Anne Eleanor Gilmore Wolfe Co

naty, Conaty Thomas and Brian P. J. Co

naty, Below, Appellants. Defendants

No. 23557. Appeals

Supreme Court of Virginia.

West Submitted Jan. 1997. Workman, J., separate opinion filed con- July Decided curring part, dissenting part.

103

105

108 Wilson, Masters, plaintiff a claim for fraud or tortious Paula L. Mas- to state Marvin W. Charleston, grant- Virginia, interference which relief can be Taylor, West ters & ed; Appellees. inappropriateness of certain in- Attorneys for the structions; and the excessiveness of the Jackson, Simmons, DiTrapano & Lonnie C. addition, damages appellee awards. Charleston, Virginia, Attorney for West herein, below, plaintiff Ray Miller Kessel Appellants. cross-appeals circuit court’s decision to California, Stocks, Diego, At- K. San Jams direct a verdict in favor defendants Curiae, Academy torney for Amicus of Cali- respect alleging to his claims that the Lawyers. Adoption fornia grandparental defendants interfered with his Dunn, O’Shea, Gleason, Brendon C. Walsh relationship Conaty with the child of Anne York, O’Shea, Attorney Albany, & New Upon and John Kessel. a review of the Curiae, Amicus The National Council evidence, parties’ arguments, the record Adoption. authorities, the relevant we affirm the deci- Wendell, The American Public County. Mitchell sion of the Circuit Court of Cabell Association, DC, Washington, Legal Welfare of Ami-

Consultant for Office Secretariat I. Curiae, Administrators of cus Association of Compact the Interstate on the Placement FACTUAL AND PROCEDURAL Children. HISTORY Gorda, Florida, Ryan, Jon R. Punta Presi- presented jury The evidence reveals Curiae, Organiza- dent of Amicus National following Defendant Anne facts. Gilmore Adoption tion for Birthfathers and Reform. Conaty plaintiff John [hereinafter Anne] Woodruff Kessel were ro- [hereinafter John] DAVIS, Chief Justice:1 mantically years. involved for a number of herein, appellants be- The and defendants November, 1990, they broke off their tu- low, Leavitt, Anne David Keene Gilmore Co- Shortly multuous romance. after the break- naty, Conaty, Thomas Co- Eleanor Wolfe J. up, pregnant, Anne discovered she was naty, Conaty,2 appeal and Brian P. from a approximate conception date of of October jury in the December verdict Circuit pregnan- 1990. She informed John of the County in Court of Cabell returned favor of December, briefly cy They in were 1990.3 below, herein, appellee plaintiff John engaged January, op- in 1991. While John Claiming Kessel. that the defen- Woodruff child, posed any adoption their unborn fraudulently placing in dants had acted Anne wanted either to raise their unborn Conaty for child of Anne and John Kessel child, help, herself or with or to John’s adoption they tortiously and that had inter- adoption. place their child for unborn parental rights in fered with John Kessel’s that, son, January, in she jury compensatory his awarded Anne testified damages punitive damages of million became afraid of John and feared for her $2 safety appeal The defendants after the deterioration of their rela- million. $5.85 errors, tionship. citing, among these other She decided to leave her residence verdicts jurisdiction Virginia, personal Huntington, and take a circuit court’s lack of West Leavitt; job.4 failure of the leave of absence from her Anne visited over defendant By January appeal entered bond. For further discussion of dis- 1. administrative order appeal, note 20 and this Court recalled to active service retired missal of Leavitt’s see infra McHugh par- Justice Thomas E. to continue his Section II.A. ticipation and decision of consideration appeal. dispute 3. Neither Anne nor John Anne’s pregnancy relationship their or resulted from Leavitt, they biological parents child. are the of this David who was named as a Keene action, underlying defendant to the unsuccessful- ly pregnancy, was an attempted appeal adverse verdict 4. At the time of her Anne elementary During against school teacher. this same rendered him. This Court dismissed his time, residency fulfilling appeal post requested period his he John was when refused 1,1991, May unborn child. John’s approximately for two Anne’s On Iowa a friend in weeks, attorney her in Tennes- sent a letter to David Lockwood stayed with brothers weeks, Lockwood], Huntington, and traveled to her six West [hereinafter see about Carolina, in North where she Virginia, attorney relatives’ home who counsel be- John’s approximately five weeks. represented remained for lieved Anne. This letter indicat- Eleanor Wolfe parents, Anne’s defendant to reconcile with Anne and ed John’s desire Conaty] and defen- Conaty Mrs. from, [hereinafter his intention to withhold his consent Conaty Dr. Co- [hereinafter dant Thomas J. oppose, attempt Anne to otherwise Carolina, naty] her in North and dis- visited adoption. place their unborn child for Lock- possibility placing the unborn cussed the wood, repre- who claimed that he was not Conatys adoption. were child While time, senting gave Anne at this the letter to April, Mrs. Cona- North Carolina Conaty Bri- [hereinafter defendant Brian P. for a ty newspaper advertisement Cali- saw an], brother, Hunting- Anne’s who is also a attorney. Upon contacting adoption fornia ton, Virginia, attorney. Brian then West office, Conaty attorney’s Mrs. was re- forwarded this letter to Leavitt. adoption attor- to another California ferred June John filed an inverse On ney, [herein- David Keene Leavitt defendant paternity action6 in the Circuit Court Conaty telephoned Mrs. then Leavitt]. after County, Virginia [hereinafter West Cabell Leavitt, himself, Leavitt and either 1”], request- case he “West which Conaty wife, adoption that an informed Mrs. paternity court determination of and an ed a accomplished child could be of Anne’s unborn injunction prohibit plac- order to Anne from having notify John or California without adoption pa- until their unborn child for thereafter, signature. Shortly obtain his ternity attempt- had been established. John regarding possi- spoke Anne with Leavitt copy petition serve Anne with a of this ed to bility adop- child for placing her unborn home, at Brian’s her last residence in West tion.5 home; Virginia; parents’ her and Lock- May, journeyed In Anne to Minneso- 21, 1991, Finally, wood’s office. on June 20, 1991, May stay ta with her aunt. On copy Lockwood faxed of John’s inverse Leavitt Anne informed she wished to paternity petition to Leavitt. place adoption. her unborn child for Leavitt informed Anne she could deliver her child hearing parte The circuit court held an ex choosing. place of her Anne decided to 26, 1991, request to consider on June John’s California, attorney travel to where her was injunctive relief. Lockwood attended the located, deliver her child in that and to state. hearing judge circuit he to inform the June, 1991, early In Anne traveled to West represent judge did not Anne. circuit The California, Hollywood, where she and her proceedings, excused Lockwood from the mother, Conaty, until Mrs. remained leaving only present John and his at counsel July, birth of Anne’s child 1991. hearing. testimony, Following John’s judge tempo- During Virgi- parte the circuit entered an ex Anne’s absence from West 26, 1991, nia, rary injunction order, sought legal regarding advice dated June parental rights biological “prohibiting placing [Anne] as the father of her unborn Pierce, (1971); requirements completion special- Adoption Cal.App.3d for the of his In re 316, 318, training. Cal.Rptr. ized medical 104-05 See 72, 73-74, Buchberger, also Hixon v. 306 Md. spoke 5. Anne testified that she first with Leavitt (1986) (describing A.2d lawsuit initiated while she was in North Carolina. by putative paternity father to establish of child action”). paternily as "reverse The unusual ar- atypical phrase paternity 6. The "inverse action” rangement parties paternity to an inverse paternity proceeding by a refers to a initiated action is in contrast to the more common scenar- is, putative father to he determine whether mother, biological io in which a child, a nonmarital fact, biological father of a nonmarital child. representative agency aor of a state initi- proceeding, biological In such a mother proceeding against putative biological ates a generally the child is named as defendant to father, See, Pierce, thereby naming e.g., Adoption as a defendant to the him the action. In re 244, 247, Cal.App.3d Cal.Rptr. action.

Ill through any Oregon concerning adoption by anyone adoptions regis- and the child for church, group, attorney, private biological agency, Consequently, tration of fathers.8 paternity Oregon couple can be [John] household until the withdrew their interstate judge application adopt Following or refuted.” The also de- Anne’s child. established placement creed that Anne should be served with obstacle to of Anne’s un- child, paternity petition temporary subsequently in- born Leavitt inverse located a Alberta, Canada, junction by publication. couple in order Brian was whom he felt personally paternity prospective adoptive par- with the inverse would served be suitable temporary injunction Accordingly, petition appro- order on ents. Anne executed the However, 16, 1991, July priate proposed June 1991. on documents to effectuate this rejecting placement. Brian an service on filed affidavit longer

behalf of Anne because she no lived 24, 1991, July baby On Anne delivered a he not her his residence because was boy Baby Boy Conaty] [hereinafter at Ce- attorney. Angeles, dars-Sinai Medical Center in Los 25,1991, approximately July At the same time as John California.9 On Anne executed pursuing paternity remaining necessary his inverse action in documents Virginia, continuing placement West Anne was with her of her child with the Canadian place adoption. plans couple. complications, her unborn child for Due to medical June, 1991, baby hospital Leavitt informed Anne that he was not released from the until Oregon couple July date, had located an who wished to On Canadian adopt couple Baby Boy child at birth.7 Anne executed returned to Canada with her Also, Conaty. July 26, 1991, requisite numerous documents to the con- on the last including templated placement, published parte temporary interstate notice of the ex compact request. injunction placement published Hunting- interstate On order was in a ton, thereby papers Virginia, newspaper, June Leavitt sent these com- West placement pleting by publication the state coordinator for the state service on Anne of temporary injunction of California who then forwarded the docu- both the order and the Oregon requesting per- paternity petition, publish- to the state of inverse ments which was conjunction injunction placement. to consummate the ed in mission order. birth, Following the child’s Anne traveled to receiving copy After of John’s inverse England where she visited with her sister Leavitt, paternity petition, approximately on Huntington, until she returned West Vir- 1, 1991, July copy petition faxed a of the November, ginia, in 1991. prospective adoptive parents counsel for the Upon Virgi- Baby Boy Oregon. learning Shortly in of the West after the birth of Cona- litigation, Oregon couple’s attorney ty, and nia John learned of child’s birth Conaty recently suggested pursuit adoption may that Mrs. had that this discovered Having listing risky upon Angeles. in the state of to Los seen a based laws flown (1995) (Main Vol.1997)] (defin- § initial contact Stat. While Leavitt established the 109.096 Oregon adoptive parents, requirements); § prospective notice Or.Rev.Stat. 109.225 with the (1991) (Main Vol.1997) (describing participated, degree, procedures also to some in the Anne actions). Leavitt, family. registration paternity selection of this for however, opposed presumably such notification because notice could have led to John's attorney notify Oregon 8. The wanted to John of registration paternity of his inverse action in adoption arrangements between Anne and Oregon difficulty locating and the attendant Oregon couple though the have, even John did not permanent adoptive placement Anne’s un- law, then-existing Oregon under an uncon- born child. adoptive right ditional either to notice of Anne’s placement of their child or to withhold his con- hospital using adoption. registered to this See Or.Rev.Stat. 9.Anne at the the name sent (1975) (Act, Oregon § used an Laws "Rita Wiseman”. Anne testified that she 109.092 2)§ § Or.Rev.Stat. 109.092 alias because she was afraid of John and desired [current ch. Vol.1997)] (Main (regarding privacy. on consent to to maintain her Leavitt’s client file married); adoption by Leavitt Anne con- mother who is not Or. Anne demonstrates that and (1983) (Act, Oregon templated during § her use of this alias one of their Rev.Stat. 109.096 39) ch. Or.Rev. initial consultations. [current Laws Thereafter, Conaty appeared Huntington, Dr. and Mrs. yellow pages in the West in Bev- Virginia, telephone depositions book for Leavitt their and at second scheduled California,10 Hills, telephoned erly contempt charges. John purged of the themselves hopes that he could assist with Leavitt in the they Both of defendants admitted that these in- Leavitt paternity action. his inverse had been California with Anne at the time his case he was familiar with formed John delivery placement adoptive of her and August it. to discuss On and was unable Baby Boy Conaty acknowledged and that she telephoned attorney Leavitt and John’s Virgi- accompanied trip them on had their temporary in- parte him of the ex informed They they Beach. nia further indicated junction then followed the tele- order. She Friday had last seen Anne on the immediate- en- phone call with a letter to Leavitt and ly preceding deposition testimony their when paternity petition of the inverse copy closed a they Lexington, her off’ at a Ken- “let[ ] injunction temporary order. tucky, upon Virginia motel their return from August, de- Also in John’s counsel Conaty additionally Beach. Mrs. testified Conaty. posed Brian Dr. and Mrs. Bri- airplane that she knew of three tickets to attorney-client initially privi- asserted the London, England, having purchased been lege, prior representation of based herself, Anne, Conaty, Dr. and that she adoption Anne matters unrelated to April, had known since of these travel Boy Conaty, questioning Baby response arrangements. She stated that she and her the birth about his sister’s whereabouts and planned during husband to leave for London subsequent adoptive placement of her following depositions, week their prohibited child. After the circuit court Bri- they flight, were to see Anne before their but asserting privilege no an from where present she did know Anne’s where- attorney-client consequently relationship, and sum, Conaty abouts. both Dr. and Mrs. existed, attorney-client privilege, no he testi- having any knowledge denied of the ultimate deposition. During fied a second his sec- adoptive placement Baby Boy Conaty, any deposition, having ond Brian denied daughter, location of their or when Anne knowledge of his child or sister’s newborn expected Huntington, could be to return to whereabouts,11 despite her his earlier role Virginia. West monitoring filings Circuit Court County Cabell to locate lawsuits filed circuit court On October en- against seeking custody Anne judgment in tered a default favor of John parties’ child. action, paternity his inverse “West 1,” case as a result of Anne’s failure to attempted John’s counsel likewise to de- appear. The court “ORDERED that John pose Conaty garner Dr. and Mrs. informa- legally pursu- Kessel is determined Woodruff Upon receiving tion his infant son. about Virginia ant West Code Section 48A-6- subpoenas appear deposi- their for their 1(c) to be the natural father of the infant tions, Conaty and Brian Dr. Mrs. asked what Conaty child born to Anne on or Gilmore required part. Believing action was on their July about with all the 1991[sic] subpoenas complaint to be a in a lawsuit Later, obligations flowing John, therefrom.” anticipated by filed which had been 17, 1991, lawsuit, in Brian, on October John filed a parents he informed his to continue conjunction Virginia with his West inverse plans Virginia with their to vacation in action, Beach, paternity Virginia. Superior in the Consequently, neither Dr. Court Conaty appeared deposi- Angeles County for Los [hereinaf- nor Mrs. for their California tions, purpose in 1”]. and both of them were held con- ter “California case The main tempt nonappearance. litigation for their the California was to obtain the placed Presumably, sought regard- 10. Leavitt testified that he an advertise- information Huntington yellow telephone ment in the book Anne's location in order to obtain informa- advertisement, once, pages only regarding tion in 1991. In this from her whereabouts of arrangements concerning Baby Boy represented provided legal pre-adoptive Leavitt that he ser- adoption Conaty. vices in the field of law.

H3 January depositions of Leavitt and Anne’s California case 1”. On the circuit judge ordered Anne to authorize physician had delivered her child. the release who legal of her and medical in records Califor- November, 1991, In John’s coun- California initially sign nia. She refused to the authori- deposed sel Leavitt who asserted the attor- zations. Anne later executed releases ney-client privilege response question- possible contempt when confronted with ing.12 Following deposition, Leavitt charges. Upon signing court the authoriza- message suggesting to Brian faxed tions, Anne pro- added notation “under experienced litigation retain an attor- Anne test.” John notified the circuit court of the ney protect in California to her interests. protest language, again and Anne was or- Leavitt also warned that John and his coun- releases, sign dered to this time without prevented learning any sel should “be adding language. signing After the re- they already more than know for another anew, immediately prepared leases Anne possible.”13 if Brian that he month testified renunciation of her authorization and faxed having message. not recall seen did Fol- her renunciation to Leavitt. re- She further lowing attorney- Leavitt’s assertion of quested Leavitt to forward the renunciation privilege, client counsel John’s California Hospital. to Cedars-Sinai The circuit court compel filed a motion to him to answer found Anne’s in contempt renunciations to be deposition inquiries. By order dated Janu- again required sign of court and her to new ary superior approved ultimately releases. Anne executed the re- privilege Leavitt’s earlier assertion of the leases. plaintiffs’ and denied the motion. No further Upon receiving Anne’s California medical proceedings were held in “California ease 1”. records, John learned the whereabouts Additionally, approximately on November prospective adoptive couple. Canadian On John filed civil action approximately 3,1992, John, by March Cana- Superior Ange- Court of California for Los counsel, claim, dian filed a statement of re- County [hereinafter 2”]. les “California case questing guardianship, paternity and a action case, Anne, naming In this as defendants Alberta, Queen’s in the Court Bench of Leavitt, individuals, and other John assert- Canada, Calgary. Judicial District of Fol- fraud, conspiracy, ed claims for intentional lowing hearing, the Canadian trial court distress, negligent infliction of emotional in- entered an order dated June dis- distress, fliction of emotional and child ab- claims, missing finding John’s consent to duction. The named a de- defendants filed unnecessary, granting the Canadian asserting murrer that John had failed to couple’s petition adoption.14 John testi- January state a cause of action. On appeal fied that he did not this order or request John’s counsel filed a to dis- pursue legal further otherwise remedies miss this case. No further action was tak- Canada because of indications that he would 2”. en “California case required post significant been bond January, adoptive couple’s expenses John continued with his reimburse Virginia litigation if had West “West he been unsuccessful. Maravel, Intercountry

12. Defendant Leavitt testified that the child. See Alexandra California governing attorneys required of Evidence Rules Adoption Flight and the Unwed Fathers’ affirmatively attorney-client him to assert the Rights: Right Anyway?, Whose Is It 48 S.C. privilege in this situation. See Cal. Evid.Code (1997). Once L.Rev. 522-23 this six-month (1965) (Main Vol.1995) (defining § 955 situations expired, very period had it would be difficult to attorney required attorney- which is to claim persuade judiciary the Canadian to remove the privilege). client prospective adoptive child from the home. See id. portion 13. The concealment of the note arose attempt from Leavitt’s concern that John would 26, 1991, August Queen’s the 14.On Court adoption. thwart the to to Canadian Pursuant Alberta, Alberta, Canada, Calgary, Judicial Bench District the law of as it existed in guardians parental rights ap- legal terminated and once a child had resided with had Anne’s months, uninterrupted period couple legal of six the Alber- proved the Canadian as the sole approve ta courts were almost certain to the guardians Baby Boy Conaty. legal guardians adopt petition (ICPC) Custody 22, 1992, a civil and the Uniform Child July John filed dren Finally, on (UCCJA), right of a County, Act the Jurisdiction Court Cabell action the Circuit child, custody of the parent “West Virginia [hereinafter West his/her pro- subject defendants’ intent to violate John’s due 2”], appeal. of this is the case which father, equal protection rights, and the matter, Ray cess and and his John Kessel],15 “contempt meaning of of court” and the con- Dr. as- [hereinafter Miller Kessel standards; legal cir- Anne, sideration of ethics the Dr. and Mrs. against serted claims fraud, improperly the Brian, cuit court determined Leavitt for civil Conaty, and attorney-client privilege between defendants paren- conspiracy, interference with tortious extinguished due outrage, Leavitt and Anne had been relationship, violation of constitu- tal privi- exception the or fraud to this tortious interference with crime rights, and tional jury excessive com- grandparental lege; and the awarded relation- deprivation and November, 1995, damages. In addi- pensatory punitive Following a trial ship. tion, cross-appeals complains Dr. Kessel returned a jury, the on December granted improperly that the circuit court the defendants on the issues against verdict the a directed verdict as to his claims interference17. The defendants tortious of fraud16 and regarding grandparental rights. compensatory jury awarded John further punitive damages million18 and dam- of $2 During of the issues our resolution verdicts, From these ages of million19. $5.85 by parties, previously raised the which were appeal this Court.20 the defendants by jury rendering the verdict determined the case, guided by in this we will be the detailed II. appellate applicable to standards of review “ jury appellate ‘An court will not verdicts. AND OF ISSUES DISCUSSION jury, aside the verdict of a founded on set OF REVIEW STANDARDS conflicting testimony approved by the Court, appeal the defendants On court, against trial unless the verdict is following assign the errors: the circuit court plain preponderance Point evidence.’ jurisdiction personal over lacked defendant Bartlett, 2, Syllabus, Stephens v. Leavitt; failed to state a claim 421[, Walk ].” S.E. granted which relief can be as to his causes Co., Monongahela er v. Power of action for fraud and tortious interference (1963). Additionally, 131 S.E.2d 736 relationship; parental the circuit court jury determining erroneously as to the whether the verdict of [i]n instructed evidence, supported by every validity parte temporary the ex is and effect of inference, order, fairly injunction applicability legitimate In- reasonable arising from the evidence in favor of the Compact terstate on Placement of Chil- below, 15. jury. During proceedings subsequently amend- the course of the The circuit award, compensatory damages granted ed order the circuit court a directed verdict in order, respect Kes- dated December 1995. In this favor of the defendants Dr. grandparen- plaintiffs determined that the ex- sel’s claims for interference with his circuit court $116,687.47 Accordingly, actually rights. purposes penses opposed tal for the of accu were as reference, $150,000.00 Thus, racy "plaintiff” jury. and ease of the term awarded award, amended, solely compensatory damages will be used to to John. hereinafter refer million, approximately $1.97 exclusive of applicable interest which has accrued on this jury apportioned the fault the defen- The judgment. regard to Leavitt dants with fraud as follows: fault; fault; fault; Brian Anne Dr. 55% Conaty 25% 10% fault; Conaty and Mrs. fault. 5% 5% 19. See Section IX.E.2. for a discussion of infra damages jury. punitive awarded juiy assigned following percentages 17. The Leavitt fault for the tortious interference claim: Although requested defendant Leavitt and was fault; Dr, fault; fault; Anne Brian 25% 30% 35% Court, appeal appeal granted leave to this fault; Conaty Conaty and Mrs. fault. 2% 8% post failure to herein was dismissed due to his appeal required supra bond of him. See note specific II.A. treatment of 18. See II.E.l. for the 2 and Section for further Section infra infra damages appeal. compensatory calculated this Court’s dismissal of Leavitt's amounts of

H5 returned, step determining the verdict The second involves party for whom considered, facts, whether the and those defendant’s contacts with the must be which satisfy jury might properly process. find under the forum state federal due evidence, true. must be assumed as First, the defendants concede that even if the Syl. pt. id. “transacting amounted advertisement in contemplated business” this State as Furthermore, par our review 56-3-33(a)(l) (1984) § (Repl.Vol. W. Va.Code challenging specific assignments ties’ of error 1997), the causes of action asserted John legal rulings the circuit court will de required by did not from this arise contact as See, e.g., Syl. pt. in part, novo. Walker 56-3-33(b) (1984) (Repl.Vol. W. Va.Code Comm’n, Virginia Ethics 201 W.Va. West 1997), telephone because advertisement (“Questions of law S.E.2d Conaty did not factor into the decision of the review.”); subject are to a de novo defendants to communicate with defendant A.L., Chrystal R.M. v. Charlie Leavitt. (1995) (“Where 138, 459 the issue clearly appeal on an from the circuit court is Likewise, the defendants maintain that the involving question interpreta of law or second element of the Abbott test cannot be statute, apply

tion of a a de novo standard juris satisfied personal because assertion of review.”). parties’ turn now to the We diction protections over Leavitt offends the contentions. process. of federal Citing due Helicopteros Colombia, Hall, Nacionales de S.A. v. A. 408, 416, U.S. 104 S.Ct. (requiring L.Ed.2d nonresi Personal Jurisdiction over sys dent defendant to have “continuous and Leavitt Defendant general tematic business contacts” with fo Anne, defendants, The Dr. and Mrs. prerequisite rum finding personal state as Brian, Conaty, assign first as error the jurisdiction); Syl. pt. part, in Pries v. per circuit court’s determination that it had Watt, 410 S.E.2d 285 jurisdiction over defendant sonal Leavitt. (focusing upon whether nonresident defen manner, that, represent this defendants purposefully dant “has acted to obtain bene below, during proceedings the circuit privileges forum in fits state” de personal jurisdiction court found it had over termining personal júrisdiction whether Leavitt as result of his one-time advertise proper). yellow pages Huntington, ment in the responds that the circuit court’s as- Virginia, telephone directory. The de West jurisdiction personal over fendants, however, sertion defen- maintain that one proper dant Leavitt was because the record time advertisement does not constitute con had more evidence demonstrates that Leavitt per tacts with this to confer State sufficient Virginia contacts than his one- with West jurisdiction. sonal telephone Among time these advertisement. They argue further that Leavitt’s activities contacts, di- John cites defendant Leavitt’s satisfy requirements do not of the two- rection of the activities of Lockwood and jurisdictional part Syllabus enunciated in test respect defendant Brian with to the various Owens-Corning Fiberg Point 5 of Abbott v. proceedings un- West Corp., las S.E.2d 285 action, derlying paternity inverse and Leav- (1994): itt’s communications with various defendants two-step A approach court must use a encouraging cooperation expediting their analyzing jurisdic- personal when whether adoption. the Canadian foreign corporation tion exists over a Additionally, step other nonresident. The first involves John contends that the two determining the defendant’s ac- factors of the Abbott test are satisfied whether First, satisfy jurisdiction long-arm personal respect tions our stat- case. Va.Code, statute, business, utes set forth 31-1-15 Leavitt transacted con- W. ^[1984] W. Va.Code, 56-3-33 [1984], tracted to supply services, and caused tor- diction, Leavitt, longer in is no before this injury by acts and omissions this tious Lozinski, party appeal. At Lozinski v. 185 Court as instant Citing State. (1991) 558, 562, appeal the time this case was submitted on to “ Court, including any requested act’ as act this defendant Leavitt was (defining ‘tortious in post state which involved to a million bond the Circuit Court in the $7 committed County, by in duty another and resulted of Cabell order of this Court breach of 16,1997, damages”). January dated which bond was later ascertainable million, pursuant to our reduced order $1.1 jur Second, personal maintains John February having 1997. No bond been appropriate under Leavitt is isdiction over posted, appeal Court dismissed Leavitt’s this analysis. Citing In process the federal due Thereafter, by order dated March Washington, v. 326 U.S. Co. ternational Shoe petition Leavitt filed a for writ of certiorari 154, 158, L.Ed. 66 S.Ct. Supreme in the United Court to con States (1945) respect finding (requiring, By appeal. our dismissal of his decision test jurisdiction, minimum personal “certain con 6, 1997, the dated October United States maintenance of the ... that the tacts Supreme petition Court denied Leavitt’s ‘traditional notions of suit does not offend — Kessel, ” writ of certiorari. See Leavitt v. (citations justice’ play fair and substantial -, U.S. 118 S.Ct. 139 L.Ed.2d 192 omitted)); Ry. Maynard, S. Co. Norfolk 113, 116, 437 S.E.2d (1993) By dismissing appeal, Leavitt’s we effec- (recognizing that critical ele “[t]he affirmed, tively only, as to Leavitt those determining minimum contacts is ment for activity rulings of the lower court which he had at- rather ‘the not the volume of but ” (citation tempted challenge by way activity’ appeal. This quality and nature of Watt, authority omitted)); party’s appeal W.Va. at Court’s dismiss Pries satisfy upon require- failure to a bond (suggesting 410 S.E.2d at 288 consideration his/her 6(d) ment is set forth Rule of West of various factors to aid court’s assessment Virginia Appellate jurisdiction). Employing Rules of Procedure: personal these considerations, urges process due John In civil relief in ... cases available Leavitt, purposefully availed himself of the Supreme [regarding Court under this rule benefits of this State because he advertised stay proceedings pending appeal] may accepted knowing Anne’s her here and case upon filing be conditioned of a bond or addition, connection to this State. In appropriate security in other the circuit hearing State has a substantial interest court, in such amount and such condi- given alleged disregard for this case Leavitt’s stay granting tions the court as feels is its court’s orders John’s proper protection for the of the adverse biological Lastly, judicial economy father. Va.Code, party. provisions The' of W. 58- jurisdiction State, supports personal 5-14, applicable_ are Failure to exe- because, claims, as- Leavitt was not grounds cute such bond unduly by burdened the West trial appeal. dismissal attorney employed the as the since he same added). (Emphasis See also W. Va.Code only once other defendants traveled (“When (Repl.Vol.1997) § 58-5-14 re- purposes. Citing this State for trial S.R. v. court, quired by appeal ... shall not Fairmont, 880, 886-87, City given by appel- take effect until bond is (permitting court to them, petitioners, lants or one of or some consider interstate nature of suit deter person, penalty in a other to be fixed mining jurisdictional questions). judge appeal court or or in which the ... condition[.]”); resolving the cir- ... with issue whether is allowed W. Va. (“An properly personal juris- (Repl.Vol.1997) cuit court exercised 58-5-16 Code Leavitt, appeal judg- ... ... a final diction over defendant we are faced allowed from ment, unique awith rather situation. The defen- decree or order shall be dismissed injuriously appears dant who most whenever it that two months have affected juris- finding personal elapsed appeal when the ... circuit court’s since the date

117 (1958) (“Jurisdiction given person is as is S.E.2d 901 granted before such bond appeal may by parties ... given before the be conferred consent of the required to be effect”). Legg, generally jurisdiction State v. may See or the lack such be takes of 407, 215, added)).21 401, 219 151 (emphasis W.Va. S.E.2d Because 151 ivaived.” de- (1966) (holding provisions of Va.Code W. right fendant Leavitt has waived his to chal- mandatory); v. § to be Chenowith 58-5-16 lenge finding personal of the circuit court’s Keenan, 108, 55 61 W.Va. S.E. jurisdiction presently he is not and because of (discussing generally effect of dismissal party the instant before this Court as 1, Syl. pt. Meat Pack appeal). Lubeck this, other, appeal, or he cannot assert Cf. Co., v. Motorists Mut. Ins. ing, Inc. ground of error. (1988) (“ 372, it ‘Where W.Va. yet of com- Our resolution this issue is upon appears mature consider to the Court however, plete, remaining as the defendants presents appeal that an no substantial ation attempt by to ride on Leavitt’s coattails also or law which can be considered issues of fact challenging the circuit court’s assertion of ar fairly where the trial court raised and codefendant, jurisdiction personal over their result, be appeal at a correct will rived regard, remaining Leavitt.22 de- improvidently awarded and the dismissed as argued that “[a]ll [sic] fendants have De- be sum judgment the circuit court will prejudiced fendants were the trial court’s Syllabus, Ply marily Napier affirmed.’ personal jurisdiction over assertion of Defen- (1981).” male, 372, 167 W.Va. Conaty dant Leavitt.... The Defendants added)). (emphasis by being put prejudiced were on trial ac- authorities, many upon Based these conspiring a codefendant who cused of party appeals a lower we hold when Virginia had never been to West and was Ap ruling Supreme Court of court’s to the Beverly lawyer.” Conaty The defen- Hills required peals of West he/she prejudice arising jury’s allege dants from the bond, post post appeal failure to his/her finding both defendant Leavitt and verdict in the dismissal of that such bond will result remaining defendants liable fraud and consequent affir party’s appeal and the jury’s and the assess- tortious interference mance, party, the lower court’s as to that damages transgressions. for these ment Thus, affirm, Leavitt, the ruling. as to assertions, though, Apart these the re- appealable order of the Circuit Court of Ca- authority maining defendants cite no County. bell they proposition that also should be their of Leavitt’s of the dismissal As result challenge permitted the circuit court’s as- affirmance of the appeal, and the attendant jurisdiction personal over Leavitt. sertion of Leavitt, rulings may court’s as to be lower any authority to Neither can we discern effectively has waived his said that Leavitt personal challenge the permit a defendant to challenge finding right the circuit court’s that code- jurisdiction of a codefendant when per- properly he was within that court’s omissions, fendant, by or has See, acts jurisdiction. e.g., sonal his/her challenge per- right to waived part, Virginia Secondary Sch. Activi- West his/her jurisdiction. contrary, 102 sonal On Wagner, ties Comm’n County specific persons involve the of individuals Bd. also Duncan v. Tucker 21. See Educ., judicial authority object 140 S.E.2d person over to the exercise (1965) (“Jurisdiction may be con- power in the court to not the inherent them and (emphasis add- [.]" consent or waiver properly be- conflicts between individuals resolve ferred Calhoun, ed)); Morris v. it, jurisdiction personal parties can fore confer case, (1938) ("In ordinary civil S.E. expressly their or to act." acts failures respect- jurisdictional questions, especially those added)). (emphasis parties, may ing jurisdiction be waived[.]”). generally 1IB Michie’s Jur. Jur- See argue remaining do hot The defendants (1986) ("Jurisdiction § at 46 isdiction complain court's exer- that the circuit otherwise arising by implication person acquired jurisdiction them was im- personal as to cise of (“Be- done[.]”) of some act at 60 out proper. objections jurisdiction court’s over cause [traditionally, courts have been reluc- ed a claim granted which relief can be persons standing tant to allow to claim respect to his causes of action for fraud rights party vindicate the of third on the parental and tortious interference with his grounds parties generally third are relationship Baby Boy Conaty. In this the most effective advocates of their own regard, ostensibly rely upon the defendants rights litigation and that such will result 12(b)(6) Rule of the West Rules adjudication unnecessary rights in an Procedure, permits Civil which a defendant holder either does not which the wish to ato civil action to move for dismissal enjoy regardless assert or will be able to plaintiff case if the “fail[s] to state claim the outcome the case. upon granted.” During which relief can be 265, 279, Snyder Callaghan, v. 168 W.Va. 284 below, proceedings the circuit court re- added) (ci- 241, (emphasis S.E.2d 250 challenges viewed the defendants’ to the two omitted). Furthermore, tation the United causes of action asserted John and deter- Supreme spe- has States Court announced a mined that John had stated claims “prudential standing normally cific rule that granted he which could have been relief. litigants asserting rights bars legal interests of in others order to obtain courts, We have instructed circuit injury relief from to themselves.” Warth v. 12(b)(6) deciding when a Rule motion to dis Seldin, 490, 509, 2197, 2210, 422 95 U.S. S.Ct. claim, miss for failure to state a valid (1975).23 343, 45 L.Ed.2d 361 allegations light the factual “constru[e] Therefore, appel we hold that an plaintiffs.” most Murphy favorable assign as error a lant/defendant 35, 36, Smallridge, 167, per circuit court’s affirmative assertion of (1996). “[djismissal regard, In 168 jurisdiction coappellant/code sonal over a proper failure to state a claim is where ‘it is coappellant/codefendant fendant when the granted clear that no relief could be under challenged either has not the assertion of proved set of facts that could be consis personal jurisdiction over or has him/her ” allegations.’ tent with the (quoting Id. Hi otherwise, by omissions, acts his/her and/or 69, 73, 104 King Spalding, shon v. & 467 U.S. right challenge person waived his/her 2229, 2232, (1984)) S.Ct. 81 L.Ed.2d 65 jurisdiction ruling. Accordingly, al we find (additional omitted). citation Stated other remaining prop defendants are not wise, parties challenge er the circuit court’s ex personal jurisdiction ercise of over defen court, appraising trial “[t]he the suffi reason, dant Leavitt. For this and as a 12(b)(6) ciency complaint of a on Rule appeal, result of our of Leavitt’s dismissal motion, complaint should not dismiss the we leave rul undisturbed the circuit court’s appears beyond unless it doubt that regard. in this plaintiff prove sup can no set of facts port of claim which would entitle him to B. Syl. Chapman relief.” Pt. v. Kane Upon Statement Which Claim [Inc.], Company, [160] W. Va. Transfer [530,] Be Can Granted Relief 236 {citing ] S.E.2d 207 Con [ Gibson, 41, 45-46, ley The assignment defendants’ er- 355 U.S. 78 second S.Ct. question 99,[ 102,] 80[, (1957)[) ror raises the 2 of whether John stat- 84] ]. L.Ed.2d (footnote omitted))); Serv., Dep't See also United States Labor v. Tri New Pub. Orleans Inc. 715, 720, 1428, 1431, plett, 494 U.S. Co., 110 S.Ct. Pipe v. United Gas Line 732 F.2d " (1990) (“Ordinarily, 108 L.Ed.2d ... a (5th Cir.1984) (acknowledging party 'a has ' ” litigant legal rights "must assert his own standing right no to assert a if it is not his own’ interests, and cannot rest his claim to on relief Land, (quoting United States v. 936.71 Acres of ’ ” legal rights parties.” of third interests (5th Cir.1969)) (footnote 418 F.2d omit (quoting Valley Forge College Christian v. Ameri ted)); States, DuPree v. United 559 F.2d State, Separation cans United Church & (9th Cir.1977) ("[T]he presence of harm to Inc., 464, 474, 752, 760, 454 U.S. 102 S.Ct. party permit does not him to assert the (1982) (quoting L.Ed.2d Warth v. Sel parties of third in order to obtain redress for din, 2197, 2205, 422 U.S. 95 S.Ct. (citation omitted)). himself.” (1975) (citations omitted)) L.Ed.2d Co., 12(b)(6), P. Inc. v. claim under W. Va. R. Civ. Rule Syl., Lodge Distrib. John W. Texaco, Inc., interlocutory 246 S.E.2d 167 in that such an order is nature”). at 169 See also id. at (“The com- trial court should not dismiss a Nevertheless, possible, it is as is evi merely it doubts that plaint because action”). judice, party, denced the case sub for a plaintiff prevail will 12(b)(6) Rule motion whose was denied principles permit to these addition court, ultimately the circuit raise this issue adequa ting the circuit court to evaluate appeal, interlocutory on not as an order but allegations, cy complaint’s factual all judgment part underlying as of the final his/ 12(b)(6) gov are of Rule motions decisions Thus, appeal. party, part her a as of “[w]hen policy liberal of the rules of erned “the appeal judgment, assigns from a final as regard of pleading with to the construction error a circuit court’s denial of a motion to policy plaintiffs complaint! and ... of ] dismiss, disposition the circuit court’s favoring of ac rules the determination motion to dismiss will be de novo.” reviewed 606, Lodge at tions on the merits.” John W. Syl. 4, pt. Ewing County v. Board of Educ. of Accordingly, at 159. we have 245 S.E.2d Summers, 228, 202 W.Va. 503 S.E.2d 541 “the to for fail directed that motion dismiss (1998). Applying this de novo standard to a claim should be viewed with ure state review, argu we turn now to the defendants’ rarely granted.” Id. disfavor and alleging ments that John failed to state grants Rule a circuit court a When upon granted claims which relief can be for 12(b)(6) complaint a motion dismisses parental fraud and tortious interference with upon failure to state a claim which relief can relationship. granted, appellate circuit review complaint court’s dismissal of the is de novo. 1. Fraud See, Area Med. e.g., v. Charleston Shaffer 12, Ctr., Inc., 428, 433, 199 485 S.E.2d W.Va. The defendants first contend that (“Where (1997) heard 17 matters on upon John failed to state claim for fraud 12(b)(6) do not extend outside the motion granted which relief can be because his com pleading, from an our standard of review plaint specifically plead failed cause of 12(b)(6) dismissing Rule order a claim under regard, for fraud. In this the defen action (citation omitted)); v. Murphy novo[.]” is de suggest that the circuit court erred dants 36, Smallridge, 196 468 S.E.2d at W.Va. determining complaint contained John’s (“We 168 review de novo a dismissal under fraud, required by allegations of sufficient 12(b)(6) Virginia Rules of Rule of West 9(b) Rules of Civil Rule of West (citation omitted)). Procedure[.]” Civil ..., all averments of fraud “[i]n Procedure: constituting fraud ... the circumstances contrast, By a circuit court’s denial particularity.” The de shall be stated with 12(b)(6) dismiss, motion to which of a Rule failure to “[t]he fendants further submit that plaintiffs proceed permits the case to on particularly consti plead the circumstances action, causes of is less often stated tuting ... inhibits full review of fraud “Ordinarily subject appellate review. of fraud this Court substance of the claim a claim of a motion for failure to state denial precludes introduction of appeal on [and] granted pur relief can be made which allegation supportive any general evidence Virginia Rules Proce suant to West Civil Syl. complaint[.]” in the of fraud contained 12(b)(6) is, interlocutory there dure is Co., 86, 4, pt. v. Emax Oil 195 W.Va. Croston fore, Syl. pt. immediately appealable.” (1995). Hill, 728 See also 464 S.E.2d v. ex rel. Arrow Concrete Co. State Corp., 161 W.Va. part, Hager v. Exxon (empha 460 54 194 W.Va. S.E.2d (1978) (“[F]raud or mistake added). 241 S.E.2d 920 City Hutchison v. sis See also alleged appropriate pleading in the must be Huntington, 479 S.E.2d 198 W.Va. to do so particularity!,] and the failure (acknowledging “[o]rdi during proof thereof precludes the offer narily, does not entertain nor dis this Court trial.”). complain also The defendants for failure to state a cuss a denial of motion acquisition complaint aggrieved party did not contain the or result in the that John’s “fraud,” “misrepresentation,” words or “de- advantage an undue or unconscientious over averments of their ceit” reference aggrieved party. Citing Stanley v. Se allegedly fraudulent conduct. Co., well Coal W.Va. (1981); Huntington Bridge v. Miller & Ohio addition, suggest defendants Co., (1941); W.Va. proper claim for fraud was not be-

John’s Smith, they cause cannot be held liable their Dickel 18 S.E. allegedly (1893); Co., fraudulent conduct. The defen- Hulings Hulings Lumber dants assert that one hold another liable 18 S.E. 620 Fraud also only allegedly party if for fraud liable has may arise from the active concealment of duty party seeking impose voluntary information or as a result of mis Here, liability. the defendants state that response inquiries statements in for infor attempting impose liability on Brewer, Citing mation. Frazier v. them for their silence and concealment of (finding party 43 S.E. liable Yet, certain information. the defendants if for fraudulent concealment willful his/her that, they duty maintain because owed no to suppression concealment and of facts causes information, imposition John to reveal such thereon). another’s detrimental reliance liability upon them because their refusal to suggests John that the defendants committed speak improper. Citing “fraudulent” is by withholding misrepre fraudulent acts (Second) 551(1) § Restatement of Torts senting Baby Boy Conaty information about (1976) (“One who fails to disclose to another thereby preventing exercising him from his may justifiably a fact that he knows induce parental rights. acting the other to act or refrain from ... is subject liability to the same to the other as Finally, John characterizes the defendants’ though represented he had the nonexistence concealing actions information about his disclose, if, of the matter that he has failed to type conspiracy. Citing child as a of civil if, only duty he but is under a to the other to 1, Syl. pt. part, Dixon American Indus. exercise reasonable care to the mat- disclose Co., 832, Leasing 162 W.Va. 253 S.E.2d 150 question.”). ter in (1979) (“In conspiracy order for civil to be did, fact, answers John that he state a proved actionable it must be that the defen valid of action for cause fraud. this re- wrongful dants have committed some act or gard, necessary John submits that it is not have committed a lawful act in an unlawful specific “misrepre- use the words “fraud” or injury plaintiff[.]”). manner to the complaint asserting in a sent” a claim for Typically, co-conspirator the acts of one are comply fraud in pleading order with the persons participate attributable to all who 9(b). Rather, requirements of Rule it is Smith, conspiracy. Citing Wells v. only plead essential relevant facts with 97, (1982), W.Va. 297 S.E.2d 872 overruled in specificity particularity imply such as to part grounds Fleming on other Garnes v. a fraud has been committed or from which a Inc., 656, Landfill, 186 W.Va. 413 S.E.2d 897 necessarily conclusion of fraud results. Cit- (1991). Thus, John maintains that his cause ing 37 Am.Jur.2d Fraud and Deceit alleging perpetrated by of action fraud all of 577-78 proper the named defendants is all since Furthermore, urges that the defen- conspiring defendants are accountable duty dants had not to conceal from him the conspiracy. fraudulent acts of the whereabouts of his son and advocates the reaching precise Prior issue of recognition aof cause of action for fraud adequately whether John stated a valid cause particular under the circumstances of this fraud, of action for we must first examine the liability case. He indicates that for fraudu- rudimentary upon foundation which John act, omission, lent conduct an issues from imperative his claim. It rests to note at involving legal concealment the breach of a trust, possesses myriad duty, the outset that a woman confidence. Such fraudulent produce injury respect personal conduct must also repro- of choices with to her para- Therefore, custody of child is parent the various his/her decisions.24 ductive concerning rights per- Anne made of all other mount to custodial decisions Boy Baby placement of adoptive sons).25 Instead, biological father birth an unwed within her constitu- Conaty squarely were judicially recognized and constitutional- has a rights. Howev- tionally protected decisional right to establish a ly protected inchoate rights as the er, we must not overlook John’s relationship pro- with his child parent-child of this child. father evidencing certain criteria vided he satisfies responsibilities full intent to assume the biologi While, historically, an unwed Robertson, parenthood. Lehr v. 463 U.S. right superior possessed a cal mother 2985, 2991, 77 L.Ed.2d 103 S.Ct. without the benefit custody her child born (1983) (“[T]he parents preference is marriage, an automatic See, unyielding responsibilities they rule. longer counterpart a settled and no are a Stone, 196 Roy rel. Allen S. v. e.g., assumed.”); ex Roy State ex rel. Allen S. State S.E.2d Stone, “liberty protected (noting interest” that the (1996) (“In opinion, strength of a our par process clause “includes the due is not parent’s bond with his or her child preserve relation right to establish and ent’s official or traditional dependent some children, they if her even ships with his or rather, strength derives arrangement; (em family” the traditional are born outside parent’s personal and emotional from the added) (citations omitted)); phasis develops relationship that investment and the Burnside, Honaker v. investment.”). right (recognizing parent’s finding custody child absent of his/her Specifically, unfit or has waived custodial parent father demonstrates a Willis, an unwed 1, [w]hen rights); Syl. pt. In re (1973) responsibilities of 225, (holding right full commitment to 129 See, liberty require cepts personal unite to that all e.g., of Planned Parenthood Southeastern of 833, throughout length Pennsylvania Casey, S.Ct. citizens be free to travel v. 505 U.S. 112 statutes, 2791, (1992) by (recognizing wom- of our land uninhibited L.Ed.2d 674 and breadth rules, 120 unreasonably regulations which burden right to and obtain abortion without en have seek movement.”), husbands); part notifying ovemded in on Planned Parenthood their or restrict of 52, Jordan, Danforth, by 96 U.S. grounds Missouri v. 428 U.S. Edelman v. 415 Central other 2831, (1976) 651, 1347, (1974); (plurality 49 L.Ed.2d 788 L.Ed.2d 662 Unit S.Ct. 94 S.Ct. 39 745, right Guest, 757, opinion) (declaring to seek women have S.Ct. U.S. 86 States v. 383 ed or, 239, ("The spousal 1178, (1966) 1170, without consent and obtain abortion 249 16 L.Ed.2d seeking and of unmarried minors in the case right State to to travel from one constitutional another, consent); abortion, obtaining parental without highways necessarily to use the 705, 113, Wade, 35 410 U.S. 93 S.Ct. Roe v. commerce in of interstate other instrumentalities (1973) quali- (holding women have L.Ed.2d 147 so, doing occupies position fundamental pregnancy during period right to terminate fied Union.”); Edwards v. concept our Federal of Baird, nonviability); 405 Eisenstadt v. of fetal 164, 169, 160, 178, California, 62 S.Ct. 314 U.S. 1029, (1972) 438, 92 S.Ct. 31 L.Ed.2d 349 U.S. 119, (1941) ("The right to move 127 86 L.Ed. right (finding persons have to obtain unmarried freely an incident of na State to State is from Connecticut, contraceptives); v. 381 Griswold privileges and citizenship protected tional 1678, (1965) 479, 510 85 S.Ct. 14 L.Ed.2d U.S. (acknowledging Amend the Fourteenth immunities clause of ment[.]”); right persons married 274, 270, Fears, 179 U.S. Williams v. contraceptives); ex. Skinner v. Oklahoma obtain 128, 129, 186, 188 45 L.Ed. 21 S.Ct. 1110, Williamson, 535, 62 86 316 U.S. S.Ct. rel. locomotion, right ("Undoubtedly right of (1942) (declaring individuals have L.Ed. 1655 according place to another to remove from one right procreation). Doe v. of fundamental Cf. inclination, liberty, personal is an attribute 1308, 2136, Smith, 100 U.S. 108 S.Ct. 486 right, ordinarily, transit from or of free and the (1988) (refusing permit unwed L.Ed.2d 909 right territory is a through State biological enjoin biological unwed father Amendment and the Fourteenth secured abortion). obtaining from mother Constitution.”). provisions of the other addition, firmly estab- individuals have See, of the abolishment 25. For further treatment e.g., Shapiro right v. to travel. lished recognition of a 618, 629, preference and the the maternal Thompson, U.S. 89 S.Ct. 394 II.C.3., rights, in- ("CT]he parent's see Section custodial nature 22 L.Ed.2d 612 con- Union and our constitutional of our Federal fra. so, by “com[ing] partic development. forward to If parenthood child’s he fails to do child,” ipate rearing in of his Caban [v. the Federal Constitution will not automati- ], [380,] 392, [99 U.S. cally compel opinion Mohammed S.Ct. a State to listen to his 1760, 1768, (1979),] 60 L.Ed.2d his of where the best lie. child’s interests personal interest in contact with his child Robertson, 261-62, Lehr v. at U.S. protection acquires substantial under the (foot- 2993-94, S.Ct. at 77 L.Ed.2d at 626-27 Clause.[26] point At that it Due Process omitted). 624, 474 S.E.2d 554. See also opportunity possesses that no other male S., 638, Roy State ex rel. Allen 196 at relationship offspring. develop to a with his (directing highly 474 S.E.2d at 568 that “it is grasps If opportunity accepts he and ... ... relevant to consider whether the responsibility some measure of for the future, putative [biological] dilatory may enjoy blessings father was child’s he the parent-child relationship grasping opportunity paren- the of the and make to assert his uniquely rights responsibilities”).28 valuable contributions to the tal and process prohibits 26. pa The Fourteenth Amendment to the United due the termination of his guarantees States Constitution that no "State relationship showing rental absent a of his unfit life, liberty, deprive person prop- [shall] of or parent. showing, ness as a Absent such a the Const, erty, process due U.S. law[.]” without of well-being presumptively child's is best served XIV, § amend. 1. parental relationship. continuation of the father’s Similarly, when the has come father forward to III, 10, 27. Article the West Section of grasp parental responsibilities, parental his his person Constitution ensures that deprived shall be "[n]o rights equal protection are entitled to as those of life, liberty, property, of without due (footnote omitted)); the mother.” Jermstad law, process judgment peers.” of and the of his McNelis, 528, 550, Cal.App.3d Cal.Rptr. 210 258 519, (1989) (recognizing 532 that "where the Many jurisdictions of our sister have also rec- promptly natural father has come forward to ognized biological an unwed father’s interest in grasp opportunity diligently pur his interest and maintaining parent-child relationship a with his " opportunity sued that interest” he has ‘the to biological willing- child he a when demonstrates ” protected relationship' establish a custodial accept responsibilities ness to the of fatherhood. M., (quoting Baby See, S., 816, with his child In re Girl 37 e.g., Adoption Kelsey 1 Cal.4th of 74, 315, 65, 309, 849, 1216, Cal.Rptr. Cal.3d 918, 207 688 Cal.Rptr.2d P.2d 4 823 P.2d 1236 1141, (1984))); (1992) ("If of H.R., Appeal 924 581 A.2d promptly an unwed father comes for- curiam) (D.C.App.1990) (per (separate 1162 ward and demonstrates a full commitment to his Ferren, financial, J.) (“[W]hether parental responsibilities emotional, opinion par of Assoc. a — unwed, right opportunity and otherwise—his federal constitutional to ticular noncustodial father’s

123 port during pregnancy of the mother the and protection contributing support entitled to the be substantial to of child after its interest will appli depends (citation omitted)); process on the due clause under In the Matter birth” of (1) presence 1059, D, Baby such factors Boy cation of Adoption 742 P.2d 1067 of relationship between ("The an established (Okla.1985) absence of protects only par Constitution (2) existing family; whether the an child and relationships biological parents ent-child of who custodial, personal, or has established father actually to their committed themselves chil child, relationship with his or assumed financial responsibilities during responsibility for dren and have rear exercised pregnancy; the mother's H.S., children."). B.G. v. their 509 Cf. any, impact, of action on if state 214, (requiring (Ind.App.1987) 217 N.E.2d un relationship opportunity to establish father’s biological paternity wed father to file action in child; (4) age the child when with his of protect "opportunity develop to his to order initiated; parental rights is action to .terminate child”). responsible relationship with his But and father's or disre the natural invocation see, Walcott, 246, e.g., U.S. Quilloin v. 434 98 safeguards protect gard statutory designed of to 549, (1978) (determining 54 S.Ct. L.Ed.2d 511 interest.”); Adop opportunity Matter his In the biological pro did not have that unwed father Doe, (Fla.1989) So.2d 748 tion 543 right eleven-year-old tected to his son’s veto ("[T]he parent biological relationship offers adoption by mother husband of child’s where responsibili opportunity parental to assume child, regularly sup never father had lived with biological rela ties. based on the Parental child, child, ported custody of or at exercised inchoate, assumption tionship are tempted legitimate adoption to child until after parental responsibilities of constitution which is filed); Adop petition had been In the Matter of Eason, Baby significance.”); al 292, 296, In re 257 Ga. Girl Doe, (finding unwed tion So.2d (1987) ("[U]nwed biological establish right father had no to rela gain biological from their connection fathers tionship "pro with his when he failed to child develop opportunity a child an interest to with relationship prebirth support pregnant the unwed vide consti with their children which is support when needed [was] mother and tutionally protected. opportunity This interest means”); within his In the Matter Petition begins conception probably and endures B.D., (con 730 P.2d minority Steve Idaho throughout it is But child. lost.”); cluding biological unwed father did not have In the not It indestructible. B.D., relationship protected with his Petition 112 Idaho interest in child Matter Steve curiam) (”[I]n (1986) (per mariy 730 P.2d where he did not child’s mother before birth; protection expenses; of the Fourteenth order to secure pay failed for birth child's Equal Process Protection Amendment Due provided support; for child’s financial never Clauses, oppor grasp the child; the unwed father must attempt no to interact made custodial, personal, tunity significant to make legal delayed proceedings the initiation of financial, legal with the child.” connection interest); parental Robert O. v. Russell establish his (internal omitted)); quotation and citations , 80 N.Y.2d 590 N.Y.S.2d K. R.E., (La.1994) the Matter So.2d (determining biological father N.E.2d ("When father a full an unwed demonstrates protected child his in his had lost interest responsibilities parenthood commitment demonstrating par promptly his commitment beneficially ability participate in the enthood; biological unwed father failed ascer child, rearing personal con of his interest biological pregnant with his tain mother acquires protection tact with his child substantial child, although biological had mother not at process clauses.” the state and federal due under pregnancy tempted conceal of her from to fact S.R.S., (citations omitted)); Application In re of him, parental steps his or to take to assert 759, (1987) (per cu- 225 riam) 408 N.W.2d 272 Neb. rights until of existence some he learned child's pro (finding biological unwed father had adoption been after had final ten months ized); child’s relationship where interest in with his son tected Adoption Baby Boy Dearing, In re 98 of continuously provided with he for and interacted 197, (1994) (finding App.3d 648 N.E.2d 57 Ohio during years his son’s first of life and son two putative personal contact father’s interest in with repeatedly attempted to where ascertain son’s protection entitled because he child to be to no unilaterally biological unwed mother abouts after care, support rearing, participate of not did child); placed adoption); Adoption In re son for of Baby Boy Adoption In the Matter 648, 653, of Zschach, of Ohio St.3d 665 N.E.2d 75 1059, D, (refusing protect to un 742 P.2d 1068 1070, only (acknowledging "if a 1075 parent-child biological wed father's interest accepts biological father comes forward provided relationship he no with his son where parenthood responsibilities he] be [will full of support mother child’s dur financial care for relationship”), protection full of that extended attempt Zschach, pregnancy; to ascertain nom, her made no 519 Johnson v. cert. denied sub born; where would be 1028, 582, when and his child S.Ct. 136 L.Ed.2d 513 U.S. 117 any responsibilities of generally failed to (1996); Boy assume Baby Adoption the Matter of Clausen, 643, 442 W., (Okla.1992) parenthood). But In re Mich. (noting 646 P.2d 831 cf. 43, 649, 648, 665 n. 684 n. 502 N.W.2d biological parental will father’s interest unwed curiam) by the (per (”[P]rompt father to action only statu preserved where he has exercised " rights, parental with the father’s tory combined rights assert 'parental and duties toward ” relationship child,’ sup- being prevented developing a "contributing to the from which include appeal, The circumstances of the instant fully strates that he is committed his that, though, alleg- parental responsibilities are somewhat unusual in grasped and has actions, edly opportunity relationship as a result of defendants’ commence a child, [recently paternal rights up- born] to assert his John was unable his court must by establishing parental relationship parental rightsf.]” Adoption hold his In re B.G.S., (La.1990) 545, Baby Boy Conaty. Because 556 So.2d the child was 558-59 added). placed adoption family (emphasis with a Canadian birth, immediately almost after his John was acknowledging difficulty Also permitted opportunity to see or oth- biological which an unwed father have in son, provide visit with his much erwise less asserting paternal rights paren his when his support and fulfill pa- for his otherwise agenda tal conflicts with that of the unwed obligations. rental Several courts have rec- mother, biological the District of Columbia ognized respect that when the child with Appeals Court of decided that “when an un attempts paren- whom a father to assert his relinquished right wed mother has her infant, tal slightly is a newborn custody of a adoption child at birth for inquiry appropriate modified to determine strangers, the unwed father’s interest in de “grasped whether the opportu- father has veloping relationship a custodial with his nity” parent-child relationship. establish a child is entitled to substantial constitutional Thus, biological where unwed mother on, protection early he has arid continual if place decided to her adop- newborn child for ly, done all reasonably that he could have birth, immediately thereby tion pre- after expected been to do under the circumstances cluding biological the child’s unwed H.R., father pursue that interest.” Appeal establishing relationship with his (D.C.App.1990) A.2d (per 1162-63 cu child, riam) Supreme J.) Court of Louisiana deter- (separate opinion Ferren, Assoc. (citations added) omitted).29 appears mined that (emphasis and demon- See “if father 855, 861, 559 N.Y.S.2d N.E.2d (1990) ("[A]n physi- with the child actions of the courts or the unwed father who has been custodians, cally relationship unable to have a full custodial mitigate are factors that excuse or with his newborn ... (cita- child is entitled to the relationship.” the failure to establish such a protection relationship, long maximum of his so omitted)). tions promptly possible as he avails all the himself of forming legal mechanisms and emotional H., Adoption 29. Accord Michael 10 Cal.4th [Hjowever, bond with his child .... ... in order 1043, 1060, 445, 455, Cal.Rptr.2d 898 P.2d protection have to the the benefit of the maximum (1995) (holding biological that unwed relationship biological only ... father not constitutionally protected father has no interest promptly must assert his ... interest but also in his newborn child he "unless shows that he ability willingness must manifest his to as- promptly came and demonstrated as forward full custody added) (emphasis sume of the child[.]” parental responsibilities commitment to his as the (citations omitted)). biological mother allowed and the circumstances Numerous state courts also devised de- permitted within a short time he learned or after examples pre-birth tailed conduct an un- reasonably biological should have learned that the biological timely wed father indicative of his ” pregnant (emphasis mother was with his child See, assumption parental responsibilities. e.g., added)), nom, S., cert. denied sub Mark K. v. John S., 816, 849, Adoption Kelsey 1 Cal.4th 516 U.S. (1996); 116 S.Ct. 134 L.Ed.2d 219 615, 635-36, Cal.Rptr.2d 823 P.2d 1236- K., Robert O. v. Russell 80 N.Y.2d ("The father's conduct both before after 590 N.Y.S.2d 604 N.E.2d the child’s birth must be considered. Once the (1992) ("[T]he placed unwed father of an infant reasonably father knows or should know of the adoption immediately unique for at birth faces a pregnancy, promptly attempt he must to assume paren dilemma should he desire to his establish parental responsibilities fully his as as the moth- rights. Any opportunity tal he has to shoulder permit. er will allow and his circumstances In responsibility parenthood may disappear of particular, the father must demonstrate 'a will- it, grasp before he has a chance to no matter ingness custody himself to assume full of the willing Accordingly how he is to do ... so. merely adoption by child—not to block oth- protects some instances the Constitution an un .. ers.’. A court should also consider the father’s opportunity wed develop father’s to a relation public acknowledgment paternity, payment of of ship daughter.... with his infant son or The pregnancy expenses and birth commensurate right only exists for so, the unwed father who mani ability prompt legal with his to do and action willingness custody fests his to assume custody full of the (quoting to seek of the child.” In the (citation omitted)); promptly.” X., 855, child Raquel and does so Matter Marie 559 N.Y.S.2d of X., 387, 865, 387, 408, Raquel 418, In Matter Marie 76 N.Y.2d 76 N.Y.2d 559 N.E.2d 428 of

125 468, relationship”). v. develop 487- Wells Chil 164 Ill.2d of Kirchner, also Petition Cf. Utah, 199, 324, 276, Soc’y 681 206 268, 333 Aid P.2d 88, 649 dren’s N.E.2d 208 Ill.Dec. of 1984) (Utah curiam) biological (dictating unwed that unwed (discussing “an (per timely “file notice his claim placed for must a of rights regarding an father infant father’s parental rights protect to “his paternity” his child to who seeks to raise adoption at birth infant”).30 Thus, appears doing through de newborn [his] so prevented from but is would had a for announcing ... that John have valid basis that “fathers ception” and asserting constitutionally protected right to termi a rights properly are not parental whose deceit, parent-child rela kept from and maintain a who, through establish are nated and inability his his to developing tionship despite a with son assuming responsibility and custody him children, physical or to visit with entitled have his relationship their are placement rights prior pre-adoptive fathers his into Cana process as to to same due actually opportunity and do da.31 given an who are (footnote omitted)); (1990)) of Adoption a female as a result nonconsensual Michael nates of 452, 1056, H., nothing Cal.Rptr.2d at intercourse. We find 43 sexual 10 Cal.4th ("To high provides the extent mother needs decisions 898 P.2d at 898 relevant process unwed [prenatal] right assistance and the due such critical such a father a in connec- it, father, of provide adoption as one custody is able to father with the of his bio- tion pregnan- responsible two for the individuals logical also not entitled child. Such a father is early encouraged cy, i.e., to do on should be so equal protection, rights the same as the protection granted constitutional mother, should not be the father and mother are because timely fulfill this if he has failed after birth "clearly similarly in- situated. The sexual Adoption responsibility.”); In the Matter voluntary only of father. of for the tercourse 741, ("[A]n Doe, (Fla.1989) unwed 746 543 So.2d to be treated simi- Nor is such father entitled failing prebirth providing father's conduct larly as a to those males who become fathers responsibilities provide support and medical sexual intercourse. result consensual to the expenses for mother is relevant the natural 14, 816, S., 4 Adoption Kelsey Cal.4th n. 1 849 abandonment."); Adoption issue of re 615, 14, 1216, Cal.Rptr.2d 823 1237 636 n. P.2d 545, (La. B.G.S., 1990) (citing ex- 551 556 So.2d n. 14. biological amples unwed father conduct "amply to his his dedication demonstrated stated, important con- As we often 31. indicating, responsibilities”: before his parental determining bi- whether an unwed sideration in birth, biological opposition to unwed child's his permitted ological father to maintain will place adoption; intention to child mother’s relationship is whether the main- with his child child; formally acknowledging paternity of his relationship would be consistent tenance of actively opposing adoption seeking notice of and See, e.g., ex child’s interests. State with the best desig- attempting proceedings; to have himself 638, Stone, 624, Roy 196 W.Va. Allen S. v. rel. original on birth certifi- as child’s father nated 554, (1996) ("Although parent 474 S.E.2d cate; through corpus seeking custody habeas child, parent’s protectable in a interest has inserting father proceedings; his name as child’s of the rights '[t]he are not absolute: welfare certificate; timely pursuing re-issued birth on paramount which consideration to child by marrying legitimating litigation; child factors, prefer- including law common all of mother); Raqu- biological In Matter child's rights parents, must be deferred ential X., N.Y.2d 559 N.Y.S.2d el Marie ” Johnson, (quoting Johnson subordinated.' 418, 865, (conduct evidenc- N.E.2d (1995), N.C.App. biological father’s commitment unwed grounds, 343 per curiam on other N.C. rev’d "may parenthood include such considerations (additional (1996)) quo- S.E.2d 59 internal paternity, payment acknowledgment public omitted)); Syl. and additional citations tations expenses, steps pregnancy taken and birth D., pt. Matter Brian child, legal responsibility for the establish (1995) (“Cases involving children S.E.2d 129 evincing a commitment other factors child”). just of com- in the context be decided not must rights, peting but also with sets of adults’ child(ren).”); Implicit rights decision of case is Mi- regard in our for the L.T., biological necessarily scope of an unwed limited chael K.T. Tina (1989) ("[T]he a man attains fatherhood interests of father’s where best conduct. solely his uninvited polar virtue of sexual decisions child is star which Thus, (citation adopt approval clarifica- the artful affect children." be made which must omitted)); Supreme 410, rights by qualified Jeffries, tion of these 413- 103 Pierce v. W.Va. (1927) ("It 651, 14, Court of California: is well settled S.E. 652 137 is of obvious, welfare of the child this state that the stating caution in we At risk of determining importance who is paramount in protection, no consti- our affords that decision otherwise, of custody, that welfare impreg- to its entitled to a male who tutional or

126 Turning precise now to the issue able to demonstrate his commitment to the hand, we must responsibilities determine whether the circuit parenthood permit -of so as to upholding court erred in John’s cause of ac him to establish and maintain relationship a tion for fraud.32 John Baby Boy contends that but for Conaty. with While we have not- the defendants’ actions he prominence would have been ed the of Anne’s decisional regarded the child is to be more than the governing adoptive tech- the law placement this 1991 rights parent.”). nical required would not have such notice to have Court, additionally, given. We tenuously note in been Superior related See Marr v. 114 context, 527, accompanying ap- (1952) that the Cal.App.2d record (suggesting 250 P.2d 739 peal guardian seems to indicate that no ad litem adoption that comply consent to must with laws appointed protect Baby to the interests of jurisdiction adoption of filed); petition in which is Boy Conaty respect pre-adoptive to his Johnson, 73, Cal.App.2d Estate 100 223 of placement adoption into Canada and ultimate in (1950) (indicating validity P.2d adop 105 that of country. glean that any While we do not evi- tion is foreign determined laws of state or suggest dence irreparably to that this omission country finalized); adoption in which is Alex parties’ harmed the couple child or that Canadian Maravel, Intercountry andra Adoption and the provide is not able to a suitable home for Flight Rights: Right From UnwedFathers’ Whose infant, that, we nevertheless are concerned 497, Anyway?, 48 S.C. L.Rev. 522-23 & n. adop- while the numerous adults involved in the (1997) (describing requirements 159 notice in arguably contemplating tion terests, were the child's in- Alberta, Canada, requiring biolog "notice ato own, as well as their no one adult was [only] ical father permanent if there [is] no solely concerned with the welfare of the child order,” guardianship agreement or but instruct who was at the of heart the matter. Consistent however, ing may, that dispense ”[t]he court protect with our desire to the interests of minor any required except notice notice to the safeguarded, children which are not otherwise services”; family director of child and also re that, affecting recommend in future cases vealing "only parties that petitioning for permanent child, custody guardian of a ad (and adoption years child if at least twelve appointed any litem be proposed to ensure that age) are adop entitled to be heard [final at the arrangement custodial does in fact benefit and (footnotes hearing tion] before the court” omit promote safety well-being. the child’s See ted)). K., See also Robert O. v. Russell 173 Carter, 239, 23, Carter v. 251 n. 470 30, 35, 594, (1992) ("It A.D.2d 578 N.Y.S.2d 597 193, (1996) ("We suggest S.E.2d 205 n. 23 that is well settled that a 'natural mother ha[s] no unrepresented when case involves the interests obligation any child, to ... volunteer information with appoint guard- ... the circuit court ” respect added) (emphasis to (quot [the father.]' protection ian ad litem to assure of the children's XX, 417, (citations ing 427, omitted)); Matter Jessica 54 interest.” N.Y.2d Dep’t 446 State 20, 24, 896, Resources, (1981), N.Y.S.2d Health & 430 Human N.E.2d Robertson, 900 Child Advocate Of- nom, 621, 248, Pentasuglia, ex rel. v. 'd Cline sub Lehr v. 463 U.S. fice aff 625, 644, 2985, (1983))), 457 ('“Although 648 aff'd, 103 S.Ct. 77 L.Ed.2d 614 80 historically courts have addressed issues affect- N.Y.2d 590 N.Y.S.2d 604 N.E.2d 99 ing primarily children compet- the context of Mohammed, Caban v. 441 U.S. Cf. ing rights, present adults’ trend in courts 99 S.Ct. (implying 60 L.Ed.2d 297 throughout country give greater recogni- is to biological fathers are entitled to notice of children, tion including to the right their pending adoption proceedings by holding uncon independent representation proceedings af- permitted stitutional New York statute that bio fecting rights.'" (emphasis substantial origi- mothers, logical fathers, biological but not nal) E., (quoting Cleo A.E. v. Rickie Gene 190 adoption consent); block withholding Stanley 543, 546, (1993))). Illinois, 405 U.S. 92 S.Ct. (1972) (holding L.Ed.2d 551 biologi that unwed 32. Our discussion and decision of tire fraud issue and, hearing cal father is entitled impliedly, single inquiry focuses defendants, of whether the any hearing prior notice of effecting change individually collectively, had a D., custody); Adoption child’s Michael duly to disclose to John the information he re- 122, 130, CaI.App.3d Cal.Rptr. quested, him, they pertain- concealed from (1989) (noting statutory that California law re Baby Boy to the Conaty whereabouts of fol- quires biological pend lowing father be notified of his birth. We do not reach the issue of ing adoption petition defendants, and that he be afforded whether the spe- or defendant Anne right "the cifically, respect pro to be duty notify heard with had a John of either the (citation posed adoption” omitted)), surrounding superseded placement circumstances her C., adoption their child for statute as subsequent or the noted in In re Cana- Mario 226 Cal. adoption App.3d (1990); proceedings. Cal.Rptr. dian Cheryl Neither the circuit H. Court, parties’ Superior court’s instructions Cal.App.3d nor the briefs before argue this Court applicable Cal.Rptr. that the law (recognizing, adop adoptive context, placement child's required pro- biological Anne to tion that unwed father "is vide contrary, such notice to John. To the our entitled proceeding involving child). to notice of preliminary inquiry suggests into this change legal custody” area

127 “ ‘ importance essential elements an action “[t]he consider the rights, must also we hand, (1) parental rights.33 On the one are: that the act to fraud claimed John’s law principle the common a the act “[i]t is fraudulent was of the defendant ..., (2) gives right law a also by him; wherever or that it was induced material 41, remedy.” 1 Actions gives Am.Jur.2d false; a plaintiff and relied on it (1994) (citing v. Stan at 749-50 Wennerholm justified was under circumstances Med., 713, 128 20 School Cal.2d (3) Univ. it; relying upon was that he dam ford Pare, (1942); v. 352 P.2d Perkins So.2d 522 1, aged Syl. on because he relied it.” Pt. Rozell, (Fla.Dist.Ct.App.1977); Rozell v. 64 Lint, 272, Lengyel v. 167 W.Va. 280 S.E.2d (1939)). 106, 22 254 On the 281 N.Y. N.E.2d (1981).’ 2, Syllabus 66 Point Muzelak v. hand, impingement legal a other mere Chevrolet, Iric., 340, King 179 W.Va. 368 right enough to create an automatic is not (1988).” 2, Syllabus point 710 S.E.2d recovery right in tort. must also “There Bowling Chrysler-Plymouth- v. Ansted recognized by duty law[.]” be a of a violation [Inc.], 468, 425 S.E.2d Dodge, 188 W.Va. v. Virginia Transp. Co. Standard Oil West (1992). 144 591, Co., 611, 615, 40 S.E. 592 50 W.Va. 3, Syl. Young, Ernst pt. v. & 199 Cordial (1902). See, 9,§ e.g., Torts 74 Am.Jur.2d (1996). 119, 483 248 W.Va. S.E.2d Accord duty (impliedly creating to 627 n. 81 Co., 711, 717, Colony Teter 190 v. Old disturbing another’s exercise of refrain from 728, (1994); 441 734 Powell v. Time S.E.2d legal rights by recognizing that “[o]ne his/her Co., 289, 296, 342, Ins. 382 181 W.Va. S.E.2d anything anything, permits or to be who does (1989). 349 done, excuse, just or without cause neces sary consequence which interferes with or Perhaps to the res more instructive enjoyment annoys legal of his another acknowledgment is our olution of issue “ (citing Taylor rights, absolutely v. is liable” ‘an action for fraud can arise ” Cincinnati, 426, City Ohio 28 St. Ohio Teter, of truth.’ 190 W.Va. at concealment (1944))). 369, Op. 55 N.E.2d 724 With these 717, (quoting at 734 Thacker v. S.E.2d mind, look the law of principles we to 113, 885, 110, Tyree, 171 W.Va. 297 S.E.2d has fraud whether stated to determine (1982)). a claim of Such a basis for of action. valid cause possible “[f]raud because con fraud is truth, just much as as it is cealment

Generally speaking, “[f]raud has Frazier v. of a falsehood.” utterance omissions, acts, including all been defined 110, Brewer, 52 W.Va. 43 S.E. a breach of which involve concealments Snead, (1902). also Deusen v. See Van reposed, legal duty, justly trust or confidence 324, 328, Va. 441 S.E.2d another, injurious to are which (“ always involves deliberate ‘[Concealment advantage and unconscientious which undue designed prevent to another nondisclosure Stanley is taken of another.” v. Sewell Coal learning party’s A Co., truth. ... will 169 W.Va. omitted). fact (1981) (citations ful of a material that he nondisclosure Dickel v. Accord party may to the other Smith, knows is unknown 18 S.E. practice intent to actual fraud.’” precisely, evince an More wrongful will "a death action not lie recognition parental rights further that By of John’s our unnecessarily way against trammel her we in no intend woman who chooses to exercise instead, rights; By decisional adhere right Anne's an to have abortion. defi- constitutional personal practice prior our rights and afford those nition, right if a woman has constitutional Farley respect. See decision the utmost carry an child to whether to unborn term decide 671, 683-84, Sartin, it, aborting is not tor- the act abort then holding, (emphasizing that 534-35 cases, invoking the reasons for tious. In such wrongful permitted death action to be which apply; wrongful do there is statute death death of nonviable un- maintained tortious (footnotes to deter.” omit- no tortious conduct child, "neither affects nor interferes with born ted)). only emphasize that once We wish protection afforded woman constitutional bora, biologi- Boy Conaty two Baby he had abortion, as was set who chooses nearly co-equal parents had cal who Wade, originally 410 U.S. forth in Roe relationship parent-child with him. establish (1973)”; announcing 35 L.Ed.2d 147 S.Ct. 128 added). 21, 28, Griffin, Thus, v.

(quoting Spence (Emphasis 236 active Va. conceal- (1988))). party 596, ment of information from a 372 598-99 party’s

intent to thwart that efforts to con- investigation, relating duct to an such infor- vein, In this Second Restatement mation, constitutes actionable fraudulent con- recognizes of Torts a cause of action for 856, Lock v. Schreppler, cealment. 426 A.2d “[Any person] ... fraudulent concealment: (Del.Super.1981) (recognizing 860 cause of by who or other inten concealment action for fraudulent action concealment similar to tionally prevents acquiring- the other from by plaintiffs § provided that “For 550: to subject material is to the same information concealment, damages recover for fraudulent other, liability pecuniary loss as to the plaintiffs must demonstrate that defendant though he had stated nonexistence of the took some action in nature affirmative de- prevented matter that the other was thus signed prevent, or intended to and which (Second) discovering.” from Restatement prevent, discovery does giving facts § Explaining types Torts 550 claim, pre- rise to the fraud some artifice to wrongful.behavior contemplated by this sec knowledge repre- vent of the or some facts tion, §&to Comment 550 states that fraudu suspicion intended sentation to exclude may lent concealment arise (citation omitted)), prevent inquiry.” super- seded statute as Eastern successfully prevents when the defendant noted in Com- Fusco, Realty Corp. mercial v. 654 A.2d plaintiff 833 making investigation from an (Del.Supr.Ct.1995).34 made, that he would otherwise have made, which, if would have disclosed the In framing his cause action for facts; or when an fraud, alleged defendant frustrates also has the defen investigation .... Even a false denial of fraudulent dants’ conduct constituted a civil knowledge party or information to one conspiracy. recognizes The law of State transaction, possession who is in sounding conspiracy. a cause of action in civil facts, subject liability fully him to level, At its most fundamental a “civil con facts, expressly as if he had misstated spiracy” is “a combination commit a tort.” to upon plaintiff if its effect lead him Wood, 431, is to Myers State rel. ex v. 442, (1970) to 637, believe that the facts do not exist or (citing 175 S.E.2d 645 15A (1967)). Conspiracy § cannot be discovered. C.J.S. 1 In Dixon v. (citations Seizing upon language, jurisdic- misrepresentation” other direct affirmative omitted)); recognized tions have Rogers, also cause of action for Davidson v. 431 So.2d 1983) pursuant (Miss. ("In § damages fraudulent concealment to 550 of the 485 order recover See, (Second) concealment, e.g., plaintiff] Restatement Fox v. Torts. for fraudulent [the must (4th Corp., action, Kane-Miller 542 F.2d [the 918-19 demonstrate took some defendant] Cir.1976) nature, (recognizing cause designed of action "based affirmative which was or 'intentional[ly] prevent which is prevent, concealment intended and which did effective[ly hiding discovery giving ]the of a material fact with the of the facts rise to the fraud (footnote object creating continuing omitted)); attained or a false claim.” Roberts v. Estate of ” impression 568-69, Fegeas (quoting as to that fact' Barbagallo, Pa.Super. v. 366 531 A.2d Sherrill, 472, 476-77, liability 218 (stating Md. 147 A.2d 225 for fraud (1958))); Industries, "may § Roadmaster Inc. v. Columbia under arise ... an intentional Inc., Co., (D.Mass. Mfg. F.Supp. concealment of true facts which calculated to 1995) ("[I]n (citation omitted)); party” order to establish fraudulent con- deceive the other Paul cealment, 61, 65-66, plaintiff prove Kelley, Or.App. must that the defen- 599 P.2d steps dant took affirmative (explaining conceal defects or 1238-39 difference between prevent nondisclosure,” plaintiff acquiring knowledge "simple requires duty which concealment,” establishing speak, of tire defects.... addition to and “active which has no duty requirement; intentional indicating concealment of informa- [material] further that. " ..., tion must be contemplates established that the defendant '[a]ny "active concealment” plaintiff fiduciary owed duty or impression other acts which words or create a false truth, covering up similar relation trust that re- confidence ... which remove (citations quired omitted)); opportunity might disclosure.” Stevens have otherwise led to the Court, 605, 608-09, ..., Superior Cal.App.3d discovery of a material fact or even a false Cal.Rptr. (noting knowledge by possession that "in- denial of one in " Prosser, (quoting tentional concealment of a material is an fact facts’ William L. Handbook of (4th ed.1971))). equivalent alternative form of fraud and deceit the Law of Torts at 695 Co., transaction, from the Leasing 162 W.Va. need have benefited Indus. American therein, (1979), interest we have had collud- benefited”; person recognizing the ed with detailed definition of provided a more participates that in a “[o]ne further who liability: theory of fraud, guilty fraud is of and one course two conspiracy civil is a combination of [A] facts, who, knowledge of the assists by to persons concerted action or more in perpetration the of a fraud is another purpose ac- accomplish an unlawful or to omitted) (footnotes guilty” (citing equally purpose, in unlaw- complish not itself some 132, 132, v. 7 Claflin, Lincoln 74 U.S. Wall. ful, ac- by means. The cause of unlawful (1868))). L.Ed. 106 also Frazier v. 19 See by conspiracy but is created the tion (“He Brewer, 310, 52 at at 111 43 S.E. wrongful by by the acts done the defen- adopts adopts also means who the results injury plaintiff. to the dants about.”). brought by they which are 1(1) § 16 (Citing Conspiracy and 15A C.J.S. general Having enunciated stan- these 44). § Conspiracy Am.Jur.2d Given dards, assignment permit which of liabili- liability participants in a civil tort-based concealment, ty for fraudulent conduct or conspiracy, plaintiff maintain such a can specific look to cause of action: now John’s provided claim satisfies enumerat- he/she for whether defendants are liable conspiracy “In order for civil ed standard: alleged fraudulent of infor- their concealment proved it that be actionable must be (cid:127)in response inquiries mation about wrongful have committed some defendants post-birth his son. ob- whereabouts of We or a lawful in an act have committed act only that not is asserted cause of serve injury plain- unlawful manner jurisprudence novel to the of this action 1, Syl. part, in v. pt. Dixon American tiff[.]” State, appears but of no that the courts Co., 832, Leasing Indus. 162 W.Va. 253 directly other states have addressed whether Syl. pt. v. 150. See also Cook S.E.2d may a claim be maintained. Inc., 368, 342 453 Heck’s 176 W.Va. (1986) (same). decisions, Syl. specific pt. In some while a cause West Cf. Co., has action for fraud been asserted Transp. Co. v. Standard Oil 50 W.Va. of (1901) (“Where against allegedly de- those who have 40 S.E. 591 several com- father child, act, him ad- prived of his the courts have agree and to do lawful violative bine them, valid- duty eptly it is not avoided a direct resolution no to another due example, conspiracy subjecting For in Daoud ity them to of such a claim. an unlawful DeLeau, him, injure him, 639 though Mich. 565 N.W.2d the act v. action (1997) curiam), intended.”); biological father (per v. so Porter was Mack, brought against child’s a cause of action 40 S.E. 459 (“There biological adoption agency conspiracy no that mother can be to do manner.”). fraudulently they deprived claiming that had in a which lawful lawful by plac- relationship child him of a with his Additionally, who have con individuals adoption, ing the unbeknownst infant another spired with one to orchestrate and/or court, biological father. The determin- carry plan scheme can be out a fraudulent fraud claim ing that the basis of the father’s their Am. liable for conduct. See 37 held during perjured testimony presented § Deceit at 397 Jur.2d Fraud and rule adoption proceedings, declined to (stating “everyone engages in a who validity upon the of the father’s cause right protec forfeits all fraudulent scheme fraud, finding instead that he action tion, equity” (citing law or in Dens either at perjured testimony, which sought relief from Court, 317, 145 County v. more provided in the was limited to that relief (1928))); 37 Am.Jur.2d Fraud S.E. governing proceedings applicable rules (noting 403 & Deceit general. Id. only against from fraud be had relief Dunn, fraud,” Similarly, the court Larson “parties to the but those who were part, rev’d liability, (Minn.App.), “in explaining that order to establish N.W.2d aff'd (Minn.1990), though charged part, any person persons sought to be 460 N.W.2d squarely separate against with a father’s claim confronted cause action the defen- daughter’s concealment of his dants for their fraudulent fraudulent conduct. pertaining whereabouts information case, analogous In an the court in Wade v. well-being, mechanically her affirmed the tri Geren, (Okla.1987), 743 P.2d 1070 vacated an al of this claim -without court’s dismissal ex adoption rep decree based fraudulent planation. Additionally, McGrady concerning identity resentations Rosenbaum, 62 Misc.2d N.Y.S.2d biological unwed father made child’s (1970),aff'd, 37 A.D.2d 324 N.Y.S.2d grandparents, sought maternal who her (1971), the court found the father Doe, adoption. Accord Petition 159 Ill.2d wrongful did a for not have redressable claim 347, 351, 535, 536, 202 Ill.Dec. 638 N.E.2d with interference his visitation where 181, (invalidating adoption 182 and ex-wife, mother, his the child’s had been initially commenting “the fault here lies with granted custody parties’ by child a mother, fraudulently deprive the tried who to presumably valid court order. Because he rights, secondly, the father his and could not his main cause of maintain action adoptive the parents attorney, and their who interference, for the court likewise deter proceeded adoption they with the when knew claims, upon mined his fraud based that that a real father was out there who had allegedly manner in which interference knowledge baby’s been his denied exis perpetrated, had been were also without tence”); Adoption Murphy, In re 53 Ohio Delvaux, Copeland merit. Id. Accord 89 18, App.3d 557 N.E.2d 832 App.3d (per Ohio 623 569 N.E.2d adoption (invalidating proceeding because curiam) (affirming ruling, lower court’s placement “actionable fraud attended the and applicable wherein court determined that adoption proceedings” initial biolog of unwed statute biological of limitations barred unwed child). ical father’s Robert O. v. Russell Cf. adoption). father’s claim fraudulent K, 80 N.Y.2d 590 N.Y.S.2d 604 (1992) (declining N.E.2d adop to vacate decisions, though involving Other issues of tion, biological which unwed father claimed fraud, had opportunity have not a direct to obtained, fraudulently had been because rec resolve issue of liability whether civil by ord attempts did not evince unwed may imposed fraudulently be one con biological deceptively mother to conceal her cealing about child information from that father); pregnancy from the child’s In re parent. child’s This line of cases instead Hart, Adoption App.3d 62 Ohio alleged reviews whether the fraud to have (1989) (refusing N.E.2d 77 adop to dismiss procurement adoption facilitated the of an petition tion as evidence did not indicate that permit adoption decree is as to such to be adoptive parents fraudulently had concealed set aside. The court In the Matter identity biological from court of unwed fa S., Adoption Baby Girl Misc.2d ther). (1988), aff'd, N.Y.S.2d 150 A.D.2d (1989), N.Y.S.2d dismissed the Despite precedent the lack of adoption petition finding after recognizing a claim based tort and sound [adoption] [t]he record establishes that this fairly analogous fraud in circumstances permeated proceeding is with fraud and underlying appeal, to those the instant misrepresentation. parties Each of the jurisprudential not, alone, absence does fore mother, prospective adoptive [the par- recognition close our of such a claim. “As ents, attorney representing and both stated, previously precedent ... a lack of — and prospective adoptive mother standing alone —is an insufficient reason to parents], exception [the unwed deny Sartin, Farley cause action.” father], biological agenda had an not re- 195 [adoption] papers vealed in the and abused (1995) (footnote omitted). Notwithstanding judicial process to it. achieve biological an responsibility unwed father’s to Id., affirmatively protect Misc.2d 535 N.Y.S.2d at rights, by his own opinion, though, Nowhere in the “grasping opportunity” did the to demonstrate court indicate whether parental the father would have his assuming commitment to re- child, provide such information to the child’s his we cannot condone sponsibility for request parent pursuant for such in this case of the defendants the actions his/her unduly who, conduct, wrongfully such concealment by interfered information and their irreparably harms the ability and assert his hinders or otherwise to establish with John’s ability parent-child Accordingly, parent’s hold establish a parental rights. born, Additionally, relationship with both unwed bio- child. instant a child is his/her right any person persons plot, a we who logical to establish hold parents have scheme, conspire relationship plan, child. or otherwise to affir- with their To parent-child intentionally, willfully matively, preserve parental interest vis-a-vis his conceal child, biological regarding father information newborn child’s newborn unwed location, must, physical indicating of his birth or upon learning of existence where found, child, may be his commitment as- in whose care the child demonstrate response inquiries parent for responsibilities parenthood the child’s sume the care, information, coming liable participate held forward his/ rearing, support participation her in such con- of his newborn child or their civil meaningful spiracy.37 commencing to establish parent-child relationship with his child.35 does, fact, in Finding that John

Further, against person a the defendants for where a has cause of action concerning alleged a their of information re knowledge of information new concealment location, garding Baby Boy Conaty, now physical birth or we must born child’s or in allegations the indicating in care the child ascertain whether John’s where and whose found, state a may parent36 complaint in were sufficient to such be and child’s pleading person regarding Typically, which sets quires “[a] such claim. of his/her (1) location, ... physical [must] or forth a claim for relief contain child’s birth and/or plain may and statement of the claim care child be short where and whose his/her relief, found, may showing pleader that the entitled to person be held liable for is such (2) judgment if and for for the relief fraudulently concealing information a demand he/she intentionally, willfully to he himself entitled.” W. Va. affirmatively, and fails which deems relay any biological nancy him information emphasize We an fa- or to to other that unwed 35. pertaining proposed adoption of parental to a the child right ther’s to and maintain a establish required given to be to than that notice other relationship with does foreclose an his child not ap- biological pursuant father the child’s right biological unwed mother’s to terminate her Only statutory Smith, plicable mother, case when the 1308, or law. pregnancy. U.S. See Doe v. 486 person, affirmatively, any in- or other (1988) (refusing 909 108 S.Ct. 100 L.Ed.2d willfully tentionally, information in conceals permit biological enjoin un- unwed father to she, any inquiries response to a can or father's obtaining biological an wed mother from abor- Last, liability. person, subjected we other be tion). scope acknowledge nec- of this decision implementation essarily by of will be limited By "parent” biologi- we both the term mean 36. greater adoption standards which afford revised parents persons cal who have attained and those biological interest consideration of a father’s parents by adoption. virtue See the status of of relationship establishing See with his child. (1984) (Repl.Vol.1996). § W. 48-4-11 Va.Code 48-4-8, (1997) (Supp. §§ W. Va.Code 48-4-8b 1997) persons required (expanding to be class decision, rendering wish to com- In we proceedings). given pending adoption notice of First, scope. ment to its intended effect and Family §§ Code See also Cal. holding emphatically we reiterate that our is in Vol.1994) (1992) (Main (requiring notice abrogate biological way no intended to moth- adoption proceedings given pending be to "natu- options from various er’s freedom to select Vol.1994) (1992) (Main father”) and 7660 ral during preg- her the course of her available to adoption pending proceed- (requiring notice Indeed, by nancy. hope father”); is that care- our fervent Adoption given "presumed ings be narrowly fully defining S., boundaries for Cal.Rptr.2d Kelsey 1 Cal.4th this, liability imposition such as case (holding unconstitutional 823 P.2d 1216 scrupulously pre- biological more whereby these freedoms will be statutory unwed scheme Second, emphasize biological protected. we prevent served and unwed father could mother father, upon biological attaining presumed impose mother whose that we do not status adoption keep biologi- required duty child’s is nonmarital her consent affirmative child). preg- progress of her cal informed of the father 8(a). However, party P. long R. Civ. Rule when a sufficient deemed so as a cause of by alleges injured has been may action for fraud be discerned from the he/she another, or fraud fraudulent conduct of allegations “the contained therein. constituting ... circumstances fraud [must] pleaded though Fraud be well even particularity.” be stated W. Va. R. Civ. alleged conduct referred is not ex- 9(b). P. also by Rule See Funeral Serv. “fraudulent,” pressly provided to be Gregory, Community Hosp., Inc. v. Bluefield alleged facts are as constitute themselves, fraud in or are facts from fraud, (instructing that “in order to establish necessarily implied. which fraud will be clearly alleged the circumstances must be charged The acts are less fraudulent proved”), grounds on overruled other because word “fraud” or “fraudulent” Courtney Courtney, employed pleader is not in charac- (1993); Syl. pt. part, Hager S.E.2d words, terizing allega- them. other Corp., Exxon tion of facts from which the conclusion (1978) (“[FJraud must mistake be al- necessarily fraud is results sufficient. leged appropriate pleading partic- in the Am.Jur.2d Fraud and Deceit ularityU precludes the failure do so (footnotes omitted). 577-78 trial.”). proof during the offer of thereof Reviewing complaint filed The reason this deviation from court, initially the circuit note that general requirements pleading when use of the word “fraud” “fraudulent” to charged party fraud is both to allow complained describe the conduct would alleged to have committed fraud to defend Nevertheless, preferable. have been we con- charges permit such and to the tribunal hear clude the complaint’s allegations that set ing the matter to conduct a full review of the forth jury sufficient facts which could 4, complaining party’s pt. Syl. claims. have found fraudulent conduct have been Co., part, 86, v. Emax Oil Croston 195 by Thus, committed the we defendants. find (“The plead 464 S.E.2d 728 failure to charging that the averments that the defen- particularly constituting the circumstances intentionally, dants purposefully, and mali- only fraud not inhibits full review of the ciously prevented obtaining any John from by substance of the of claim fraud this Court pertinent Baby regarding Boy information ...; appeal precludes on such failure also Conaty’s subsequent pre-adoptive or birth supportive the introduction of evidence of placement they that continued a scheme any general allegation of fraud contained in impair his frustrate efforts to ascer- complaint[.]”).

the tain sufficiently the whereabouts his son of stated a of cause action for fraud. Accord- Nevertheless, requirement that ingly, we find that the circuit court did not particularity” fraud be “stated with does not upholding err in John’s claim.38 automatically complaint fatally render if magic flawed word “fraud” has not 2. with Tortious Parental Re- Interference certainly been invoked. While better lationship practice stating when a cause of action for fraud tois include the word “fraud” defendants next suf contest the The complaint, thereby ensuring ficiency that both alleging they of John’s claim that defendant and the court tortiously are aware of the parental interfered with his rela asserted, complaint claim generally tionship Baby Boy Conaty. They will urge with Having omitted)). sufficiency Furthermore, determined the of John's do not defendants fraud, appear claim for challenge sufficiency need not further review this of such evi The matter. issue whether appeal. of the record evi- dence their See adequately Charleston, Higginbotham dence City satisfied the elements of a v. properly of action ("Assignments cause for fraud was within the 204 1 error province jury. 8B argued appellant’s Michie's Jur. Fraud and that are not in the brief ("Generally, waived.”), Deceit at 433 fraud is a deemed this to be Court over question grounds fact to City be determined ruled on other O'Neil v. Par (footnote (1977). from all the kersburg, circumstances of the case.” 237 S.E.2d 504

133 custody his concluding that John was entitled to son’s that that circuit court erred from, Baby sufficiently grounds Boy Conaty was complaint stated that abducted John’s theory leave, Finally, compelled because the the defen- for relief on this John. applicable ability law. Acknowl maintain dispute misstated dants John’s this on lan purported reliance edging he John’s and Anne had cause action where both guage 700 of the Second Restate of Section Baby Boy equal vis-a-vis custodial Co- Torts,39 entreat this the defendants ment of naty.40 minority follow the decisions Court to replies that he has stated a valid John recog jurisdictions, which have refused to upon obtain relief from the claim which to nize claim tortious interference alleged tortious interference with defendants’ parental relationship based their deter Baby Boy parental relationship with Co- recovery such tort-based minations naty. Although cause novel to the this is to the best interests of would be detrimental State, jurisprudence majority of this these at the center of children involved jurisdictions country throughout Citing Whitehorse v. Critch controversies. recognized Citing, e.g., such claim. Hinton field, Ill.App.3d 144 Ill.Dec. 494 98 Hinton, U.S.App. 141 v. 436 F.2d D.C. Dunn, (1986); v. N.E.2d 743 Larson (D.C.Cir.1970), 492 F.2d aff'd, (Minn.1990); v. Gam N.W.2d 39 Zaharias (D.C.Cir.1974); U.S.App. D.C. 403 Kunz v. mill, (Okla.1992); v. P.2d 137 Cosner Deitch, (N.D.Ill.1987); F.Supp. 679 (Wyo.1994). Ridinger, 882 P.2d 1243 (E.D.Wis.1982), F.Supp. Lloyd Loeffler, v. however, If, recognize a this Court should (7th Cir.1982); 'd, 694 F.2d 489 D & aff action tortious interference cause of Constr., Pace, Inc. D Fuller v. CATV parental relationship, the defendants assert (Colo.1989); Engel, Plante P.2d 520 tort contained the definition this (1983); N.H. 469 A.2d 1299 Bedard apply to the facts of this Section 700 does Hospital, 89 R.I. 151 A.2d Notre Dame Further, they submit that has case. John urging adopt Court for tortious failed to state a cause action action, suggests this cause of satisfy he unable to interference because existing with the law of a claim is consistent required claim. two of such a elements State, recognizes preeminence which First, represent that this tort the defendants custody right of parent’s of a his/her who are only is available to those individuals child, unfit provided parent is not parents thereby to entitled custodial abandoned, transferred, waived, has not legal custody. As their child’s sole John relinquished custodial otherwise his/her been, not, parent custodial and never has Wise, v. 158 rights. Citing Hammack W.Va. to Baby Boy Conaty, not of he is entitled (1975). 343, further 211 118 John Second, theory. recovery seek under this that, by proposing position re supports his 700, written, provides relief it is Section as rights enjoyed by gardless of decisional damages by the abduction or occasioned “[ojnce born[, Anne, baby both] the is of a child from compelled removal his/her rights.” baby and the father legal to custo- parent who is entitled his/her Additionally, while concedes that John dy. indicate that the Again, the defendants neatly fit into the of case do not appeal support facts this do not underlying facts this contained “tortious interference” is either definition of claim there no indication John’s as affections, (Second) is for which no relief of a child’s text of Restatement 39. See for the infra (1976). available, § of has been 700 as this cause action Torts State, contend this the defendants abolished in alternatively suggest that 40. The defendants erroneously permitted John that the circuit court upon but Section 700 John's claim is ba’sed Citing W. Va.Code 56- his claim. to maintain Restatement Section 699 of Second 2, (Repl.Vol.1997); Weaver v. 3-2a (Second) § 699 of Torts Torts. See Restatement 556, Corp., W.Va. 378 S.E.2d 180 Union Carbide more, who, (1976) ("One alienates from without Wallace, 4, (1989); Syl. pts. v. 1 and Wallace 105 child, parent whether its affections of (1971), overruled 184 S.E.2d 327 age, child's is not liable minor or full Goins, 184 grounds Belcher v. on other parent.”). As in Section the claim enunciated (1990). 830 nothing claim for alienation more than a 699 is 134 that, Lastly, despite he suggests nevertheless asks this Canada. Section John claim, view, contrary recognize stating permit- his that defendants’ he

Court to is automatically ted to precedent lack of does not fore- assert claim tortious interference though theoretically even he recognition of a both and Anne close cause of action to equal rights remedy wrong custody. had to their that has been son’s Un- done. Cit- case, represents der the facts of Cal.App.2d 221 John Rosefield, v. Rosefield Anne, realistically, that he Finally, did not have Cal.Rptr. 34 479 re- equal parental rights Anne arguments because effective- sponding to the defendants’ that ly prevented establishing him from and as- requisite he has not satisfied all of the ele- serting rights, elevating his action, thus her own prosecute ments this cause of John Therefore, rights above his. fact, because has, he met these asserts that re- parties actually unequal rights, had a re- First, as quirements. John indicates that there conduct, sult of the defendants’ John should judicial requirement no that he have a permitted Citing be to maintain claim. his awarding legal custody decree him sole Rosefield, Cal.App.2d Cal.Rptr. 221 34 Conaty Baby Boy order maintain his 479. Rosefield, 221 Citing Cal.App.2d claim. Second, Cal.Rptr. disputes 34 479. John by John, The cause of action asserted charge Baby Boy Conaty defendants’ parental tortious interference with rela- from, was not abducted or otherwise com- tionship, impression is a matter first be- leave, pelled regard, John. In this Nevertheless, recogni- fore this Court. states the defendants orchestrated tion of appears this cause of action prevent scheme to him from establishing a adopted by majority jur- standard of other relationship and, given with his infant son his isdictions’ with courts that have been faced days, age effectively son’s tender two com- issue.41 order to determine whether pelled the child to through leave father this Court should follow the lead initiated placement pre-adoptive boy jurisdictions, their into our necessary sister it is us See, Wood, e.g.,DiRuggiero Rodgers, rights); v. 743 dial F.2d 1009 Wood v. 338 N.W.2d (3d Cir.1984) (Iowa 1983) (en (construing banc) Jersey law (determining of New tort would allowing provide remedy cause action for tortious interference prob effective and deterrent to parents’ Abram, rights); snatching); with nett, custodial Bennett v. Ben- lem of child v. Washburn U.S.App.D.C. Ky. Ky. 682 F.2d Rptr. L. S.W. (D.C.Cir.1982) (recognizing applicability (allowing parent damages of tort recover occasioned child); Lloyd Loeffler, to relatives of minor unlawful abduction or detention of his/her (7th Cir.1982) child); Terebelo, (surmising Spencer F.2d 489 Wisconsin minor 373 So.2d 200 permit law would (La.App.1979) (recognizing cause action for tortious cause of action in relationship); Anony- interference relationship); with custodial tort for interference custodial (Ala.1995) Dean, Anonymous, mous v. 672 So.2d 787 Hare v. 90 Me. A. (listing (upholding elements of tortious interference with cause of action for interference action); Mendel, custody child); cause of parent’s custody Matter 897 of minor Mi his/her of (Alaska 1995) 294, (impliedly allowing P.2d 68 Nemethvargo, Md.App. main- chaels v. 82 571 A.2d (1990) tenance of claim for (recognizing tortious custodial interfer- 850 of tort cause action in ence); 431, Rosefield, Cal.App.2d v. parental 221 relationship for interference with be Rosefield (1963) Cal.Rptr. child; (explaining 34 parent 479 limiting rationale for tween and minor his/her tort); Constr., adopting D recovery & D Fuller expenses CATV Inc. to loss of child’s services and Pace, (Colo.1989) (en banc) (bas- necessary v. 780 P.2d 520 preclud to ensure child’s welfare and ing recognition pre-existing ing recovery of tort damages society compan on state crime of for interference); Murray, ionship); Murphy of custodial Mathews v. England, v. I.S.K. Con. Newof 216, (1960) Inc., 842, Ga.App. (permit- (1991) 101 113 232 409 Mass. 571 N.E.2d 340 plaintiff ting damages (recognizing to maintain claim for aris- cause of action for tortious interfer ing plaintiff’s from parent-child relationship defendant’s grounded interference with ence with child); Martin, custody (Second) of his minor Shields v. law common § and Restatement Torts of 132, (1985) (1976)); Brown, 492, (permitting 109 Idaho 706 P.2d 21 700 v. 338 Brown Mich. recovery damages (1953) of for tortious 61 (adopting language interference N.W.2d 656 of relationship), superseded by (1938)); with custodial statute Restatement of 700 Torts Kramer v. Leineweber, (not Biological, as noted in v. (Mo.App.1982) Doe Cutter a Div. 642 S.W.2d 364 Miles, Inc., (D.Idaho 1994); F.Supp. ing 852 909 long-standing recognition Missouri's tort Crum, 660, Montgomery interference); v. parental 199 Ind. 161 N.E. 251 action for or custodial (1928) (permitting Co., to Tavlinsky mother cause Ringling maintain v. Bros. Circus Neb. 113 damages 632, resulting (1925) action for from defendant’s N.W. (acknowledging 204 388 that parental parents tortious generally wrong- interference with her and custo- have cause of action for

135 parental interference with prof- of this claim for “tortious the nature first to understand whether and then to ascertain fered claim relationship”.43 to or custodial42 Pursuant impede embrace- existing our our law would Restatement, “Causing [a] Minor Child cause. ment of this Home[,]” “[o]ne to Leave or not to Return who, knowledge parent with does (Sec 700 of the Restatement Section consent, ond) compels or or the elements of a abducts otherwise of Torts articulates child); custody of children at issue in such deprivation of their minor to best interests ful 213, resulting marriage disputes Engel, 469 A.2d 1299 from dissolution of 124 N.H. Plante v. Gammill, proceedings); (1983) v. 137 (extending liability to those con Zaharias 844 P.2d for tort (Okla.1992) tort); (rejecting liti- tort because increased spiring Casivant v. Greene Coun to commit Inc., gation contrary Community Agency, would be to best interests of ty 652 N.Y.S.2d Action involved). (1996) (finding generally tort See 652, Marshak v. to be children 234 A.D.2d 818 Marshak, drawn), (1993) aff'd, 226 628 A.2d narrowly 90 N.Y.2d 665 Conn. 964 (1997); ruling recogni- (agreeing 688 1034 LaGre with trial court’s N.Y.S.2d N.E.2d Gordon, N.C.App. v. 46 264 S.E.2d 757 tion of cause of action for custodial interference nade (1980) likely right law (finding had to would be consistent with Connecticut mother maintain finding parental with or but facts insufficient to maintain such claim tortious interference for Lis, had, case); particular relationship con in this Bartanus v. where father claim custodial tract, (not (1984) Pa.Super. 480 A.2d 1178 to mother his common law 332 surrendered child), custody adopting rejecting right dismissed, parties' appeal expressly or tort of interfer- minor to denied, custody by "harboring” 300 N.C. 270 with minor child review ence consent; (1980); determining parent’s Bayer, v. 32 S.E.2d 109 Clark Ohio St. without his/her alleged Rep. (permitting were lawful instead facts insufficient 30 Am. 593 plaintiff claim for because not dem- custodian of minor child maintain damages resulting state such claim had wrongful custody inter son at from another's onstrated that he had lawful of his Blackburn, interference); relationship); alleged custodial v. ference with such White time of (neither Magnuson, (Utah App.1990) specifi- 282 578 P.2d McBride v. Or. 787 P.2d 1315 (en banc) jurisdic (following definitively other cally adopting rejecting nor cause tort); recognizing v. Notre Dame (1959) parental tions Bedard with or action tortious interference Hosp., (holding determining A.2d 690 relationship; 89 R.I. facts did not custodial may bring injury case). parent of action for cause in this establish claim for interference child); relationship parental with his/her his/her relationship protected by phrase 42. We (S.D.1991) Hershey Hershey, v. 467 N.W.2d encompass the alternative to cause of action in (recognizing cause of action in tort for interfer "parental relationships” re- and "custodial both relationship, specifically parental but ence with manner, "paren- lationships”. view In this we phrasing claim as for alienation affec one fostered, relationship tions); relationship” or (Tex. as tal Oglesby, 721 v. S.W.2d Silcott commenced, by biological as a 1986) an unwed father by parent (adopting cause of action asserting prerequisite parental his broader relationship with tortious interference custodial relationship” (Second) rights. By "custodial custodial applying of Torts Restatement O’Dea, parent (1976)); relationship mean the between Magnuson § 700 v. 75 Wash. parent enjoyed by physical has or (allowing recovery who child 135 P. custody damages arising legal child. tortious interference with his/her see, e.g., McDougald relationship). But custodial will be of tortious interference Our discussion (refus Jenson, (N.D.Fla.1984) F.Supp. parent's with a limited tortious interference law, recognize, Florida cause of under relationship parental or custodial with his/her parental with action for tortious interference distinguished as from tortious interference child 'd, (11th relationship), 786 F.2d custodial Cir.1986); aff parent’s inter- visitation tortious Simmons, F.Supp. Simmons parent’s results in a loss of ference which his/her (E.D.S.C.1941) (interpreting South Carolina law i.e., companionship, parental society and child’s prohibiting spouse of action one cause the two For further discussion of consortium. against spouse for the other interference by types interference not addressed of tortious complaining relationship between custodial spouse decision, Note, Recovery Inten- Tort our see upon sanctity parties' and child based for Rights: A Nec- with Visitation tional essary felicity” promotion and child’s and of "domestic Interference Alternative, J. L. 657 32 U. Louisville Fam. interests); Critchfield, 144 Ill. best App.3d Whitehorse (1993-94) (discussing with tortious interference N.E.2d 743 98 Ill.Dec. Love, visitation), C. Tortious and Jean (declining recognize of for to cause action Interfer- Relationship: Loss the Parent-Child parent’s custody ence with and interference with tortious of Society Companionship, Injured and Person’s determining Legislature appropriate an to be more (1975-76) (discussing tortious L.J. body 51 Ind. implement for such inter to civil sanctions Dunn, (Minn. society companion- ference); and child’s interference with Larson v. N.W.2d Note, 1990) Recovery ship) Loss (explicitly rejecting and Torts—Parent’s tort claim for father’s for Child, Society Va. Companionship 80 W. rights; with custodial and interference intentional finding of of (1977-78) (same). contrary to be L.Rev. proposed cause of action parent legal- may to parent induces a minor child leave a liable to other for be the the custody ly or return to its not to to by judicial entitled of abduction his own child if him, parent the after it has been left is custody decree the sole child the has subject liability parent.” the Restate- to to parent. been awarded to the other (Second) (1976).44 § ment of Torts (Second) § Restatement of Torts 700 cmt. c. permits a This cause of action to Section tort, Refining, clarifying, adopting and this be the has maintained both when child been jurisdictions precise various have established forcibly parent’s abducted from custo- his/her in determining tests to be used whether one dy prevented and when is from re- he/she tortiously pa- has interfered another’s custody. turning parent’s to his/her rights explained rental or custodial and have Section, Under the rule stated an underlying the rationale their decisions to may by parent action be maintained the recognize example, this cause of action. For custody who is entitled to the of minor Supreme Alabama, reviewing the Court of by against child one who force abducts the by plaintiff a claim parents charging the that home, child its or one from who induces juvenile parents a male and his had assisted knowledge to child leave its home with plaintiffs daughter running minor parent So, that the has not consented.... away from home had concealed her too, against action can be maintained plaintiffs, recognized whereabouts from the who, knowledge one that the child is that away against from home the will of the Section 700 does not create a cause new parent, imprisons or induces the child action unknown to common law. ... not return to home. [Rather, accurately i]t reflects common (Second) § Restatement Torts 700 cmt. a principle right law “parents that have a (1976). However, either under the removal care, custody, companion- services and theories, or “[t]o retention become liable un- ship children, of their minor and [that] der the rule stated in this Section for induc- they when wrongfully deprived are thereof home, ing a necessary child not to return it is another, by they action therefor.” away the actor know that child Anonymous v. Anonymous, 672 So.2d against parent.” will home Steward, (Ala.1995) (quoting v. Gold Med (Second) § Restatement cmt. Torts b. Shows, 586, 14 al 244 Ala. So.2d Governing all claims tortious interfer- (1943)) (additional omitted). citation The parental ence with relationship, or custodial proceeded clarify requisite then though, underlying paren- is the custodial elements for claim of tortious interference: Thus, tal parties involved. To claim state a of intentional or malicious parents jointly [w]hen the are law enti- interference, [parent] custodial only need custody tled to earnings plead tending facts show: child, brought against no action can be one “(1) parents who abducts or induces the [S]ome active affirmative effort parent child to leave the other.... One [the] defendant detract the child clear, language 44. The suggest offending party the Restatement is does not that the has further, emphasize that the asserted claim parental authority removed or custodial from the contemplated by John and this Court is one for parent. complaining recognize We further tortious interference for alienation of longer "alienation affections” is no a valid affections, suggest. as the defendants These two cause of action this State. See W. Va.Code distinguished causes as follows. "Tor- ("Notwith- (Repl.Vol.1997) 56-3-2a parental tious interference with rela- or custodial standing provision other of law the con- tionship” parent complaining intimates trary, no lie civil action shall or be maintained in deprived parental has been or custodi- his/her affections, State ... alienation of unless words, rights; al in other but tortious for the prior such civil action was instituted effec- interference, complaining parent would be 6, 1969].”). tive date of this [March section See able to exercise some measure of control over (Second) § also Restatement Torts cmt. 699 a care, rearing, safety, well-being, child's his/her etc. (1976) ("For the mere alienation of child’s contrast, By "alienation of affections" con- affections no action be can maintained the only parent enjoy 138 policies place they not in an high

The accorded filiation stems ness which inter- est, honest, whereby giving their from the material bond services truthful re- advice, quested other that provided parent to each other and or factors show are proper.” recognition child from that there is a the interference was but parent in sanctity the union and child Center, v. Tiernan Charleston Area Medical and that transcends economics deserves 135, 148-49, 506 203 W.Va. S.E.2d 591- respect. the utmost Because this relation- Torbett, Syl. (quoting pt. ship intimately is so connected with the 166). W.Va. 314 S.E.2d parent’s person, there we hold where Finally, in Thacker Coal & Co. v. Coke par- is an intentional interference with a Burke, 53 S.E. child, custody injured of his or her an ent’s (1906), permitted injured we an party to re- parent remedy is entitled to a that com- damages cover for tortious interference pletely compensates him or her. relationship: wantonly a contractual one “[i]f (citations Id., omitted). 469 A.2d 1301-02 maliciously, whether for his benefit own not, person or induces a to violate his con- above, jurisdictions Unlike the referenced person injury with a tract third of that previously recognized has not this State (Internal person, quo- third it is actionable.” parental tort of interference with or custo- omitted). Syl. tations citation But However, relationship. dial the law of West cf. pt. Grange Shrewsbery v. National Mut. explicitly adopted has interference Co., Ins. torts in other For example, contexts. (1990) (“It impossible party for one to a Barone, Syllabus point Barone against party contract to maintain the other (1982), 407, 294 W.Va. S.E.2d 260 held we to the contract a for claim tortious interfer- beneficiary may that “[a]n intended for sue contract; parties’ ence own each testamentary tortious interference awith be- agreed party has to be bound the terms of quest.” itself, may the contract not thereafter addition, very recently reiterated tort punish party use a action to other the standard enunciated for the tort inter- rights actions that are within its under the employment relationship ference with contract.”). survey suggests This brief originally Syllabus point was announced recognition of interference torts is not Wheeling Torbett Dollar Sav. & Trust jurisprudence novel to the of this State. Co., (1983): Thus, may acceptance be said that the of a prima proof “To establish facie of tor- cause action for tortious interference with interference, tious plaintiff must show: parental or relationship custodial sim- would (1) existence of a contractual or business ply logical progression jurisdic- abe of this relationship expectancy; or pre-existing tion’s tortious interference law. an intentional act interference Moreover, Legislature of this State party expec- relationship outside that or codified, officially offense, has as a criminal tancy; legal guardian’s custody interference with a (3) proof that the interference caused of minor child. W. Va.Code 61-2-14d sustained; the harm (1984) (Repl.Vol.1997) specifically recognizes (4) damages. “[cjoneealment as a crime this State or removal of minor child [a] [his/her] from plaintiff prima case, “If a makes a facie person or [a] custodian entitled to visi- prove justification defendant privi- tation”: lege, affirmative defenses. Defendants are (a)

not negligent Any person conceals, liable interference that is who takes or intentional, rather than if they show removes a minor child in violation of legitimate competition defenses deprive between court order and with the intent themselves, plaintiff and their in- person financial another lawful custody or visita- business, party’s terest guilty felony, and, induced tion shall of a welfare, responsibility thereof, their for another’s impris- conviction shall be their intention to penitentiary influence busi- another’s oned than less one

139 § The rea- years, in the discre- 18-3-304 Court then five or nor more than court, in the imprisoned be soned: shall tion year fined county jail than one or not more it is in this Based on the fact that a crime dollars, or more than one thousand his state to take a child from or her lawful imprisoned. fined and both deprive custodian and to lawful custo- (b) Any this section person who violates child, custody recognize dian of of a child doing in removes the minor so parent-child tort of interference with the minor child or conceals the from State (Sec- relationship in set forth Restatement felony, guilty be of a in another state shall ond) (197[6]). § of Torts 700 and, thereof, im- be shall conviction Spencer P.2d at 524. also v. Terebe 780 See than prisoned penitentiary in not less (con lo, 373 So.2d 202 (La.App.1979) years or fined not nor more than five one cluding penal prohibiting statute crimi dollars, or both more than one thousand interference, nal custodial La.Rev.Stat. imprisoned. fined and (1966), legal § 14:45 “forms basis of (c) sec- It shall be a defense under this by” offending duty parent owed reasonably believed tion that the accused complaining parent); Oglesby, v. 721 Silcott necessary preserve the action such (Tex.1986) (recognizing 290 tort S.W.2d child. fail- welfare of minor The mere interference, in cause of action for custodial expira- ure to return a minor child at the upon existing of part, based criminal offense any custody of lawful or visitation tion (citing Tex. custody interference child period deprive the intent to anoth- without (Vernon 1974))). § Ann. 25.03 Penal Code custody person or visitation er of lawful Ill. Critchfield, But see Whitehorse rights an under shall not constitute offense App.3d Ill.Dec. 494 N.E.2d 743 this section. (1986) Legislature (deferring imposition of addition, in anyone abet[s]” who or “aid[s] penalties for custodial interference be civil interference, de- of as an offense custodial already Legislature had established cause 61-2-14d, § is also

fined W. Va.Code (citing penalties for such an criminal offense criminally liable: (1985))); 10-5,10-6 paras. Ill.Rev.Stat. ch. any way knowingly any person If in aid (Minn.1990) Dunn, Larson v. 460 N.W.2d 39 in any person commission or abet other (rejecting inter parental tort of custodial in four- of offense described section Legislature’s partially because ference teen, fourteen-a, or fourteen-d fourteen-c penalties, in provision criminal Minn.Stat. 61-2-14, 61-2-14a, 61-2-14c, § § (1986), [§ abduction childrén § 609.26 article, § acces- of this either as 61-2-14d] parent); custodial Zaharias v. Gam fact, accessory sory (Okla.1992) after the mill, (declining before or 844 P.2d 137 aiding abetting shall be person interference, so part, such adopt tort of custodial in the commission of guilty principal penalties appli existing criminal because punished in the and shall abducting offense persons minor children cable (1991))). as is and to the same extent § same manner (citing 21 Okla. Stat. Cf. person provided sections for the said Cal.App.2d Rosefield, Rosefield (1963) who committed the offense. 433, Cal.Rptr. (noting that ab § 49 “forbids the Civil Code Cal. 61-2-14e, part, Va.Code W. parent” ac from a child duction (Repl.Vol.1997). persons violating this knowledging that third adoption of At least one state has based its committing tortious interfer section and/or parental or cus- tort of interference complaining to the ence can be held liable fact relationships, part, upon todial arising interfer damages from the parent it, too, inter- custodial had criminalized ence). In D & D Fuller CATV Construc- ference. (Colo.1989) Furthermore, long-standing tra- tion, Pace, we have P.2d Inc. v. parents to (en banc), respecting dition Supreme Court of Colorado See, Syl. custody e.g., children. recognized the crime of their that that noted state part, ex rel. Harmon v. Utter- pt. State See Colo.Rev.Stat. custodial interference. back, right by permitting recovery damages 108 S.E.2d 521 (“The custody of right parent of a tortiously when one interferes with such a child, being founded in nature and See, or her relationship. e.g., Anonymous v. Anon by and stat- recognized wisdom and declared (Ala.1995) ymous, 612 (noting So.2d 787 that ute, right is respected unless such will Restatement 700 common reflects law view transferred, abandoned[J”), or relinquished parents right custody that have to of their 3, grounds by Syl. pt. oveiruled on other I.S.K, children); Murphy v. Con. New of Collins, 27, v. 199 W.Va. 483 Inc., Overfield England, 409 Mass. 571 N.E.2d 340 (1996); 27 State ex v. rel. Neider (discussing parent’s parental interest (“The (1887) Reuff, 2 29 S.E. 801 W.Va. relationship custodial with child in his/her right custody or of the father mother to the context of common law cause of action for child, right, their is not an of minor absolute relationship); with interference such Plante to be accorded to them under all circum- (1983) Engel, v. 124 N.H. A.2d stances, for it be denied to of either (permitting recovery damages for inten them, court, appears if it to the that parent’s tional interference with custodial re right, parent otherwise entitled to this ‘is lationship upon high with child based his/her ”).46 In regard unfit for the trust.’ this ly regarded right parent custody to have declared that child); Bedard Notre Hospi v. Dame his/her concerning custody the law [i]n of minor tal, R.I. (basing A.2d children, firmly no rule is more established right recovery parent’s upon legally to tort right than that parent of a natural to protected right custody to child his/her custody of his or her infant child is statutory founded common law and enact paramount person; to that other it ments). personal liberty is a fundamental protected by guaranteed the Due Claus- Process recognition Based prior es of the West and United States by other tortious interference claims Constitutions. Court, providing penal our criminal statutes Willis, Syl. pt. In re W.Va. interference, remedies for unlawful custodial (1973). S.E.2d 129 We also have articulated high regard and the esteem with which we parents maintain to relation parent right “[a] has the natural ships children, with their we find that it is custody and, her his or infant child proper recognize, as a valid cause of ac parent person .unless the is an unfit be tion, claim of tortious interference as misconduct, neglect, immorality, cause of by Accordingly, asserted John. we hold that abandonment, duty, other or dereliction of parent47 may maintain a cause of action or right, has waived or agreement against tortiously one who interferes with the transferred, permanently or otherwise has parent’s parental relationship or custodial relinquished custody, or surrendered such child, right with minor which accrues his/her right parent custody the instant the child is born. recognized his or her infant child will be enforced Syllabus, courts.” hold, additionally We consistent with Hancock, Kiger State ex rel. prior holding point our Syllabus 2 of Tor 404[,] (1969). 168 S.E .2d [798] Co., Wheeling bett Dollar &Sav. Trust pt. Wise, Syl. Hammack v. (1983), S.E.2d 166

211 S.E.2d 118 prima make out a claim for tortious facie Identifying preeminence parental parent’s of a interference with or custodial rela right enjoy parental tionship, or rela- the complaining parent custodial must dem child, tionship jurisdic- with complaining parent various onstrate: has his/her attempted tions have protect right further parental to establish or maintain or parental rights 46. For supra further discussion of 47. See note 36 definition of the II.B.l., supra, this State see Section and Section "parent” term as used in this decision. H.C.3., infra. (ie., relationship minor relationship dial with the child with minor custodial his/her child; relationship party identity biological outside of the as to of child’s mistake complaining parent parents paternity yet between the has not been where his/her established).48 intentionally with com- child interfered formally parent’s parental custodial rela- plaining or Lastly,

tionship by removing parent or we hold that a child his/her detaining returning charge parent the child from cannot child’s other his/her parent’s complaining parent, parental without interference with tortious consent, preventing otherwise com- relationship parents if both custodial parent exercising pa- (as from plaining substantially equal equal rights, rights his/her or rights; the rental or custodial outside in the a child the case of nonmarital where party’s interference caused harm intentional putative biological to father seeks establish a parent’s or complaining parental the custo- to meaningful parent-child relationship his with child; relationship with dial his/her and, relationship child until such a has been damages from such interference. resulted commenced, rights does have identical to mother), biological those the child’s to of Further, we that a hold where parental establish or maintain a or custodial prima presents a case of parent tor facie words, relationship In with their child. other parental tious interference with or his/her custody judicial when no award of has been relationship, party interfering custodial the thereby parent, causing made to either relationship may with such assert affir rights parents’ parental to be and custodial ie., justification, the party mative of defense equal, no cause of action for tortious interfer reasonable, possessed good a faith belief that by parent ence can be maintained one parent’s parental interference with or Likewise, parent. against where the other relationship necessary pro custodial was to judicial awarding entered no decree has been mental, physical, or tect the child from emo custody a nonmarital child to one or the of harm, contemplated by tional as W. Va.Code parents, biological child’s other of the (Repl.Vol.1996). A party 49-1-3 biological complaining parent cannot assert a held liable for tortious inter also cannot be parental with claim of tortious interference parental ference with a or custodial relation relationship against other negligently, if rather or custodial ship acted than he/she reasonable, biological intentionally; possessed good parent.49 a proper faith belief that interference may Having that (ie., established John original knowledge no or of an or notice a tortious interfer properly assert claim for awarding paren superseding judicial decree relationship Baby parental ence with parent); with his rights complaining to tal or custodial Boy Conaty, whether we must now ascertain reasonably good or faith believed that sufficiently right complaint a his stated this cause complaining parent not have did preceding in the As we iterated parental maintain or custo- action.50 to establish or preponderance the evi- 48.In Instruction Number their Plaintiff's defenses amended, dence. circuit indicated that the added). (Emphasis John’s defendants could offer defenses to claims of tortious interference: ruling, factually appro- 49. We reserve for a more your The instructs the that Court case, may priate parent one the issue of whether consideration of whether or not an intentional against state a claim tortious interference act of interference was committed fendants, the de- supe- parent parent when has achieved other one them, you are instructed or judicial rights through a rior decree custodial act intentional of interference is one custody. preventing which a substantial factor in is relationship occurring. fully act explained An is done in Section will be more As intentionally, deliberately, II.F., recognition infra, if it done with cause we limit our of this rights purpose interfering permit only parents with the of a of minor chil- of action to party. pursue a for tortious interference dren to claim you plaintiffs parental relationship. This cause [sic] If find estab- with their wrongful grandparents minor lished their claim for interfer- action is not available to [sic] evidence, allegations upon preponderance of tortious interference ence children relationship. grandparental prove to their then with burden shifts defendants section, acquire rights pleading parental sets generally “[a] which order sufficient right ... ... him subsequently [must] a claim for relief contain assert forth enable plain custody statement of the claim boy. a short and no At time did either showing pleader is relief.” that the entitled to parent superior parental obtain or custodial 8(a), in In part. Rule Va. R. Civ. P. W. rights as no court was ever order entered manner, allegations of “fraud mis- while granting either or Anne John exclusive custo particularityt; with m]al- take shall be stated dy of their son. Because both Anne ice, intent, knowledge, and other condition substantially equal rights had to have may person generally.” mind of a be averred parental relationship Baby or custodial 9(b), part. Va. R. More- Civ. P. Rule W. Conaty, Boy John could not assert a claim over, challenge in order to withstand a against for tortious interference Anne. complaint fails state a claim fact, prosecution of such a claim between granted, complaint relief which parents rights co-equal effectively per plaintiff prove “the must indicate that can parent parental mits one elevate his/her support ... facts in of his claim which would custodial above those of the other Syl., part, him entitle to relief.” John W. leaving parent rather a than such determina Co., Texaco, Inc., Lodge Distributing Inc. v. judiciary equipped tion to resolve such (1978) (inter- 608, 245 S.E.2d 157 See, disputes. e.g., custodial v. Garska omitted). quotations Dur- nal and citations (1981) 59, McCoy, 167 278 W.Va. S.E.2d 357 below, ing proceedings court the circuit (defining factors in to be considered complaint properly determined that John’s child). determining custody Therefore, a stated claim for tortious interference. in permitting find that the circuit court erred pertinent authority Given our review against assert a John to Anne claim of tor- above, holding and our stated we find that parental interference rights. tious with in permitting the circuit court erred John to However, below, explain as we our decision maintain his tortious claim interference regard in necessitate does not the rever expressed against Anne. As in the comments jury’s sal of the verdict. to Restatement and in deci- 700 echoed our sion, parents equally, when both are or sub- By contrast, John can state a claim stantially equally, entitled to or establish against for tortious interference the remain parental relationship maintain a or custodial defendants, ing Conaty Dr. and Mrs. and child, with their neither of them can maintain indicates, As our holding parent Brian. a against a cause of action the other for tor- deprived parental who has been or his/her relationship. tious interference with relationship gen custodial with child his/her erally prevented not asserting is from underlying The circumstances this case against nonparental claim other relatives suggest that John and Anne had substantial- Instead, appears child. equal that these ly Baby Conaty. Boy vis-a-vis his/her Anne, child, types of tortious biological as the interference are mother of the claims undisputed right quite against often had asserted maintain a custo- child’s relationship John, aunts, grandparents, dial with her son. as the and uncles who have father, putative biological right participated had a to es- removal retention parental relationship tablish complaining parent.51 with his son the child from the See, Dawkins, e.g., (1963) Fenslage v. (charging paternal grandfather 1107 629 F.2d with tor- Cir.1980) (5th law; interference); Crum, (applying asserting Montgomery Texas tious v. 199 against paternal tortious (alleging interference claim 161 N.E. Ind. 251 tortious aunt, uncle, grandparents paternal by paternal grandparents pater and and interference and nephew); uncle); Brown, Kajtazi Kajtazi, F.Supp. v. 488 15 and nal aunt 492, Brown v. 338 Mich. (E.D.N.Y.1978) law; (applying naming (claiming New York 61 N.W.2d 656 tortious pa by paternal as defendants to grandparents pater tortious interference action interference and uncle); grandfather paternal Lloyd uncle); Hayes ternal Reynolds, and and nal aunts 579 Loeffler, (E.D.Wis.1982) F.Supp. (apply (Mo.App.1979) (bringing 539 998 S.W.2d 119 cause law; maintaining Wisconsin against tortious interfer action tortious interference maternal 'd, against aunt); grandparents), ence grandparents claim maternal and maternal Plante v. En aff (7th Cir.1982); (1983) (com gel, 694 F.2d 489 v. Rose N.H. 124 469 A.2d 1299 Rosefield field, Cal.Rptr. 34 Cal.App.2d plaining 221 431 of tortious interference maternal Milstead, Zando, Inc., Thus, precluded prosecuting from Martin & W.Va. John not is (1990) (“ against claim ‘It is his tortious interference 390 S.E.2d remaining generally recognized only defendants. that there can be damages recovery wrong one for one sufficiency Turning now injury. recovery damages not Double is adequately he complaint, we find that John’s permitted; permit the law does not a double against Brian and stated claim defendants single injury. A plaintiff satisfaction for a Conaty tortious Dr. and Mrs. interference damages twice for recover the same relationship parental or custodial with his injury simply he has two legal because theo- Boy Conaty. Allegations that the Baby ” (quoting Syl. pt. ries.’ Harless v. First willfully, intentionally “knowingly, defendants Fairmont, Nat’l Bank W.Va. conspired to wrongfully [John’s] and hide (additional (1982)) S.E.2d citations omit- place child him child for ted)); Syl. pt. part, Thornton v. Charles- depriving adoption, purpose for the [John] Ctr., Area ton Medical right parenthood” “[t]he (“At law, common an in- knowingly, done inten defendants’ acts were jured party may only one full recov- tionally, maliciously in specific and with the ...”). Crowder, ery. v.Orr Cf deprive right par tention of his [John] (1983) (“Where comfort, love, society enthood general verdict in- returns a case child,” sufficiently ap companionship of his liability volving issues two or more and its prised defendants that was com these evidence on supported verdict at least plaining alleged of their interference with his issue, reversed, one will not be the verdict parental relationship Baby Conaty. Boy requested unless the has and been defendant issue, In our of this we have de decision jury the right refused the to have make could not a claim termined that John state special liability findings as to his on each of against for tortious interference with Anne issues.”). Accordingly, the we need not ad- parental relationship his child. their liability defendants’ for tor- dress further the against also that his We have decided claims tiously parental interfering with John’s rela- Conaty Brian and Dr. and Mrs. defendants son, tionship we do with his not disturb properly for were ad tortious interference portion court’s of the circuit order.52 inability Despite vanced. Anne’s to be liable recovery theory under this of and our estab C. thereto numerous

lishment of defenses more upon than the in which circuit court those Jury Instructions jury, supra we structed the see note are to determine this We next asked consider moot further discussion of trial, grant court’s decision to whether the trial matter. At John asserted two alterna jury by wrongdoing and to refuse certain instructions tive of the defen theories foremost, proper in First and we this case. dants: and tortious interference. De fraud rule, that, objec emphasize general a spite jury’s “[a]s the the determination that all of charge judge’s to a must be clear tions trial were liable John under both defendants explicit enough judge tell the theories, trial is nevertheless limited to a John done to correct the singular recovery. parties we what the want Since have found Co., Run alleged Skaggs v. Elk Coal against the error.” John’s claims of fraud defendants Inc., maintained, S.E.2d properly to have stated and W.Va. been theory. requirement of “clear and may recovery on This he base explicit” objection Rule 51 of the County is echoed McDowell See Board Educ. parental Oglesby, with his grandparents); claim tortious interference Silcott v. 721 S.W.2d (Tex.1986) damages Boy Conaty upon (seeking Baby relationship to recover which grandfather). from maternal parties tortious interference granted. can Because the do not relief be sufficiency challenge appeal of the evi- the on error, assignment foregoing our 52. As with the claim, inquiry supporting our ends dence necessarily de- limited to review of this issue is termining supra here. See note 38. adequately stated a whether Procedure, turbed, through [sic] one Rules Civil of said instructions West party binding may pertinent part: “[n]o which provides, is not instruction which assign giving susceptible the refusal of a doubtful as error the been construction objects standing Syl. give instruction unless he there- while alone.’ Pt. Lambert v. jury arguments Company[, the are & to before Great Atlantic Tea Pacific (1971).”). Inc.], 397, 184 stating distinctly, any given begun, as to W.Va. instruction, objects he approach, “[w]e the matter to which Pursuant to this deferential objection[.]” only if grounds of his will reverse are incor instructions capable rect as a matter of law or of confus party’s challenge to an Once a thereby misleading jury.” Guth jury objectionable properly instruction is be rie, at Court, thorough we conduct a fore this more party challenging Accordingly, where the degree prejudice, inquiry to ascertain the objected jury giving properly of a instruction any, party. objecting if suffered during pro to the instruction the trial court Guthrie, point 4 Syllabus State determine, ceedings, we and where (1995), 461 S.E.2d 163 we enunci grant trial review of the court’s decision to re ated an abuse discretion standard challenged instruction, trial challenges: view such permit court did not abuse its discretion in jury A court’s trial instructions to instruction, here, ting inquiry ends must correct statement the law and objection party’s challenged and the Jury supported evidence. instruc- instruction must fail. by determining tions are reviewed whether Where, however, com the error whole, charge, reviewed as a sufficient- plained involves a trial court’s refusal to ly jury they instructed so understood instruction, give particular requested involved and not mislead issues were presume[ “will ... ] [the] trial court by the law. A cannot [sic] instruction correctly ... appears acted unless it appeal; instead, on be dissected the entire the record the case ... instruc that the determining instruction looked at when were tions refused correct and should have therefore, accuracy. court, A trial its has given.” been Coleman v. Sopher, 201 W.Va. charge in formulating broad discretion its (internal 588, 592, 602, 499 S.E.2d 606 jury, long so charge the as the accurate- omitted). quotations gen and citations “As ly given the reflects law. to a Deference is rule, requested give eral the refusal to concerning spe- trial court’s discretion the is instruction reviewed for an abuse of discre thq instruction, wording cific of and the 1, Hinkle, Syl. pt. part, tion.” in State v. 200 precise any specific extent and character of (1996). 280, W.Va. 489 S.E.2d 257 only will be instruction reviewed for an abuse of discretion. If complain We observe that the objected ing party at the instruction trial Syl. 6, pt. See also Marion Tennant v. but the trial court abused in Found., Inc., its discretion 97, Health Care 194 459 W.Va. instruction, granting (1995) (“The proceed the we to a jury S.E.2d 374 formulation error”, analysis. harmless error “Harmless is within instructions the broad discretion by Virginia Rule as described 61 of the West court, giving a circuit and a circuit court’s Procedure, contemplates Rules of Civil that: an is instruction reviewed under an abuse of A any discretion standard. verdict not or in in ruling should be no error defect ... or based anything by disturbed on the formulation of the done ... ... the court is language jury long ground granting the instructions so or for [sic] new trial given are setting vacating, instructions as a whole accu aside a verdict or for 2, parties.”); Syl. pt. fair to modifying judg rate and both disturbing otherwise Inc., order, Roberts Stevens Hosp., v. Clinic 176 ment or unless refusal to take such 492, (1986) (“ 345 W.Va. S.E.2d 791 ‘Instruc appears action to the court inconsistent whole, if, justice. tions be read must as a and when at substantial The court ev read, apparent they so it is ery stage proceeding disregard could not have of the must jury, misled the be proceeding verdict will not dis- error or defect in the

145 Wade, 637, 646, 490 v. 200 W.Va. rights State affect the substantial does not which 11, 724, (quoting Syl. pt. v. 733 State S.E.2d parties. (1994)), Derr, 165, 451 S.E.2d 731 W.Va. 70-71, 479 198 W.Va. at Similarly, Skaggs, — 576, 139 denied, U.S. -, cert. 118 S.Ct. 580-81, reviewing “direct[ed] we at S.E.2d L.Ed.2d determining whether inquire, when judges to objecting harmless, they Finally, party whether where alleged is an error legal appeal challenges the likely an instruction on effect ‘grave doubt about are verdict,’ sufficiency opposed to of the instruction as jury’s [v. O’Neal an error on of, give, [432,] 435, giving the refusal to ], the actual 115 S.Ct. 513 U.S. McAninch (1995)]; instruction, [947,] employ a de novo stan [992,] 994, 130 if [ L.Ed.2d See, 1, pt. part, doubt, e.g, Syl. dard of review. grave then the error a court does have Hinkle, 280, Thus, v. 200 W.Va. S.E.2d if the contested instruc State is harmful.” (“[T]he jury party’s question of whether a was complaining not affect the tion does law, question alleged properly harm instructed is a rights, any error is substantial novo.”). less, challenge review is de See also State to the trial court’s and the McGuire, 912, Tennant, 200 W.Va. S.E.2d jury must fail. See instruction (“Under (1997) (“Our legal correct at 388 review 459 S.E.2d law, rights performed ... de ness of a instruction when substantial West (footnote omitted)); affected, Specialty B.F. appropriate. novo[.]” not not reversal is are Co., only M. 197 W.Va. a new trial if there Co. v. Charles Sledd party A is entitled to (1996) (“Whether jury’s 475 S.E.2d probability is a reasonable question legally influenced trial instruction is correct is was affected or verdict error.”). contrast, in is de novo. State v. By if the contested law and our review [sic] Guthrie, 671 n. affects the substantial struction (1995).”). instruction, 177 n. 12 or if the re party opposing the viewing “grave has doubt” about Applying standards the above-described challenged prejudicial instruc effect of us, proceed presently we now the case before verdict, jury’s the trial court’s tion on the turn, evaluate, chal- the defendants’ give the instruction constitutes decision to giv- following jury instructions lenges to the harmful error. reversible Cf. pro- in the the trial court en or refused 325, 452 Murphy, Wheeler validity ceedings and effect below: ‘ (1994) (“ “An instruc erroneous injunction, temporary issued parte ex prejudicial and war presumed tion is (“West proceeding Vir- paternity inverse appears unless it rants a new trial 1”), enjoined Anne from ginia case which party prejudiced complaining adoption until the child’s placing her child for Syl omitted.]’ [Citations such instruction.” (2) established; appli- the paternity had been Yokum, labus Point Ratlief Compact the cability of the Interstate (1981).”). S.E.2d 584 and the Uniform Placement of Children (3) Act; the by Custody and Jurisdiction a Child respect to an erroneous decision With custody right to the give particular parent’s in- of a a existence trial court to refuse (4) child; of the defendants’ struction, specific guide- the effect we have established his/her process and rights to due determining on whether actions John’s lines to be used (5) law; and equal of the protection error. ruling reversible harmful constitutes contempt of court orders consideration give request- court’s refusal to “A trial Dr. and Mrs. Anne and against defendants only if: is reversible error ed instruction legal eth- Conaty alleged violations and of a correct statement the instruction is Brian and Leavitt. by defendants ics rules substantially law; covered it is not jury; charge actually given to the in the Tempo- Parte Ex Validity 1. and Effect point in important an it concerns and rary Injunction give it the failure to trial so that complain that first The defendants ability to seriously impairs defendant’s refusing by giving and circuit court erred given effectively present defense.” give pertaining injunction by certain instructions obtained John Kessel on temporary injunction parte ex order obtained June was not void.” Plaintiffs In- 38(a) (as paternity amended). in his inverse In John action. struction No. Addition- June, 1991, early petition John filed a in the ally, jury, the court instructed the over the County seeking circuit court of Cabell a con- objection defendants, of the that: clusive determination of whether or not he jurisdiction When a Court has in the was the father of Anne’s then-unborn child. power sense of to decide whether an in- conjunction paternity petition, with this junction awarded, or other writ shall be injunctive requested including: relief party against whom it issues is bound prohibiting 1. An Order from it, [Anne] obey although awarding may of it

consenting adoption to an of her unborn erroneous, and, sense, have been in that paternity child until the issue of [John’s] improper improvident, may op- and it determined; said child been has unreasonably unjustly; erate he must compelling 2. An obey Order to ad- [Anne] it until vacated or dissolved. Even pro- [John] vise of her though injunction whereabouts and to have been erro- updated regard- vide him with information neously granted, absolutely it unless child; void, condition of the unborn duty it parties enjoined is the of the obey scrupulously, An compelling they 3. Order [Anne] to ad- will be impending vise held to a strict [John] birth of the observance of it. reasonably delivery child in advance of the (as amended). Plaintiffs Instruction No. 38 of said child. The court give thereafter refused to two Following hearing petition on John’s re proffered by instructions per the defendants relief, questing, part, injunctive the circuit taining to parte tempo the effect of the ex court parte temporary injunc entered an ex rary injunction. Defendants’ Instruction tion on June “prohibiting [Anne] provided: Number 3 would have “You are placing her adoption unborn child for Conaty instructed that Anne did not violate by anyone through any agency, church, injunction issued the Circuit Court of group, attorney, private household until County, Virginia, Cabell West on June paternity can [John] be established or because Circuit Court Cabell refuted.” The court further ordered John County jurisdiction was without prevent provide “to notice Injunc to [Anne] of this from placing adoption.”54 her her child for tion,” presumably by publication.53 Similarly, Defendants’ Instruction Number During proceedings underlying in- 46 would have directed: “You are instructed appeal, injunction stant the trial evaluated evi- issued the Circuit pertaining dence parte temporary the ex Court was of no effect because no bond had injunction previous entered in given John’s Judge inverse been and because the made no paternity proceeding. The court finding then ad- required.”55 that a bond jury, objec- vised the over the court, defendants’ rulings From these of the circuit tion: “You are instructed this case that appeal defendants to this Court. It is unclear whether the circuit court defi- objection, 55.The record does not reflect an ei- nitely provide intended John to Anne with notice general specific, by ther the defendants with injunction by publication order or whether respect to the circuit court’s decision to refuse anticipated the court notice some other During Defendants' Instruction Number 46. regard means. In simply the court directed rendering regard, of its decision in this the court upon "[John] that: is ORDERED to effect service going stated: "The Court is it [sic] refuse 46.... Paternity [Anne] of the to Establish Petition going The Court is to refuse that instruction Injunctive by publication pro- For Relief and to arguments based the same the defense Injunction.” vide notice to [Anne] previously made and for the reason previously.” Court has made The record does specifically While the defendants did not use any response by not reflect verbal the defendants "object” opposing the word in the circuit court's ruling. to this instruction, they pres- decision to refuse this did argument support ent an to the court in of their position that the instruction should have been granted. post injunctive did not an chal- effect because John primarily appeal, the defendants

On the court did validity with the circuit court and ruling bond as lenge the trial court’s requirement. injunction specifically waive this entered temporary parte the ex contention, the defendants support of this paternity action. As during inverse John’s (1923) (Repl.Vol. § complain cite W. Va.Code 53-5-9 ruling, the defendants result of this 1994): granted and refused certain instructions they perpetu- as by the court were erroneous injunction ... not take effect An shall refusing in initial error trial court’s ated the penalty in given until bond be such They injunction was void. that the to find direct, judge awarding may it court or jurisdiction of improper the challenge as first judgment pay condition to or decree enjoin County to of Cabell the Circúit Court enjoined) (proceedings on which are and all juris- of its territorial occurring outside acts may against the such costs as be awarded temporary parte the ex At the time diction. injunction, party obtaining the and also court, by the circuit injunction was issued damages as shall be incurred or sus- such removed herself that Anne had averred enjoined, in person case the tained Huntington, previous residence from her dissolved, injunction and with a further be not know her and that he did Virginia, West condition, forthcoming bond been if a has Thus, the defen- subsequent whereabouts. decree, judgment or given under such assert, may be inferred that John dants indemnify and save harmless sureties adoptive place- any prospective knew that forthcoming repre- bond and their such outside parties’ child would occur ment of the against damages all [sic] sentatives lost or County, Virginia. of Cabell West or, suretyship; if consequence of such injunction proceedings not to on a be argue by issuing The defendants then decree, judgment with such condition as injunction preventing temporary parte the ex may prescribe. judge such court or adop- placing parties’ child for Anne from tion, territorial court exceeded its the circuit argu- further bolster their The defendants of West jurisdiction in direct contravention holding interpret- by citing this ment Court’s statutory Citing W. Va.Code law. statutory prerequisite to ing the effect of this (“Jurisdic- (1923) (Repl.Vol.1994) § 53-5-3 injunction: or- “[a]n of an the effectiveness injunction any judg- tion of a bill for injunction legal effect under is of no der of shall, ment, it be proceeding unless act or 10, chapter [W. Va.Code section Code specially provided, be the circuit otherwise bond, 53-5-9], requires a § unless the court judgment county in which court of is re- in the order that no bond or recites rendered, proceeding is to be or the act cause, or unless the movant quired good done, apprehended, and the doing, or is or is Syl. pt. representative.” personal is a granted judgment of a to a same Co., Washington Heights Land Meyers v. like effect as justice in like manner and with In ex- 149 S.E. judgments.”). See also to other holding, Meyers plaining this Court Employees Meadows ex rel. Professional stated: Hey, Virginia Educ. Ass’n West purpose of the statute is intent and The (1990) (“Under W. Va. manifest, namely, that he who invokes the (1981), the circuit court of one 53-5-3 Code injunctive process of the court must be authority enjoin county does not have good guarantee to make proper bond [sic] occurring in coun- citizens other the acts of prejudicial- are person whose ties, judge of the other except where the injunction damages ly all affected proceeding and county in the is interested If injuries to him.... thus occasioned act.”). Consequently, the defen- unable to enjoin- excusing the reason [for there was maintain, the circuit court did because dants statutorily posting the re- ing party from injunction, jurisdiction enter the not have bond], have been recited it should quired it was void. Again say courts of in the order. The speak their records. record must contend that the ex

The defendants next why containing no reason injunction legal court’s record is without parte temporary injunction knowledge injunction should have been issued that Anne had of the bond, it placed Baby Boy Conaty without must be considered that she adop before Therefore, no reason. there was tion. Anne testified that she did not know of granting injunction in parte injunction of the such manner the ex order until Novem that, ber, 1991, only England was erroneous. Not but the when she returned from injunction binding was without force. The visiting where she had been with her sister says. shortly parties’ statute so There was therefore no since after the birth of the binding injunctive legal July, inhibition on the Additionally, child in 1991. Anne was enjoined].... [party sought personally injunction to be never served with the Nevertheless, order. the defendants note 643-44, 149 S.E. at 823-24. W.Va. jury affirmatively special that the answered suggest The defendants also that bond interrogatories finding that both defendants requirement applicable tempo- is likewise injunctive Anne and Leavitt knew of the rary injunctions. Syl. Citing pt. Conley prior Baby Boy Conaty’s adoptive order Brewer, S.E. placement.56 (“It decreeing temporary is error on in- junction to make the same without effective Moreover, complain the defendants requiring plaintiff of the bond such Anne cannot be found to have violated the penalty may prescribe, as the court condi- injunctive order because she was served law.”); according Chesapeake tioned & injunction enjoined with the until after the Patton, (1872). Ohio R.R. Co. v. 5 W.Va. 234 injunction acts had occurred. While the Therefore, the defendants claim that the ex entered, 26, 1991, on June the defendants injunction parte temporary legal had no ef- injunctive claim that service of the order on post fect as a result of John’s failure to bond 26, 1991, Anne July was not effective until require and the circuit court’s failure to him publication injunctive the last date of definitely require- do so or to waive such a order, or some date thereafter. As Anne ment. completed had all pre-adoptive place- paperwork July ment on she had additionally urge

The defendants effectively already placed Baby Boy Conaty cannot Anne be found to have violated the ex 26,1991, July temporary injunction adoption on parte and her actions because she did doing in so could not then injunctive not receive actual have been en- notice of the joined. Citing Syl. enjoined pt. Chesapeake order until after the & Ohio act had oc- Patton, (“An R.R. vein, injunc- Co. v. 5 W.Va. 234 repre- curred. the defendants granted tion should not be party sent that a for an act done must have actual notice of law, completed, though contrary injunction un- may the terms of an before he/she circumstances.”). Hence, peculiar less under charged with its “[w]here contents: argue party parte temporary the defendants the ex injunc- has actual notice of an order of tion, injunction although was unenforceable because Anne yet not have been served, defectively him, knowledge did not obtain notice or or be of and served injunction was not served operative with the order order becomes on him from completed until after she had Syl. Fisher, prohibited that time.” pt. Wenger v. acts. 46 S.E. 695 Further, suggest replies defendants parte temporary that the ex presented injunction evidence at trial failed to establish was valid and that the trial court special interrogatories requested The to determine: you preponderance 2. Do believe you preponderance 1. Do believe personally the evidence that David Leavitt Conaty personally the evidence that Anne knew Conaty placed Baby Boy knew when Anne placed Baby Boy Conaty when she with the Conaty parents] adoptive [Canadian with the adoptive parents] [Canadian that the Circuit Couniy that the Circuit Court of Cabell had County Court of Cabell had entered an order prohibiting placing entered an order her from prohibiting placing her from the child for adoption? the child for adoption?

Yes X No Yes X No Meadows, ruling. suggests He further 399 S.E.2d 657. not err in so did appropriate redress for the remained Anne’s of dom- the most West state icile, grievances despite temporary have been to defendants’ would her absence from injunctive region, order or retained her inten- appeal the circuit court’s this because she request prohibition prevent its in an writ of tion to remain this state for indefinite period Citing Syl. pt. part, defendants failed to of time. enforcement. As the remedies, Manchin, though, these pursue either of White 173W.Va. 318 S.E.2d (1984) (“Domicile arguments their before responds also is a combination of John (or presence) contests the defendants’ this Court. He first residence and an intention of existed, performed remaining. the acts position that Anne had If domicile has once i.e., it, enjoined, adoptive place- temporary destroy sought to be mere absence will not (internal Baby Boy Conaty, prior long quotations to the effec- ment of however continued.” omitted)). injunctive support order tive date of service of the and citation of this In suggests paper- theory during sojourn that the final upon her. He John asserts that her states, required completed by hospi- work to be and other Anne did not California change permanent child could be released to the tal before the her address to one other prospective adoptive parents prior Huntington, was not final- than her address in West addition, July Virginia. until the same date that ized Anne’s intent to re- injunctive by exemplified by of the order on Anne turn to service this State is her re- Thus, publication quest became effective. John for a from her Hunt- leave absence prevented ington, Virginia, teaching position, contends that Anne could have West placement resignation after she re- adoptive infant’s rather than an unconditional notice, injunc- she, child, publication, post. via ceived As and her were both Virginia, tion. domiciliaries of West Cabell County properly Circuit Court exercised in injunction proposes next that the John jurisdiction issuing personam over Anne in properly pursuant to the circuit entered injunction parte temporary the ex order. jurisdiction. _ relations W. court’s domestic Commonwealth, Citing Rogers v. 176 Va. (1995) (Repl.Vol.1996) § Va.Code 48A-6-1 (holding relations defines the circuit court’s domestic that domicile nonmarital child is same as jurisdiction applicable parte tempo- to the ex mother). child’s injunction assignment rary at issue error: Finally, urges that the circuit court John

(b) jurisdiction injunctive possessed enter re- “paternity proceeding” A is a sum- authority lief virtue of its to determine equitable in nature and mary proceeding, paternity of a child. jurisdiction matters related domestic relations within the personal Specifically, courts, may a circuit court obtains a circuit court ... wherein matters, jurisdiction paternity part, pur- respective personal rights protect ... (Cum. § suant to Va.Code 48A-6-1 paternity has not W. of a child for whom been established, Supp.1991): lawfully of the mother putative

child and of the father of (b) person A who has sexual intercourse child. jurisdiction of in this state submits to the for an action the courts of this state jurisdiction, claims that the Under this John brought respect to a under this article with “enjoin empowered to circuit court was conceived that act of child who was interfering offending party ... with the process intercourse. Service of or visitation of the oth- custodial civil perfected according to the rules of 48-2-13(a)(ll-12) er....” W. Va.Code procedure. (1993) (Repl.Vol.1996). See also W. Va.Code (1996) (Repl.Vol.1996).

§ 48-2-15 jurisdiction circuit court’s over Given the person, maintains that the court suggests court Anne’s John also the circuit injunction to re- jurisdiction power had the to issue properly personal over exercised performing certain acts domiciliary strain Anne from Anne virtue of her status as a Citing performed if to be out- County, Virginia. even such acts were of Cabell West 150 jurisdic- § (Repl.Vol.1994) court’s territorial 53-5-3

side of circuit W. Va.Code “|j]urisdietion Ins. v. a bill Citing States Fire Co. directs for an tion. United (1942). Fleenor, 268, injunction any judgment, proceeding 901 to act or 179 Va. 18 S.E.2d shall, Furthermore, specially provid- that even if the unless it be John contends otherwise invalid, ed, county in injunction determined to be be the circuit of the in was later court rendered, judgment required its terms until which the or the act or Anne was to abide done, proceeding doing, judicial had been made. is to be or is or is determination Kansas, 181, apprehended[.]” Syl. pt. Ray Citing v. 258 U.S. 189- See also v. Howat 1, 277, 280-81, 550, 521, 90, Hey, 42 66 L.Ed. 559 183 W.Va. 702 S.Ct. 396 S.E.2d (“ (sec.4950) Doe, 4, 133, (1922); ‘By Corp. v. c. 1913 Eastern Assoc. Coal section Code 672, Va.Code, [1931]], jurisdiction [W. 220 S.E.2d 677 53-5-3 to 159 W.Va. injunctive process exclusively award is vested county in the circuit court wherein the Having scrupulously the defen- examined proceeding sought enjoined act or to be is to particu- arguments pertaining to this dants’ done, doing, apprehended, or is or is error, initially assignment lar we are in- notwithstanding may some of the defendants to their merits based clined to refuse address county[,] except in provid- reside another arguments, though the fact that such chapter ed in sections 6 and 9 of the same jury couched in terms of erroneous instruc- 4955) (secs.4952, Va.Code, 53-5-4, -7 [W. are, fact, rulings, nothing tion in more than [1931]], and where a co-ordinate court has attempts challenge validity to of the ex jurisdiction grounds on other than the award injunction parte temporary at this late date. injunction.’ 1, Syllabus Way- of such Point reject Ordinarily, untimely we would such an Rummel, land Oil & Gas v. 78 Co. W.Va. challenge prior where the record evinces no (1916).”). 196, 88 S.E. 741 objection injunctive validity. to the order’s Co., Syl, See Brast v. Kanawha Oil 46 W.Va. However, well-recognized excep (1899) (“An parte 33 S.E. 302 ex order permit enjoin tion exists to courts to acts injunction granting appealable is not until occurring jurisdic outside of their territorial after a motion made to vacate or set injunctive merely tion where the relief is aside.”).57 Nevertheless, we because find ancillary underlying proceeding to an over injunction’s that a determination of the valid- unquestionably jurisdic which the court has ity integral indispensable in step is an respect, Syllabus point tion. In this 3 of assessing propriety instruc- Latimer, Shobe W.Va. 253 S.E.2d court, granted tions refused the trial (1979), indicates that “W. Va.Code 53- evaluate, merits, we will to undertake on the applicable only 5-3 has been held to be presented the issues for consideration. injunction where an is the exclusive relief challenge sought, injunctive The defendants first and not where relief is propriety merely ancillary primary of the circuit court’s instruction claim ad injunction Lewis, advising that the “was not void.” vanced the case. Hubbard & v.Co. 38(a) (as (1934); Pugh, See Plaintiffs Instruction No. 174 S.E. 880 amended). Fredlock, Typically, a court issue an State v. W.Va. S.E. (1902).” injunction enjoin only occurring those acts See also State v. Fred (“A lock, jurisdiction. within that court’s territorial W.Va. S.E. 153 finding In addition to no record evidence indi to obtain relief from the enforcement of an in- See, cating challenged validity junctive e.g., Syl. pt. part, that Anne order. State injunctive paternity order in the inverse action ex rel. Glass Bottle Blowers Ass'n United States Silver, moving the circuit court to vacate or set aside its & Canada v. order, similarly anything (holding, prohibition we proceeding are unable to locate sought seeking prevent preliminary to demonstrate that Anne relief from this enforcement of " by way prohibition appeal. Although injunction, general any person Court '[a]s rule who reluctantly necessity injured by proceeding we will be affected or determined addressing injunction’s validity partic prohibit apply in this which he seeks is entitled ” case, recapitulate prior Syl. prohibition’ (quoting pt. ular our admonitions a writ of Court, suggesting enjoined parties they may peti part, Linger County State ex rel. (1965))). prohibition tion this Court for a writ of in order 144 S.E.2d 689 injunctive meaning- may require relief would have been jurisdiction personam, having do, doing, an attendant determination that or refrain from less without the defendant jurisdiction, anything John was the father Anne’s child. beyond territorial its manner, sought require him to do or if all that John and received power to which it has injunctive issue, territory”). In- relief at he of its was the would within the limits omit holding, powerless parental have been to assert his terpreting language of the Shobe “ synonymous ‘is custodial vis-a-vis the child un- we discern that “exclusive” and/or “sole[]”,’” “only” judicially 21A less he had been determined to be words (1987) Thus, injunc- and Phrases 159 Michie’s Jur. Words the child’s father. because the Morley v. (quoting by merely Fuel Gas Co. Oil United tion issued the circuit court was Co., 135 S.E. ancillary & Gas 102 W.Va. primary paternity to the inverse (1926)), “ancillary” signifies “a and that proceeding, goal of which was to deter- an- proceeding attendant or which aids mine was the father of whether John Anne’s principal,” proceeding child, other considered empowered enjoin the court was (6th ed.1990). Dictionary Law Black’s adoptive placement Baby Boy Anne’s Co- naty, although contemplated acts were in- Looking petition filed in John’s to the likely County, to occur outside Cabell paternity proceeding, we find that John verse Virginia. West paternity requested both a determination injunctive obtaining, relief in aid of Additionally, the circuit court was entitled to, paternity ancillary such a determination. injunctive request to entertain John’s re- law, statutory applicable John was Under the grant in lief and to such relief order to petition for an ascertain- entitled to the court preserve quo pending the resolu- status ment fatherhood of Anne’s child. See of his underlying paternity tion inverse ac- 48A-6-l(a)(7) (1989) (Cum. W. Va.Code recognized propriety long tion. We have (“(a) A action to establish the Supp.1991) civil injunction preserve issuing an the sta- instituted, may paternity of a child ... be See, quo pending litigation. e.g., Syl. tus complaint, in court of the verified the circuit Ritz, v. pt. Powhatan Coal & Coke Co. county plaintiff, the defendant or where the (“The 395, 56 S.E. 257 function may the child resides. Such action be injunction, preliminary of a whether following persons: ... brought by mandatory, preserve prohibitory or is to purporting A man to be the father of a until, upon hearing, final the court quo status out-of-wedlock, when there has child born relief.”), may grant full overruled on other judicial pater- prior no determination of been grounds by Corp. Eastern Assoc. Coal Likewise, nity.”). the Circuit Court Cabell Doe, 200, 220 159 W.Va. jurisdiction County express to hear the had Corp. Assoc. also Eastern Coal See paternity raised John because matter (“A Doe, 200, 220 S.E.2d 672 159 W.Va. time, was, a resident of at that Cabell may power determine its protect court its County. jurisdiction by issuing temporary in- own pending junction quo the status specific contents of to maintain respect to the With juris- appar- adversary determination of its own paternity petition, it is John’s inverse diction.”); Syl. pt. part, Leslie Co. v. filed his from the record evidence he ent Co., was, Coal to determine whether he Cosner action both injunction dis- fact, (permitting to be prevent and to the father of Anne’s child showing is made re- adoption where no clear placing her child for solved Anne from injunctive preservation “for the quiring relief paternity had been established or until his ”). Thus, the circuit court quo regard expressed he of the status refuted. In this injunctive authority relief in court, temporary to issue during parte ex had circuit paternity action order inverse injunction hearing, his desire to obtain John’s possible, the the extent status paternity preserve, determination of his conclusive Moreover, infer, of John’s quo until a conclusive determination one lack thereof. John, made.58 paternity could be reviewing petition filed given this case of the status proper 58. We note that quo particularly preservation per paternity petition injunctive Finally, the circuit court was Anne injunction proceedings: temporary on an mitted to issue specifically recog parte ex basis. We [by A. tried to serve her John] We judge may circuit issue a nized that “[a] brother, Brian, lived with her broth- —She injunction parte the ex motion of a

(cid:127)valid on multiple er Brian on Eleventh Avenue— litigant.” Syl. pt. Eastern Assoc. Coal times and no one was home. We tried to Doe, 200, 220 Corp. v. S.E.2d 672. parents serve her town. No one there. pro nature of the Because of the one-sided She told me David Lockwood was her surrounding and the ceedings such an order attorney. Also Brian told me David Lock- rights of the adverse respect we afford the attorney. wood was her I had a former injunction party, parte preliminary “[a]n ex February attorney in who had talked with remedy justified extraordinary which is an Mr. Lockwood and said that he was her extraordinary only circumstances.” under attorney, evidently— but Oil, Syl. pt. Kaufman, Inc. v. Ashland Q. [by represented Court] [Lockwood] W.Va. 384 S.E.2d When yesterday today to the Court that he injunctive request parte faced with a for ex representing was not her. relief, Exactly. A. injunction only grant “a such an court shall So, Q. why let that is we couldn’t ser- clearly specific appears if it from facts go through vice him. by complaint verified shown affidavit or irreparable injury, immediate and loss, damage applicant to the will result My EIFERT [counsel John]: MS. for attorney party or his before the adverse attempted office to serve two times [Anne] opposition. appli- in The can be heard previous at her where she residence resid- attorney certify cant’s must to the court Brian; and, fact, person ed with in in the efforts, any, if which have been made neighborhood Conaty said Ms. did not re- give support- the notice and the reasons any more. side there We have since that ing any claim that notice should not be attempted still to serve it at that residence given.” pick but Brian has never been there to it part, in United Mine Workers of up. Waters, Am., Local Union 1938 hearing The week before tried Syl. (quoting pt. 489 S.E.2d serving Wednesday, Thursday, Friday it Oil, part, Kaufman, in Ashland Inc. v. Conaty home on Thirteenth Avenue 173). they were not [sic] and home. injunctive An in- examination of the order We went to the it Circuit Clerk and had court, granting dicates that the circuit ex by sent certified mail under Rule 4 and relief, injunctive parte properly complied today then is.the first time it is in the findings by prerequisite with the mandated newspaper by publication; order I The United Mine Workers and Ashland. also, said, as on the 5th sent a [John] June [John], specifically court found as well “[t]hat courtesy copy [Lockwood] to Dave because any prospective adopting parents, will be I had from understood John that Dave was irreparably if harmed the unborn child is attorney. her placed adoption without the establish- paternity Following exchange, specifical- [John’s] ment of and without the court consent,” thereby rendering ly opinion “I [John’s] [John] neces- found that am of the sary injunction prohibiting diligence get per- Anne from has used due in order to Furthermore, placing adoption. her child for sonal service I don’t know what [Anne]. do; and, therefore, transcript temporary they parte the ex else could the Court injunction hearing attempts having parte feels the ex hear- reflects comfortable Hence, provide recog- made John’s counsel to notice to matter.” the court Anne, John, competing parental relationship constitutional to travel to establish a child, regarding pregnancy, implicated and to make decisions with his therein. her presently before the court. The parte which is not then under ex the circumstances nized ” very paHe appropriate and found definition of “ex commands such injunctive relief is “ underlying parte’ appropriate interpretation: in the is defined as ‘[e]x relief was an sum, appears party; paternity only; action. or for one done inverse on one side that, of, grounds, for, the circuit application on several of or on the one behalf jurisdiction issue subject matter possessed party only.” 21A Michie’s Jur. Words and injunction.59 temporary parte (Supp.1997) (citing the ex In re Phrases 64 Kauf man, 166, 171 5, n. County The Circuit Court Cabell (internal quotations and cita 485 n. 5 enjoin jurisdiction Anne personal also had omitted)). Therefore, the fact tion that we adoption. placing Pursu her child injunctive permitted courts to issue or 48A-6-l(b) ant to W. Va.Code ap parte implies that we also have ders ex (Cum.Supp.1991), person who has sexual “[a] entry despite proved the of such orders juris intercourse this state submits Reiterating party’s absence. our adverse of this state for diction of the courts above, finding forth because we have set respect brought action under this article properly determined that the circuit court conceived that act of to a child who was requisite applied evaluated and the factors dispute parties The do not intercourse.” injunctive relief, issuing parte ex we conclude Baby Boy Conaty oc conception the of that personal that the circuit court did not lack anywhere in the state of West curred but jurisdiction enjoin adoptive place Anne’s Virginia. Accordingly, appears it that both solely ment of her infant son because the actions, John, by their have sub Anne and granted parte in relief ex and not Anne’s was jurisdiction Virgi in personal West mitted to presence. proceedings pertaining respect nia with to all Baby Boy Conaty. paternity to the Since Moreover, govern- statutory provision the tempo granted parte the ex the circuit court injunctions, generally, ing the issuance of injunction underlying rary incident to the question party the places the whether paternity proceeding, the circuit inverse enjoined given sought to should be notice be jurisdiction personal properly court asserted injunction proceedings within the placing enjoin Anne from her child for of the circuit court. sound discretion paternity adoption until the child’s had been judge require [A]ny may or that established. given the notice shall be reasonable attorney-at-law, in party, or his or adverse Furthermore, the circuit court was it, fact, place moving for the time and personal jurisdiction permitted to exercise awarded, injunction if in the is before the issuing parte in relation to the ex over Anne judge proper it opinion of the court or injunction pursuant explicit temporary given. notice should be that such above, injunctions. recognized As we law of (1955) (Repl.Vol.1994) § 53-5-8 may parte tempo an ex W. Va.Code a circuit court enter added). Likewise, this has (emphasis Court rary injunction the circumstances war where ability of the circuit court to approved court’s rant relief. Given the circuit discretionarily to the adverse injunctions provide notice authority temporary ex to issue Oil, Kaufman, party. Ashland Inc. compelled to find the court See parte, we are at 176 & n. injunction despite 731 & properly enter an could (reaffirming prior approval our did not have n. 4 Anne’s contentions that she discretionary provision notice contained with- injunction hearing and prior notice of the reiterating in 53-5-8 and hearing as a W. Va.Code that she was absent from the “ in judge[,] judge thereof vaca- Implicit in ‘a circuit or lack of notice. result of this ” tion, injunction, may exer- recognition application on parte that one term “ex is matter of re- discretion judicial on own cise a sound party seeks relief his/her given to the adverse party quiring notice to be despite the fact that the other initiative jurisdiction in- the circuit court contained tions II.C.2., reasons stated in Section 59. For the fra, injunc- reject we John’s contentions the UCCJA. to the domestic reía- tion was proper pursuant rendered, fact, attorney[-]at[-]law irregular, improvidently or is does or party[,] or his justify disregarding violating one moving for it place of before the time and ” order, citing court’s error as and then injunction (quoting is awarded’ Where, contempt. Goodhue, charge to a a defense part, Kalbitzer however, jurisdic- judge (1903))). the court or lacks Thus, appears again it S.E. 264 tion, authority power without or is jurisdic- assertion of that the circuit court’s order, comply with such render the refusal to parte ex in its issuance of the tion over Anne may punished contempt.”); order not be injunction appropriate. temporary was Fredlock, 43 S.E. State v. analysis, foregoing we con- Based our (1902) (“When jurisdic- a court has County Court of Cabell clude that the Circuit power in the sense of to decide whether tion juris- subject personal had both matter awarded, injunction an or other writ shall be parte temporary in- grant diction to the ex against party whom it issues is bound to such, junction requested John. As it, may obey although awarding it court, in the trial further that the circuit find erroneous, sense, and, improper in that been action, did not err in instruct- of John’s civil improvident, operate and it unrea- injunction jury that the order “was sonably unjustly. obey it until He must not void.”60 omitted)). (citations vacated or dissolved.” Next, argue the defendants challenged in Reviewing the instruction erroneously the circuit court instructed defendants, instance we can find obey enjoined party that an must in the of the law or in the no error statement erroneously grant injunction, if it even jury. circuit court’s decision to so instruct ed, injunction absolutely void or unless the Our examination of this instruction as was subsequently vacated or dissolved. until it is originally court fur- tendered to the circuit (as amend See Plaintiffs Instruction No. 38 in law was cor- ther indicates its basis ed). above, the formulation of a As we noted instruction, support rect. In of this jury charge its discre trial court’s is within Fredlock, cites Doe and both of which we and, given the instruction is a tion where supportive have found to be of the statement law, are reluc correct statement we challenged contained instruction. tant to find an abuse of the court’s discretion. Therefore', we find that the circuit court did See, 4, Guthrie, e.g., Syl. pt. v. 194 State granting not err in this instruction over the (1995). 657, Upon 163 a W.Va. S.E.2d objections. defendants’ law, applicable are con of the we review by challenged vinced that the instruction allegation The defendants’ third was, fact, a defendants this instance regard injunction of error with to the instruc In applicable correct of the law. statement concerns the circuit court’s refusal to tions Syllabus point 2 of Eastern Associated Coal give proffered by an instruction the defen Doe, 200, 672, Corp. v. 159 W.Va. 220 S.E.2d dants, directing: “You are instructed that recognized having jurisdic court “[a] we injunction Conaty Anne did not violate jurisdiction parties of the and colorable tion by County, the Circuit Court of Cabell issued subject may injunction of the matter issue an Virginia, on West June because obeyed regardless which must be of whether County was without Circuit Court of Cabell ultimately jurisdiction it is to have been erro prevent placing determined to her her from neously improvidently adoption.” awarded.” See also child for Defendants’ Instruction Dostert, 3, reviewing arguments pertaining State ex rel. Askin v. to No. 3. (1982) (“Where 562, give particular a W.Va. 295 S.E.2d 271 a circuit court’s refusal to jurisdiction instruction, particular presumed “[i]t court has to issue will be that a order, erroneous, correctly refusing trial acted ... to the fact that such order is June, injunctive 60. that the order was issued in While we have concluded that the lack of time injunctive arising prior entry notice to Anne to the 1991. Such controversies however, injunctive today, validity granting order was not fatal to the order's case, in this relief narrowly governed by would the new West caution that this decision is Procedure, 19, adopted February precise presently limited to the facts of the case Rules of Civil 1998, 6, upon existing April before based law at the and effective us and may acquired jury, ap it ceivable that never have give instructions to the unless he/she ... in the case actual terms. 14A pears from the record notice its See Michie’s (1989) (“Actual 3,§ refused were correct and the instructions Jur. Notice at 4-5 notice given.” v. knowledge, by party, very have been Coleman So should is actual pher, thing 201 W.Va. matter or of which he is said to have (1997) (internal (footnote omitted)). quotations and citations omit Though notice.” we have ted). “[wjhere Where the instruction is determined party held has actual notice of an such that it should have have been correct injunction, may although order of it not have given, served, been defectively yet been or be served him, operative the order on becomes give a re- trial court’s refusal “[a] time,” Syl. pt. Wenger him from that v. only quested is reversible error instruction Fisher, (1904); Syl. W.Va. 46 S.E. (1) is a correct state- if: the instruction Glasscock, pt. Osborn law; substantially ment of the it is not (1894) (same), we remain concerned S.E. actually given charge in the covered potential inequities of this situation. jury; important it concerns an give point in the trial so that the failure to stated, simply More we are hesitant seriously impairs ability to a defendant’s require comply party with the terms of effectively present given defense.” injunctive questionable order it is where Wade, 637, 646, 490 could, State v. enjoining court whether the within Syl. (quoting pt. State process, compel compli- bounds of due Derr, (1994)), 451 S.E.2d 731 regard, ance. In this we look to W. Va.Code — denied, 576, 139 U.S. -, cert. 118 S.Ct. (Repl.Vol.1997), which de- 61-5-26 L.Ed.2d 415 “contempt fines the criminal offense of court”: then, inquiry, in- first is whether the Our proffered judges

struction the defendants but The courts and the thereof contempt punish the circuit court was a correct refused issue attachment for applicable Although only following summarily statement of the law. in the them (d) the circuit court we have determined that ... disobedience to or resis- cases: authority by entering any properly person, exercised its ... lawful tance of injunction parte temporary prohibit process, judgment, the ex decree or order of placing adoption, impose her for a Anne from child court.... No court shall said subsequent concerned about the ramifica- contempt, are fine for unless the defendant be court, statutory juris- present of this order. and or shall have been served tions Our cause, jur- prudential permits a court assert to on law to a rule of the court show with party presently day, a is not have failed to isdiction over who certain and shall some it, may appear and who not have received cause. before and show judicial hearing, purpose notice of the (1965) (Repl. § Va.Code 62-6-6 See also W. entering injunction prohibit of an him/her Vol.1997) (“No impose a fine court shall conducting particular in a him/herself process of its a[ny] person, for disobedience personal juris- assumption manner. This of present in a any contempt, unless he be or is documented the law of this diction well time, or shall have been served court at the disputed. State and cannot be court, returnable to a time a rule of the with certain, why arises, however, requiring him to show cause one problem The when imposed, and shall have injunction fine should not be attempts an that has to enforce cause.”). gen See appear manner failed to and show entered in the aforementioned been Conley, v. 151 who, entry erally ex rel. Arnold against party of State even after 584, 587, 683 153 S.E.2d injunction, personally cannot be served W.Va. charge case, (recognizing criminal nature of prohibitory In such a order. with (citations omitted)), over injunction “contempt of court” may of the order service Kop ex rel. enjoined grounds State ruled on other by publication. While the order Oil, Co., Inc. v. International Union required comply pers with the party would be Workers, injunction, Atomic it is con- Chem. & prohibitory terms of (1982); proceedings, of the pertaining v. to all criminal State 298 S.E.2d process protection S.E. afforded our State Ralphsnyder, 34 W.Va. due 42(b) (same). Virgi- person deprived of the West Rule “No shall be Constitution: further clar- life, pro Procedure liberty, property, nia Rules of Criminal due without in which a court should law, the manner judgment peers.” ifies cess of and the of his Const, party charge offending apprise an “A art. fundamental W. Va. contempt: process opportu an element of ‘due of law’ is except heard, contempt, opportunity [where nity A criminal ... and an to be ‘ disposition permissible], shall

summary reality is heard ... “has little or worth be prosecuted notice. The notice shall on the matter is unless one is informed hearing, allow- place state the time pending [or can choose for himself her ’ ” preparation time for the ing a reasonable Segal whether to ... contest.” self] defense, the essential and shall state Beard, 92, 100, constituting contempt the criminal facts (quoting Lopez, Goss U.S. no- charged and describe it as such. The 729, 738, L.Ed.2d S.Ct. orally by judge in given tice shall be (1975) (quoting Mullane v. Central Hanover presence the defen- open court in the Co., Bank & Trust 339 U.S. 70 S.Ct. or, prosecuting application of the dant on (1950))). Hence, 652, 657, 94 L.Ed. attorney appointed by attorney or party if does not receive actual an adverse purpose, by an order to the court for that order, injunctive extremely notice of an arrest[.] or an order of show cause unlikely apprised would be he/she subsequent of con circuit court’s institution designated Implicit procedure within the tempt charges arising violation from his/her charging contempt of court is one the unknown order.61 such circum Under offending party presence of the before stances, it remains to be seen whether a sufficiently within the court’s the court properly charge party court could such a jurisdiction permit to be so as him/her contempt. precise As is not issue ruling. aware of the court’s show cause Gen- us, presently before we reserve for another stated, erally a “show cause order” is day order, decree, execution, etc., a final determination of this matter. ap- “[c]ourt directed, pear present to the court authorities, Considering the above we con- such reasons considerations as one has patently unfair to rule clude that it would be order, decree, etc., why particular to offer compelled comply that Anne with the effect, confirmed, take be exe- should not be temporary injunction parte terms of the ex cuted, Law or as the case be.” Black’s question to whether the when a exists as ed.1990) (citation (6th Dictionary 1379-80 circuit have sanctioned her non- court could omitted). compliance The our with its terms. effect of then, ruling, to conclude that while the

Tempered proce is with the delineated injunction validly by a charging contempt entered court dures for one with court, consideration, having jurisdiction subject matter though, overriding is the of both the court, rejection undoubtedly through propriety service more crucial as the 61. Our of the order, injunctive publication should not be injunctive immediately prohib- of an order its seeks to indicating any disapproval as misconstrued enjoined party doing specific it the from a act or procedure per- this Court with the established conducting particular in a man- from him/herself mitting by publication.' complaint a service of ner, thereby requiring an almost instantaneous 4(e) (describing proce- R. See W. Va. Civ. P. Rule response enjoined party. affirmative Furthermore, from the i.e., process, ser- dure for constructive service of receiving upon actual notice of an by publication). vice The reason for this distinc- order, enjoined party may injunctive an be apparent purpose tion is of each of from the charged contempt of court for violation requirements. at- these service tempting When one is injunction’s prohibitory this terms. As party to serve an with a com- adverse indicates, upon comparison the duties an thrust plaint, notice is calculated to inform that injunction simply party adverse to an order are against party a lawsuit has been filed him/ burdensome, so, immediately than more may respond and that or otherwise her he/she required party of a adverse to a filed com- those appear challenge ac- at some future date to plaint. contrast, By injunction notice is tion. upon pleadings properly in equity powers power court lacked the parties, the and the action, voking upon persons and served Anne was absent its its order while to enforce juris jurisdiction parties made therein and within the and John was its territorial diction, obeyed by them this de must be however personally serve her with unable to be, may result, the action of the court parte that the ex erroneous we find cree. As assumption may been even if the error be injunction order temporary validity seeming going law voidable, absolutely of a but void it was not void. but that (6th the merits of the case. It is for the court of Dictionary ed. Law See Black’s question of 1990) (“There first instance to determine the this difference between is law, validity of the and until its decision in the and ‘voidable’: void two words ‘void’ review, by orderly for error ei reversed than an instrument or strict sense means court, by higher its orders ther itself or nugatory and ineffectual so transaction is ” respected[.]’ based on its decision are to be it; exists nothing can cure voidable Kansas, v. (quoting Howat 258 U.S. cured imperfection or defect can be when an 189-90, 277, 280-81, 66 L.Ed. S.Ct. him could by the act or confirmation of who (1922)) (emphasis original omitted and new id., it.”); (defining advantage of at 1574 take added) (citations omitted)). emphasis To the judgment” apparently val “[o]ne “voidable prior holdings Syllabus our extent id, wanting in some material but in truth Fisher, point Wenger 3 of omitted)). (citation pt. Syl. also respect” See Syllabus point 2 of S.E. Osborn Marquez, 201 W.Va. Harkwell v. Glasscock, 20 S.E. are (1997) (making dis 5.E.2d void/voidable obtained, here inconsistent with the result judg respect to order of default tinction with they expressly disapproved.62 are ment). then, result, discussion, reaching foregoing that at we note From the recog- proffered by facially appears it that the instruction prior least one of our decisions a correct statement of necessity ensuring that an en- the defendants was nizes the ... not violate the of the con- law insofar as “Anne did joined party receive actual notice injunction by the judicially proscribed in issued Circuit Court that has been duct because, County” per authority until she had preserve the court’s to Cabell order to sonally the court or had injunctive appeared Eastern before its order. See enforce injunction Doe, personal service of the Corp. v. 159 W.Va. at received Assoc. Coal (“ order, effectively incapable of violat injunction duly she was at 679 ‘An issu- unenforeeability. jurisdiction provisions due to its general its ing out of a court of fixes, the time so fixed unless within juncture we note that the decision 62. At this shown, order, good for cause is extended upon particular for issue is limited rendered against party whom appeal. explained period or unless the a like facts of the instant As consents that it supra, the order is directed the new West Rules of in note longer period. The for applicable reasons to a case for Civil Procedure would be extended In case be entered of today extension shall record. arising under the same or similar circum- granted temporary restraining without ruling, order is respect particular With to this stances. notice, preliminary injunction guid- provide appears new more motion that the Rules hearing earliest necessity at the import shall be set down of service ance as to the precedence of all matters enjoined party. possible time and takes injunctive order character; (Main except of the same Vol. older matters Compare Va. Civ. P. Rule 65 W. R. party hearing 1998) ("The on for practice respecting preliminary the motion comes in- when restraining temporary order prac- junctions who obtained the be accordance with the shall in State, prelimi- application including proceed with the shall nary injunction followed in this tice heretofore so, and, party supporting if the does not do complaint or the use of a verified 65(b) restraining affidavit.”) temporary dissolve the Rule the court shall with W. Va. R. Civ. P. 65(d) order[.]”) (Supp. 1998) restraining W. Va. R. Civ. P. Rule May ("Every temporary and (Supp. 1998) injunction ("Every granting May an order granted shall be indorsed order without notice only issuance; binding every restraining ... order be filed and with the date and hour of shall officers, action, parties their upon to the of the in the clerk’s office and entered forthwith record; servants, attorneys, employees, and why agents, and injury it is shall define the and state partic- upon persons in active concert or why granted those irreparable the was with- order notice; actual notice of ipation who receive expire by within with them and shall its terms out otherwise.”). by personal entry, days, order service as the time after not to exceed 10 itself, in Anne had or had not violated to determined assess- whether The next factor be the circuit failure to ing court’s proscription whether this and to consider such con- reversible grant this instruction constitutes remaining duct in relation to the evidence whether the contents of this instruc- error is indicative of Anne’s fraudulent conduct.63 substantially in re- covered tion were Omitting presented dur- from the evidence jury charge. A review of the mainder of the underlying trial all reference to the jury given by the circuit court instructions injunction, temporary jury rea- parte ex jury not an in- reveals that the did receive sonably have found numerous other could indicating that Anne either had struction upon of which to base Anne’s indicia fraud Thus, injunction. had not violated trial, liability for this claim.64 At the evi- compli- Anne’s court remained silent as to repeatedly that had in- thereof, dence showed John ance, prior injunc- or lack with the that he not consent to the formed Anne did tive order. of adoption of their child and that Anne knew Finally, appellate reviewing an objections. suggested The evidence also propriety of a lower court’s decision to knew, July that Anne on reflected jury re particular instruction is refuse meeting Leavitt’s notes from their on that subject of quired to determine whether the date, in that had filed a civil action important the instruction was so its Virginia pertaining to their then-un- West jury charge omission from the constitutes many background, born child. this With harmful error. the entire reversible Under significance assume new when Anne’s actions proceedings present record of the trial court respect allegations to the viewed with matter, in ed to us for review this we find example, in fraud. For direct contravention give court to that the failure the circuit requests and the circuit court’s John’s proffered instruction does not defendants’ commands, Anne failed to authorize the re- reaching reversible error. constitute records that lease her California medical that, conclusion, we note rather than affirma provided would have John with information tively instructing jury that Anne did or pertaining prospective adoptive his child’s order, to injunctive did not violate the the court Thus, parents their residence. merely point. location of remained silent on this determine, jury permitted regard, In this Anne did not refuse to release County prior placement, I don’t 63. We limit our discussion of the evidence to Cabell to the alleging we indicated of action fraud as we think would here. Mr. Leavitt John’s cause have jury, objection any party, to the without that Anne cannot be held liable to determined this was the first case of this nature that had present John for tortious interference in the case. every judge gone ever to trial and that other in supra See Section II.B.2. country had thrown these cases out. And what I different about this case is this is a find determine, issue, resolving 64. While we you proactive plaintiff case where have a who jury findings could based its that the have sought prior relief birth. liability upon for fraud voluminous evidence in- interrogato- For the text of the above-referenced order, dependent injunctive we wish to ries, supra see note 56. jury's indicate that the consideration of the in- Furthermore, responding interroga- to these junction require does reversal of its verdict tories, appears jury may that the have consid- properly as it could have considered such evi- did, fact, ered whether Anne and Leavitt dence as indicative John's efforts establish knowledge injunctive despite John's order fact, parent-child relationship with his child. In inability personally upon serve this order reaching specifically inquire its decision to Anne. We decline to address the effect of these jury knowledge as to the of defendants Anne upon jury’s finding interrogatories Leav- injunction prior Baby Boy Leavitt of the itt committed fraudulent and tortious acts as his Conaty's adoptive placement, the circuit court appeal presently supra is not before us. See explained, as follows: Nevertheless, Section II.A. for the same reasons case, replete propose upon finding As I look at the I to offer to the relied that the record was jury interrogatory, give injunctive I like exclusive of the order and would evidence you you why. liability tell could have based its it to I think some of which the fraud, jury’s uniqueness that the [sic] of this case revolve around the determinations for find special interrogatories place- responses do not efforts of Dr. Kessel in advance of the frankly, jury’s Quite had Dr. necessitate the reversal of the verdict in ment. sought Kessel jurisdiction of the Circuit Court this case. objection give court’s refusal to just to a lower one occasion. Rath- information on such “objects if requested instruction er, protested that Anne indicates the record he/she jury arguments thereto are before at least three occa- on such authorizations distinctly, any given begun, stating as to ultimately complied with the sions instruction, objects matter to which he contempt only pain on directive court’s objection[.]” grounds and the of his W.Va. rigid charges. constraints Given time part. party R.Civ.P. Rule Where has involved, jury could have inferred that objection properly preserved for re- “buy meant to more time” his/her refusals were such Court, by this we consider whether a view adop- success of the Canadian to ensure the particular jury refused instruction tion. granted by trial court should have been ex- Anne’s jury The also could have discerned (1) amining correctly whether the instruction fraudulently in- conceal from John efforts to law; is substan- states the instruction post- pertaining to their child’s formation tially jury charge; in the covered elsewhere from the fact that she birth whereabouts point the instruction concerns a so name when she entered the used an assumed substantially affects crucial that its omission preparation for her child’s birth. hospital effectively ability present defendant’s Moreover, Anne trial evidence indicated that Wade, 200 defense. State v. his/her not decide this name at the time did 646, 490 S.E.2d at 733. actually hospital, entered the but she Reviewing proceedings the record of the early planned, at least that she had since during particular which this instruction identity. July, the fictitious to use refused, any we are unable to locate distinct- jury was left to determine wheth- While the therefor, objection, grounds ly stated or the herself, Anne, devised this scheme or er respect to Defendants’ Instruction provided by the idea was one of the whether Accordingly, appellate Number 46. our re- defendants, remaining and whether she be- view of this issue is foreclosed. identity lieved such an assumed was neces- Bern, Jordan v. 210 S.E.2d 618 per- sary protect herself from what she (“Where objection an an is made to John, jury to be threats from ceived appeal for the first on instruction time could have concluded that the nevertheless such instruction is not so deficient so as employment of this alias had the effect of rule, in require ‘plain error’ invocation inhibiting to locate his further John’s efforts W.Va.R.C.P., this consonance with Rule parent-child newborn child and to establish a objection.”). the late Court will not consider in- relationship As the with him. numerous conduct discussed ferences of fraudulent Nevertheless, if we address even are no means exhaustive above assignment of the merits of the defendants’ from which the could record evidence ground, that the error on this we determine behavior, charged Anne with fraudulent reversible harm circuit court did not commit apparent it is that the circuit court’s refusal by refusing particular ful instruc error of the defendants’ instruction did not consti- correctly It that the instruction tion. is true tute reversible error. law, generally that is an applicable stated the injunction injunction an is of no effect where Lastly, charge the defendants posted where the bond has not been erroneously refused their the circuit court issuing judge findings to dis has not made proffered pertaining to the effect instruction requirement. pense with the bond post injunction failure to bond of John’s (1923) (Repl. respect, W.Va.Code 53-5-9 require him failure to and the circuit court’s Vol.1994)specifically mandates: No. to do so. See Defendants’ Instruction injunction injunc (except An in the case of They lack of an contend that the representative, person specific personal or other coupled tion bond absence whom, opinion in the of the court or findings by court that securi the circuit same, may be im- judge awarding the ty required parte rendered the ex was not bond) require not take ef- injunction party proper A shall temporary ineffective. given penalty in such fect until bond be may preserve appellate review his/her direct, injunction required judge awarding may whether an bond will be the court or it party specific depen in a case is of a certain pay judgment the or de- with condition enjoining upon prerogative the of the enjoined) dent (proceedings on are cree which judicial interpretation of that court. Our be awarded and all such costs recognizes standard that there will occasion injunction, party obtaining the against the ally and circum be cases which the facts damages as shall be incurred and also such simply compel posting of stances do not by person enjoined, in or sustained bond, i.e., injunctive “good cause” an where injunction dissolved[.] case the be determining been In whether a has shown. Furthermore, recognized the this Court has “ case, required given in a bond should be injunctive necessity ‘[a]n an bond: order enjoining court should consider the reason legal injunction no effect under ... is of injunctive requiring posting an [Code, 53-5-9], requires unless purpose injunction an [of bond] bond. “The bond, or recites in the order that no bond is protect the defendant all cases is to cause, required good or unless mov- against damage by loss or reason Syl., personal representative.’ Pt. 4 ant is a injunction finally in case the court decides Co., Meyers [Washington Heights] v. Land plaintiff that the was not entitled to it[.]” 632[, Syl. ].” 107 W.Va. 149 S.E. 819 § Injunctions at 1115 Am.Jur.2d pt. McLuckey, v. Hall W.Va. (footnote omitted). v. See Pioneer Co. S.E.2d 280 Hutchinson, 276, 290, 220 However, correctly did not instruction (1975) (“The purpose injunc of an pertained state the law as it to the facts party initiating require tion bond is to appeal. phrasing underlying the instant The injunctive process protect persons instruction, “[y]ou are instructed that rights prejudicially whose are affected from injunction by the Circuit Court issued injury.”), by damages or over loss occasioned no effect because no bond had been was of ruled, grounds part, by on other State ex given Judge made no find- and because Corp. Ginsberg, rel. E.D.S. Fed. required” (emphasis ing that a bond was not (1979); Meyers 259 S.E.2d 618 v. Wash added), would seem to indicate that the bond Co., ington Heights Land at W.Va. requirement completely disregard- had been (“The purpose intent and 149 S.E. 823-24 by issuing parte the circuit court the ex ed [W. 53-5-9] of the statute Va.Code is man injunction. temporary This is not a correct ifest, injunc- namely, that he who invokes the characterization of the court’s resultant rul- process proper [sic] tive of the court must be ing. accurately represent The defendants guarantee good any person to make bond injunc- required post that John was by prejudicially whose are affected receiving injunctive tion bond relief injunction injuries damages all thus requested. incorrect- he had The defendants him.”). occasioned to See also indicate, ly though, the circuit court Jean, Loup R.R. Deepwater Glen Lower & findings failed to make that no bond was Kanawha, Co., Jean & E. R.R. Co. Glen injunctive required. Both the order and the (“Where 35 S.E. 978 no transcript injunction hearing suggest required, damages has been are not bond the circuit court that an determined recoverable, injunction unless the was mali injunction required bond was not because cause.”). out, ciously probable sued without good dispense cause existed to with this man- Here, the court that Anne determined would regard, specif- date. the circuit court tempo not be harmed the issuance of the ically “[t]hat [Anne] ruled will not harmed rary injunction, presumably and thus con Injunction granting Temporary of a if cluded that she was not harmed preventing placing her from the child for issuance, injunction’s would she likewise suf adoption prior to the establishment of injunction ultimately damages fer no if the paternity.” [John’s] improperly would be found to have been Thus, that, Despite statutory granted. contrary the strict re seems bond, assertions, injunctive in quirement of an for all defendants’ the circuit court did purposes contemplate be neces- tents and the final determination of whether bond would objection and, finding timely this injunction’s dants to raise forecloses sary to the issuance by ability rely way dispensed their on this defect enjoined party, harm to the no See, jury e.g., proffered their instruction. requirement. 1, Johnson, 181 W.Va. Jenkins Furthermore, may argued it that (“ curiam) 281, (per ‘In 382 S.E.2d they any right had to defendants waived the power of its a court the exercise inherent injunctive challenge of an bond. the absence equity may, adjournment after the of the By timely raising this issue before the permanent term at which final decree a court, they effectively issuing foreclosed their awarded, injunction modify preventive was ability proffered in their to raise this issue injunction, notice, by or after due vacate jury Syllabus point of Ches instruction. suit, subsequent proceedings in the same Patton, apeake Railroad Co. v. & Ohio injunction was after whether awarded (1872), held, part, “[a] in W.Va. 234 litigation parties, of the or consent when ought time party to be allowed a reasonable that, clearly appears change of a because in after his attention is called to defect controlling in the facts or the relations of the notice, bond, [injunction] by rule or injunction parties the law which the or bond, proper and on his which to execute rests, unjust inequitable. its continuance is or injunction ought to be failure to do so the 60(b)(5) in Rule [This rule is now embodied then, Impliedly, it would seem dismissed.” Rules of Civil Proce- West enjoined party an can obtain that before Edlis, amended, Syllabus dure.]’ Point injunction an without the relief from issued Miller, Inc. v. 132 W.Va. 51 S.E.2d bond, appropriate must raise the issue he/she (1948).” (brackets original)). See also injunction party obtaining permit 60(b) (requiring party Rule W.Va.R.Civ.P. alleged opportunity an to cure the defect. order, seeking judgment, “final relief from Jean, R.R. Loup Deepwater Lower & Glen proceeding” to make motion within Kanawha, Co., & E. R.R. Co. v. Glen Jean time,” and, “reasonable for certain enumerat- (“It at 978-79 becomes W.Va. at 35 S.E. reasons, eight ed within “not more than injunction the defendant to an suit to see order, judgment, pro- months after the given, good and sufficient bond is and taken”); ceeding entered or Savas v. so, can no dam unless he does he recover Savas, 319 n. 382 S.E.2d 181 W.Va. cause, ages, presence probable (1989) (“The 513 n. term ‘reasonable malice.”). in the absence of See also West susceptible precise defini- time’ is not of a Virginia Secondary Sch. Activities Comm’n This statement is made at C. tion. Wagner, Miller, Wright A. Practice & [Federal & (1958) (“If the circuit court had [ ]: 2866 at 228-29 ] Procedure ‘ injunction jurisdiction and the to issue the reasonable time must “What constitutes penalty because the bond is insufficient necessity depend upon the in each indi- facts clearly inadequate, upon proper the court The courts consider whether vidual case.” require should the execution of application prej- has been party opposing the motion designated period of bond within a sufficient delay seeking by the relief udiced and, comply with that time for failure to moving party they had consider whether presumably requirement, would should failure to take good some reason for his added)). injunction.” (Footnotes (emphasis dissolve omit- appropriate action sooner.’ omitted)). ted).” (additional gen- citation See apparent It from the record of this is not Resources, erally Page v. Natural Columbia case, com- though, that the defendants ever Inc., 378, 391-92, 480 S.E.2d the circuit plained of this defect to either purpose of (recognizing the 830-31 John, party obtaining the in- court or (to objections requiring timely instruc- junction, permit as to either or both of so tions) oppor- permit the circuit court is to remedy perceived error. As the them to errors). alleged tunity to correct prompt raising perceived errors is of such they adequately of our review can be the first element crucial to ensure Because error result- appropri- ascertaining whether reversible expeditiously remedied requested court, give ed from a court’s refusal circuit the failure of the defen- ate i.e., satisfied, sending agency comply shall wheth- unless has not been instruction every requirement forth correctly appli- each and set stated er the instruction law, applicable and with the laws not further address this this article cable we need place- Therefore, receiving governing circuit we find that the state matter. refusing give by Defen- of children therein. court did not err ment 46. Instruction Number dants’ 111(a) 49-2A-1, § art. W.Va.Code section, (Repl.Vol.1996). Interpreting this and Applicability ICPC UCCJA 2. of a the circuit court noted that the definition argue next that the circuit The defendants “sending agency”66 person, and includes a by granting instructions court erred John’s considered a “send- therefore Anne could be reciting language of the Interstate Com- the ing agency” under the ICPC. pact [hereinaf- Placement of Children on the Finding that the of Cabell Circuit Court Custody and the Uniform Child ICPC] ter County acquired jurisdiction par- had UCCJA], Act [hereinafter Jurisdiction paterni- inverse ties’ child virtue of John’s applied by informing the that the ICPC ty suggested circuit proceeding, the court pro- underlying adoption to the Canadian inference from the evi- reasonable [a] each of these ceedings. We will address Conaty dence is that Anne and Mr. Leavitt issues turn. the knew of Dr. Kessel’s claim and knew of court, yet placed Virginia the acts of West the Placement Compact a. Interstate on [adoptive parents] the child with (ICPC) Children Alberta, Canada, in part at least because complain that The defendants first adopted province has not Alberta erroneously determined that the circuit I.C.P.C.[67] adoption proceed applied to the ICPC65 that “when The court further concluded Conaty. ings involving Baby Boy Prior to Conaty Virginia January Anne left West matter, underlying trial in this the circuit least contem- she was at that time at court, during pre-trial hearing, a determined plating adoption and had in fact been designed protection that the ICPC “is for the Construing discussed.” the above-stated placed who are across state lines of children provisions conjunction inter- with its addition, ICPC adoption. Act estab [In t]he for facts, pertinent pretation of the the circuit orderly procedures for the interstate lishes court found responsibility placement of children and fixes placing

for those involved of the child.” expectant mother a state where crosses (a) specifically, of Article III More subsection plan part placement line as a of a compact provides: arrangement adoption, the transaction sending agency bring place- be viewed as an interstate [or] No shall send should permit party any ment. To hold otherwise would ... into other state child adoption expectant safeguards preliminary possible ... a to a mothers to avoid the as agency” "sending Compact the Placement of 66. The ICPC defines a as "a 65.The Interstate on ICPC], state, thereof; codified at W. Va. party employee [hereinafter Children officer or a subdi- (1975) (Repl.Vol.1996), state, §§ -2 Code 49-2A-1 to party employee vision of a thereof; or officer or provides procedure to be followed in the inter- state; person, party cor- court of a Generally, adoption state requires of children. the ICPC association, poration, agency or other charitable "sending agency,” which be a sends, entity brings, which or causes to be sent individual, state, agency, complete pre- brought any party child to another state.” W. adoptive placement forms which are submitted 49-2A-1, 11(b). § Va.Code art. compact in both the "send- administrators "receiving intent state” and the state”. The However, recognize that Leavitt the court did procedure to ensure that children of this had filed certain ICPC documents with the Cali- placed adoption jurisdiction in a other than June, 1991, respect to fornia authorities in of child their home state will receive benefit Baby Boy attempted placement Cona- the first adopting they and that welfare laws in state family. ty involving Oregon placed adoptive will be into suitable environ- (recit- 49-2A-1, Va.Code art. I ments. See W. ICPC). ing purposes of duty mechanically parties comply had with the children the I.C.P.C. to requirements of ICPC and delivery. West point of manipulating the reciprocal California statute. directs that the 10 of the I.C.P.C. Article “liberally to ef- compact ... construed (as 58(a) Plaintiffs Instruction Number pur- purposes”- And that its fectuate amended). granted, The circuit court also children, protect not to protect pose is to amended, Plaintiffs Instructions Numbers is not parents. The I.C.P.C. verbatim, practically quoted, 59 which rights, but nor is protect Kessel’s language of the California West Vir- Conaty permit Anne construed to it to be ginia provisions,70 and which the ICPC her child protections to avoid objected. defendants the intent simply going to California with Court, appeal the defendants On to this Therefore, application. as a avoid its given by that the instructions contend ICPC law, the this Court finds West matter of First, they the trial court were erroneous. 2A, Virginia Chapter Article Sec- Code give complain the court’s decision to and applies to the facts of this case tion suggested to the these instructions the particularly placement to the of more adoption procedures the jury that the for July 1991 in baby boy Conaty born on Boy Conaty adoption Baby had Canadian of Angeles, in Hospital Los Cal- Cedars Sinai though complied not been with even Canada ifornia, Conaty. to Anne despite and the is not a member of the ICPC conclusion, Reaching the court further adoption the Alberta finalization of the revealed, prof- during its examination of Next, that no court. the defendants indicate instructions, that its decision was fered supreme found the other state court has based, Opinion part, in on Secretariat in- applicable to the situation to be ICPC 30, 1986,68by the Secretariat rendered June A in this case: a mother State volved reaffirmed The circuit court of the ICPC.69 B delivers her where she travels State applica- to find the ICPC earlier decision its adoption with places child and him/her Baby Boy Conaty and adoption of ble to the support B. In of adoptive parents in State jury, over the defendants’ ob- Batt, instructed they Yopp v. position, cite their jection, (1991). that: The Ne- 467 N.W.2d Neb. ruled, Yopp, Supreme braska Court has ruled that the West

the Court above, because the scenario described applies placement to the of the under ICPC adoption in placed Conaty the child was born Anne and John child born to [sic] child had never B because the Consequently, July 1991. State Kessel on interstate, placement process is inter- question is opinion of wheth- ment addressed the 68.This "placement” Article A from state. The definition who comes to State er "a birthmother interpretation. give supports and then also in order to birth II another state couple Reprinted Public Welfare Associa- places [can] a State A in American her child with tion, 3.105- thereby application Compact Manual [the] avoid Interstate Com- I Administrator’s (n.d.). pact on the Placement Children”: 3.107 expectant a state mother crosses Where the governing is the The Office of the Secretariat arrange- placement plan and part of the line as ment, of the body the administration which oversees be viewed as an transaction should throughout states in the various member ICPC enacting Com- placement. interstate advisory opinions States and renders the United legislatures was not pact, intent of the state Compact’s of the application and effect as to the depend protections placements to make provisions. delivery manipulation on mechanical nothing logistic calculations are point. Such in effect at version of the ICPC 70. The California subterfuges and studied efforts than more Baby Boy adoption Cona- the time of the 1991 consequences and normal inte[n]ded avoid the Family §§ 264 to 274 ty Code is contained in Cal. directs that Article X of the ICPC of the law. Vol.1994) (1974) (Family Appendix to Main Code "liberally Compact construed to effectu- §§ Family 7900 to 7910 Code Cal. [current (1992) purposes.” forth in Article I ate As set its ICPC, Vol.1994)]. (Main Virginia's West pattern proce- in the entire evidenced California, virtually to that of identical throughout which is requirements specified dures and §§ to -2 W. Va.Code 49-2A-1 is located in Compact, emphasis is on interstate (Repl.Vol.1996). arrange- arrangements. If the character of Moreover, underlying adoption proceedings. A to or become a resident State traveled birth, apply distinguishes did not be- the case cited the de- after its ICPC John in- placement was not considered support position, Yopp cause the of their fendants Id., 792, 467 Batt, 237 Neb. at terstate nature. indicating Yopp that the facts of did not N.W.2d at 878. biological involve the of the child’s suggest any attempt by the child’s father or construing precise language of Finally, biological mother to traverse state lines provisions, the defendants main- the ICPC attempt compliance proce- with the to avoid they simply apply do not tain that dures mandated the ICPC. adoptive placement at issue in this case. First, “child” is the word not defined as replies further that the circuit court Citing including unborn children. W. Va. correctly Anne determined that send- 11(a) (“ 49-2A-1, art. ‘Child’means a Code ing agency under the ICPC as other states’ who, by minority legally reason of person parent courts have found that a can be a subject parental, guardianship or similar sending agency within the ICPC’s definition control.”). Furthermore, the definitions of Franks, Citing term. J.D.S. agency” “receiving spe- state” “sending (1995); Adoption Ariz. P.2d 732 In re cifically designate applicability in terms their No. 324 Md. 597 A.2d 456 sending receiving “child”.71 Finally, relying upon Opinion the Secretariat Construing ruling, the circuit court’s the de- the circuit its which court based deci- effect of such wide- fendants submit that the sion, John contends that Anne should have applicability the could con- spread ICPC appropriate the documentation with the filed ceivably every through to or render state Virginia compact ICPC administrator. West potential pregnant which a woman travels a Anne, regard, proposes this John as They receiving pursuant to the ICPC. state sending agency whose was in domicile West that the result obtained under also indicate Virginia, in should have filed the ICPC forms impos- creates an the circuit court’s decision West and that such forms should Anne, legal sending agen- sible fiction: as California, receiving sent to the have been California, cy, placed her unborn child into state. herself, with until child was born after adoption placed which she her child for into Typically, party’s when we review chal- precisely The ICPC excludes from Canada. lenge particular given by a to a instruction placement by application its a child’s court, his/her substantially trial we defer to the family parent with a relative or other mem- court’s to so instruct the discretion 49-2A-1, § Citing art. ber. W. Va.Code only if the circuit court reverse has abused VIII(a) (“This (a) compact apply shall not to: in its discretion such a manner as to consti- sending bringing The of a child into a or Evaluating tute reversible harmful error. receiving parent, stepparent, state ruling parties’ the circuit court’s sister, grandparent, adult brother or adult arguments, participants we note that all ex- aunt, guardian leaving uncle or or his amining applicability of the ICPC to the any nonagency child with relative or Conaty adoption Baby Boy Canadian state.”). guardian receiving in the primarily upon application focused of the statutory language to the facts and circum- disputes interpreta- the defendants’ controversy. underlying stances being We inapplicable tion of the ICPC find, however, approach Baby Boy the better Conaty’s adoption proceedings. determining governs whether the He first ICPC asserts whether Canadian adoption looking upheld adoption Baby Boy at issue involves first to the Cona- ty precise language respect is irrelevant to whether the of the statute to ascertain with drafters, provisions crafting proce- of the whether the these ICPC were violated placement supra agencies, 71. See note 66 for the definition of "send- or and whether for ing agency". interprets placement The ICPC the term "re- public state or local authorities or for ceiving state” as "the state to which a child is agencies persons.” private W. or Va.Code sent, brought, brought, or to be sent caused or 49-2A-1, 11(c). § art. by public private persons whether authorities or dures, the situation with which we feet as to the state affected as to all envisioned sever- able are now faced. matters. 49-2A-1, § (emphasis W. Va.Code art. X Reading provisions of the the various added). parties and the circuit

ICPC discussed court, similarity: note one common these thread, From this common we ascer main, provisions, “party in the refer specifically tain that the drafters of the ICPC I, setting example, states.” For Article forth compact govern adoptive intended the specifically compact’s purpose, provides, placements party involving Perhaps states. policy purpose party “It is the telling most drafters’ intent cooperate states to with each other regard is the statement of enactment intro children_” placement interstate W. ducing provisions: compact’s “The inter added). 49-2A-1, (emphasis § I Va.Code art. compact placement state on the of children is Likewise, effectuating the directives for hereby enacted into law and entered into proper placement compact under the contem- jurisdictions with all other legally joining plate transportation party of a child from one substantially therein in form as follows[.]” placement par- state and into another his/her added). (emphasis W. Va.Code 49-2A-1 ty state: frequently We have held that send, sending agency bring, No shall “ statute, interpreting [w]hen ‘[t]he brought any cause to be sent into other primary object construing a statute is to

party placement in state child for fos- give ascertain and effect to the intent of preliminary possible ter care or as a to a Legislature.’” Syllabus of Snider v. adoption sending agency unless shall Commerce, Virginia Department West comply every requirement with each and (1994), quot- S.E.2d 363 appli- set forth in this article and with the v. Comp. Smith State Workmen’s receiving governing cable laws of the state Com’r, 108, 159 W.Va. 219 S.E.2d 361 placement the of children therein. (1975). To determine the true intent of 111(a) legislature, the 49-2A-1, § courts are to examine the (emphasis W. art. Va.Code added). entirety “any statute in its not Moreover, though and select not cited the section, sentence, court, X, single part, provision, parties or the Article which discuss- phrase Syllabus 3, or word.” Point in construing compact, es the manner of the Co., part, Pristavec v. 184 requires Ins. such construction to be consistent Westfield 331, (1990). 400 W.Va. S.E.2d 575 the party constitutions of the individual states: 2, Kirk, Syl. 695, pt. Mills v. Van 192 W.Va. (1994). provisions compact 4, Syl. pt.

The of this shall be 453 S.E.2d 678 See also liberally pur- construed to effectuate the State ex rel. Hechler v. Christian Action Network, 71, 491 poses provisions thereof. The of this com- 201 W.Va. S.E.2d 618 ‘(“ intent, pact any phrase, legislative if ascertaining shall be severable and “In effect clause, provision given part sentence or of this com- must be to each of the statute and pact contrary accomplish is declared to be to the statute as a whole so as to any party general purpose legislation.” Syl. constitution of state or of the the applicability 2, Compensa United States or the thereof Pt. v. Smith State Workmen’s Commissioner, any government, agency, person or cir- tion 159 219 W.Va. (1975).’ invalid, validity Syl. pt. cumstance is held the ex rel. S.E.2d 361 State Hott, compact the remainder of this and the Fetters v. 173 W.Va. 318 S.E.2d (1984).”). noted, applicability any government, thereof As we have we find the agency, person composing or circumstance shall not intent of the drafters and the thereby. compact Legislature adopting be affected If shall the ICPC to be the contrary regulation adoption proceedings among be held to the constitution of thereto, party compact jurisdictions state the shall re- those which have subscribed to policies procedures main in full force and effect as to the delineated there the remaining party states and in full force thereto. and ef- so as to become states incorporated the affirmatively adopted and legislative

Having determined compact into their own bod- provisions determine we next must plain, be intent to Accordingly, have on we hold that provisions of the ICPC ies of law. the effect proceedings. Once Placement of underlying adoption Compact on the Interstate manifest clear and (ICPC), have ascertained in W. Va.Code we set forth Children intent, proceed to review next legislative 49-2A-1, govern pre-adop- seq., § et does statutory enactment. language of the placements into a state or adoptive tive or “ statutory provision which regard, ‘[a] party state to which is not nation expresses unambiguous plainly clear and ICPC. interpreted will not be legislative intent open- apparent that the drafters it is While given full force and be by the courts but will possibility of Canada ly contemplated the Syl. Epperly, v. Pt. State effect.’ compact becoming party state under (1951).” Syl. pt. 65 S.E.2d result, deliberately such a see facilitated Jarvis, 635, 487 S.E.2d 199 W.Va. v. State IX, 49-2A-1, lo- art. we can W. Va.Code West See also Canada, authority to indicate cate no Re and Human Health Department of Alberta, Canada, whole, particular, L., Wright v. David ex rel. sources adopted provisions ICPC had (“1 always “Courts adoptive placement.72 the 1991 the time of legislative in give effect to the endeavor adoptive clearly regulates Compact theAs unambig tent, that is clear and but statute states, only involving party placements and not construed.” applied uous will govern the of the ICPC do not provisions Elder, Syllabus Point State Conaty.73 Baby Boy adoption of Canadian (1968).’ 571, 165 Syllabus Point S.E.2d Boatright, 184 W.Va. of State ren Finding the instructions (1990).”). pertaining circuit court dered statutory language of the applicability Compact’s plain lan Applying the erroneous, we next resolve were ICPC surrounding guage to the circumstances prejudiced the defen error so whether such placement Baby Boy Conaty’s pre-adoptive reversible harmful er dants as to constitute Canada, the circuit we conclude into not. As the circuit ror. We decide did ruling applied that the ICPC court erred noted, astutely primary pur very plain language of proceedings. The to these provide notice of pose of the ICPC is not to Compact, the inherent as evidenced biological adoption proceedings potential intent, govern adoption proceedings be is to parents’ rights to parents protect or to such specifically and jurisdictions that have tween "state,” parties court in upon circuit precisely we relied not as 72. While Canada is term, elementary commonly employ positions issue. The support such an their on this conclusively Canada Yopp does not exclude rely primarily upon distinction the case defendants state,” "party contemplated becoming (1991), from by as of the Batt, 237 Neb. 467 N.W.2d ICPC, language Compact as the John base their whereas the circuit court and specifically intended to that the drafters indicates permit tions, Opin upon the June Secretariat stance including foreign jurisdictions, na- other distin We both of these authorities ion 49. find provisions adopt compact and utilize the the case guishable the circumstances of sub 49-2A-1, § they W. Va.Code so desired. See if contemplated adoptive judice they both ("This joinder compact open shall be art. IX involving jurisdictions, placements two each state, by any territory possession United or of the See, e.g., adopted Iowa the ICPC. which had Columbia, States, the Common- the District of (West 1985) §§ 232.158 to 232.166 Code Ann. (West Rico, and, wealth of Puerto consent Vol.1994); § 43-1101 Main Neb.Rev.Stat. any prov- Congress, government Canada or Vol.1993). contrast, (1974) (Reissue By the in added)). (emphasis ince thereof.” one appeal involves a situation wherein stant California, that, Virginia although jurisdiction, or we exam- either West 73. We wish to note ICPC, jurisdiction Virginia applicability the West ICPC but the other ined the had enacted the Alberta, adoption proceedings, we are placement, Canadian participating adoptive to the in the finding inapplica- quite such, Canada, certain that a similar holdings of these As had not. bility from a detailed examination would result not instructive to our resolution authorities are provisions. of California’s ICPC of the matter at hand. inapplicable, deeming the ICPC to be necessary to address the authorities also deem it relationships given extremely maintain lengthy jury establish or with their charge in Rather, objective case, main find, children. we cannot any nor do we have protect is to the children believe, ICPC involved reason to that either the circuit court multi-jurisdictional adoptive placements to jury placed emphasis undue on these safe, they placed will ensure that into particular Finding instructions. no revers- secure, adoptive and suitable families. To harmful respect ible error with to the ICPC goal, facilitate this the ICPC establishes dis- instructions, we now shift our focus to the guidelines tinct be followed such inter- assignment defendants’ regarding of error placements. state While the ICPC also the circuit court’s UCCJA instructions. impliedly protect parents wrongful from the adoption pre-adoptive placement of their b. Custody Child Jurisdiction Uniform children, specifically it does not enumerate (UCCJA) Act rights enjoyed by parents. Thus, The defendants also assert that the the circuit court’s erroneous instructions re- permitted circuit court should not have citing provisions of the California and jury portions to consider as UCCJA74 Virginia West ICPC enactments and inform- inapplicable this law is to the facts and cir jury applicability as to their cumstances of this case. The circuit court underlying adoption proceedings do not rise based its pertained decision that the UCCJA Any to the level of reversible harmful error. adoptive placement Baby Boy Anne’s inference of the defendants’ fraud or tortious Conaty into Canada W. Va.Code 48- affecting jury conduct John’s that the 10-15(a)(2) (1981) (Repl.Vol.1996), pro which could have deduced from these instructions vides “[i]f court of another state has made slight given

would have been the ICPC’s custody decree, a court of this State shall primary concern with the welfare and well- modify that decree unless ... being adopted pre-adoptive children. jurisdiction.” court of this State has Ex Moreover, jury if even the based deter- its plaining reasoning, its the court stated as fraud, liability part, mination of on follows: instructions, these such reliance does not I found that applied [the UCCJA] mandate reversal. Much as we noted with because it was in the best interest of the respect 'parte preliminary injunc- to the ex parents, they child and the because had a tion, replete the voluminous record is significant connection with West fraud, evidence of exclusive of these instruc- Virgi- and that there was available West tions, upon which the could have based concerning nia substantial evidence liability findings. its In addition to the evi- present care, protection, child’s or future wrongdoing by dence of defendants Leavitt training personal relationships. above, and Anne discussed the evidence indi- remaining participated cates the ruling, defendants In accord with this the circuit court amended, in the granted, fraudulent concealment of information Plaintiffs Instructions pertaining Baby Boy Conaty’s extensively quoted birth and Numbers 56 and 57 which whereabouts, pre-adoptive and that Virginia there ex- from the California and West enact- isted concerted mass effort to interfere ments of the UCCJA.75 the record While parental rights. Furthermore, objection with John’s specific reflects the defendants’ Custody § The Uniform Child Jurisdiction Act Code 48-10-3. See also W. Va.Code 48-10- UCCJA], [hereinafter contained in W. (describing UCCJA). Va.Code purposes 1 (1981) (Repl.Vol.1996), §§ 48-10-1 to -26 has as primary purpose its the efficient resolution of 75. The California version of the UCCJA effective custody disputes parties child where the involved Family §§ in 1991 is codified in Cal. Code jurisdiction. reside in more than one manner, In this (Family Appendix to 5174 Code to Main Vol. the UCCJA facilitates the decision of 1994) Family §§ Cal. [current Code 3400 to 3425 custody having child matters the state the (1992) (Main 1994) Vol. ]. The West UC- prolonged most recent and contacts with the CJA, substantially which contains the same statu- child; complete knowledge the most of his/her tory language legislation, as the California care, protection, training personal "future and §§ located at W. Va.Code 48-10-1 to -26. relationships”; guard opportunity or the best to safe- well-being. health or See W. Va. his/her California, custodian, then were located Instruction in Plaintiffs language certain the you may that California was the UC- find pertaining to California Number challenged under the UCCJA. CJA, excised “home state” the circuit court given instruction language from the amended that suggest to this Court The defendants objection by the de- jury. No other to the instructing the circuit court erred so the appears on two instructions fendants to these inapplicability of the UCCJA jury given the decision to circuit court’s record of the the They proceedings. adoption to the Canadian grant- court also The circuit grant the same. adoption was final- propose that the because objection, specific ed, defendants’ over the Canada, has not Canada ized because (as amend- Number Plaintiffs Instruction UCCJA, not the does adopted the UCCJA “home state” ed), the term defined which adoption proceedings. apply the Canadian thereof construction pursuant to the UCCJA contend, they as did defendants also The it could find that instructed instructions, respect the ICPC was the Virginia or California either West in- give the court’s decision to UCCJA Conaty: Baby Boy home state question in have created a structions could jury that for The instructs Court propriety of the jury’s mind as to the UCCJA, remains a state purposes of of the adoption despite the decision Canadian state”[76] for a reason- of a child the “home ratify proposed adoptive court to Alberta if child has period of time even able placement. state one concealed another been parents. Furthermore, complain the defendants you that John Kessel Accordingly, simply apply if find not that the UCCJA does Conaty significant ties with had there was no inter- proceedings and Anne at hand as Virginia, custody and that evi- interjurisdictional dispute. of West State state care, regarding child’s future dence support position, the defendants of this personal relation- training, and protection, prior decisions con- indicate that all of our normally from the ships, comes which cerning applicability of the UCCJA con- persons other who parents, child’s from custody disputes the contes- cerned wherein care of the might entrusted with the jurisdictions. tants resided in two different testify child, persons can Rock, who Citing Rock parent competence L.E., (1996); about the In re Brandon S.E.2d 540 custodian, Virginia, (1990); were located West Escudero W.Va. 394 S.E.2d present in that the child was Cali- the fact Henry, 395 S.E.2d consequence, and Vir- no West (1990); fornia is of Hegner, 173 Brockman v. under the

ginia (1984). Furthermore, the “home state” was still Custody Act. Uniform Child Jurisdiction only suggest defendants UCCJA living custody disputes pertaining to hand, you governs if find On the other children, yet been not those who have preponderance evidence that John Wilner, Citing Misc.2d Conaty significant born. In re Kessel and Anne had (1993) (“The key California, 601 N.Y.S.2d and that ties with the State state’, care, definition, makes it clear that of ‘home regarding the child’s future evidence Custody Act Jurisdiction] protection, training, personal [Child relation- the Uniform designed apply only children who normally ships, comes from which born.”). con- The defendants thus persons who have been parents, child’s from other right that since defendant Anne had might the care of the tend be entrusted with adoption, unilaterally place her child for child, testify can to persons from who adoptive placement had been corn- parent as once the competence of the about old, UCCJA, the child lived purposes the state in which months 76. For of the any persons of the named. birth in which the “[h]ome state” means the state any temporary of the absence of Periods immediately preceding the time involved child part persons counted as of the six- named are person parents, parent lived with his or period[.] acting parent month other at least six consecutive as 48-10-2(5) (1981) and, (Repl.Vol.1996). § W. Va.Code a child less than six months in the case of

169 courts, (internal pleted, longer proper party Anne no quo- must be deterred.” omitted)). any custody proceedings brought by John. tations and citation Therefore, the defendants contend that the urges Virginia, John that West as the finding circuit court erred in the UCCJA state, jurisdiction home retained to deter applicable to this case. custody mine all regarding boy. issues Because Anne fled with the child to another responds claiming John that the circuit jurisdiction, John appropriate claims the properly determined the UCCJA to be remedy, here, which was not observed would applicable proceedings underlying to the jurisdiction have been for the other to decline appeal. He asserts once Anne decided custody entertain the Citing suit.77 W. relinquish parental rights Baby Boy her 48-10-8(a) (1981) § Va.Code (Repl.Vol.1996) he, Conaty, biological as the child’s other (“If petitioner for an initial decree has parent, superior right had to his son’s wrongfully taken the child from another state custody against parties. Citing all third engaged or has reprehensible similar con Court, Superior Caruso v. 412 100 Ariz. duct, asylum the court [in the state] (1966). Thus, P.2d 463 John claims that jurisdiction decline to just exercise if this is pre-adoptive placement Anne’s of their child proper circumstances.”); under couple with the Canadian entitled him to Boston, 706, 716, Sams v. 181 W.Va. 384 interjurisdictional maintain custody proceed- (1989) (“We persuad S.E.2d are not ings, applied. to which the UCCJA Accord- suggestion ed that a court in the state ingly, John paterni- contends his inverse to which the children were abducted should action, ty instituted the Circuit Court try custody be allowed to solely case County, Virginia, Cabell West constituted because the children’s welfare is the control custody proceeding. such a ling guide. ‘The court in State A [from which the children were abducted] knows as that, pursuant John also maintains well as the court in B [to State which the UCCJA, Virginia West was the home state of children were abducted] the child’s wel Baby Boy Conaty given that both of his ” controlling guide.’ (quoting fare is the Reed parents Virginia were West residents and 367, 370, High, Pa.Super. 385 A.2d significant West had other contacts (1978))). 1384, 1385 with the child. additionally suggests John jurisdiction may Moreover, that a remain the argues home that the UCCJA is state of a child applicable even where adoption proceedings has been because he/she jurisdiction by way absent from that proceedings custody of ab- affect the duction or Citing parents by concealment therefrom. permanently terminating child’s 48-10-2(5) (1981) §§ W. (Repl.Vol. Va.Code rights. Finally, such custodial John asserts 48-10-3(a)(l) (1981) 1996), (Repl.Vol.1996); that the fact that Canada has not enacted or Boston, 706, 717, Sams v. adopted provisions otherwise of the UC- S.E.2d See body also McAtee v. CJA not render inappli- does of law McAtee, underlying custody dispute. cable to the W. (1984) (stating § that “the (Repl.Vol.1996) UCCJA was Va.Code 48-10-24 designed to cover situations ... corresponding provision, where a and the California surreptitiously child is Family (Family § removed to another Cal. Code (citation Vol.1994) prior state custody litigation” Appendix Code to Main [current omitted)); Barr, (Main Lemley Family Cal. Code Vol. (1986) (“The 1994)], specifically anticipate resolu- the internation- provide tion of cases must not applicability incentives for al multination- UCCJA to likely custody manner, those to take the law into their disputes. own al In the same Thus, custody that, hands. those who obtain despite John contends the nonexistence unlawfully, particularly by kidnap- children precise language of the UCCJA violence, ing, law, flight jurisdiction from the of Canadian defendants Anne and Leavitt permit litigation It is unclear concerning from John's brief whether he declined to the cus- suggests tody Baby Boy Conaty. that California or Canada should have 48-10-l(a)(l,3,4,5) § Va.Code law’s man- awards.” W. comply with the required to were added). (emphasis any information the court report to date to litigation pending in custody pertaining to pro- Facilitating implementation of its Citing Va.Code jurisdiction. W. another visions, supplies definitions UCCJA (1981) (Repl.Vol.1996). Accord § 48-10-9 custody process child crucial to the terms (1973, § amended Family Code Cal. “custody The determination” litigation. term 1992) Appendix to Main Vol. (Family Code and court or- contemplates “a court decision 1994) § Family Code Cal. providing [current for the custo- and instructions ders Vol.1994) sum, (1993) (Main In child, rights; ]. it including visitation dy of a relating failure of the defendants to child that the include a decision states does not monetary obligation of support to the court further information other provide such 48-10-2(2). § ruling any person.” that the the circuit court’s W. Va.Code warranted “ custody Likewise, ‘[c]ustody proceeding’ underlying phrase governed the UCCJA custody jury proceedings in which a de- includes its decision to instruct dispute and issues, is one of several termination accordingly. separation, and in- an action for divorce or challenges to reviewing the defendants’ In neglect dependency proceed- child cludes instructions, out- we note the UCCJA 48-10-2(3). § ings[.]” Va.Code Similar- W. “ court ... has although a ‘trial set that “custody decree” as ly, the words “decree” or formulating charge to its discretion broad denote “a they employed are the UCCJA accurately charge jury, long as the so judicial custody in a determination contained ” law,’ v. Horace Mann Parham reflects custody proceed- in a or order made decree Co., 609, 619, 490 S.E.2d Ins. an initial decree and include[] Bradshaw, (quoting State § decree.” W. Va.Code 48-10- modification (1995)), 519, 543, 457 2(4). “legal correctness of a de novo the we review UCCJA, Throughout the remainder of the instruction,” Parham, (citing Skaggs id. provisions in the to “cus- references various Inc., Co., v. Elk Run Coal determinations,” tody “custody proceedings,” (1996)). Thus, as we did like, plain legis- further indicate the instructions, respect to the ICPC above with appli- intent of the drafters to limit the lative language plain of the we look first to the orderly cability the Act to the facile and pro- mechanically applying its UCCJA before custody interjurisdictional dis- resolution visions to the facts and circumstances (de- See, §§ e.g., putes. W. Va.Code 48-10-3 in an effort to deter- adoption proceedings “jurisdiction make a scribing a court’s instruc- propriety mine the of the UCCJA determination”); custody 48-10-6 child tions. (1981) (Repl.Vol.1996) (prohibiting a court jurisdiction proceed- assuming where “a provisions An of the UCCJA examination custody ing concerning the of the child was designed primarily suggests Act that the is state”); 48-10- pending in a court of another interjurisdictional regulate interstate (1981) (Repl.Vol.1996) (defining circum- custody disputes. 48- child W. Va.Code in which decline to exer- stances 10-1, purpose explained as in- the Act’s is jurisdiction where “it finds that cise jurisdictional cluding of] the “[a]void[ance custody make a deter- inconvenient forum to of other competition and conflict with courts mination”); (specifying information 48-10-9 custody”', in matters of child states custody proceeding” “[e]very party in a concerning litigation “[a]ssur[ance] pleading). incorporate in first must his/her ordinarily in place custody of a child takes Determining drafters to be the intent of the family the child and his the state with which application plain, proceed to an we “[djiscour- connection”; the have the closest plain language. Act’s age[ment continuing controversies over of] review of the UC- custody of] and the As is evidenced our “[d]eter[rence child intent, ascertaining legislative unilateral removals of abductions and other CJA language to be clear custody find the of the UCCJA to obtain children undertaken unambiguous regu- paternity Baby Boy Conaty. order, delineation and and its In its procedures of the to be followed when lation the circuit court “ORDERED that John disputes jurisdictional custody child cross legally pursu- Woodruff Kessel is determined language of a stat- Virginia boundaries. “Where ant to West Code Section 48A-6- 1(c) ambiguity plain ute is clear and without to be the natural father of the infant meaning resorting accepted is to be without Conaty child born Anne Gilmore on or interpretation.” Syl. pt. to the rules of July about 1991 with all the part, Virginia Walker v. West Ethics obligations flowing therefrom.” The effect Comm’n, 492 S.E.2d 167 paternity such a establishment is discussed (1997) (internal quotations and citations omit- (1989) § in W. 48A-6-4 (Cum.Supp. Va.Code ted). 1991): merits, “if after a trial on the find, court or shall clear and convinc- Applying the UCCJA to the facts of John’s ing evidence that the man is the father of the underlying paternity inverse action and the child, support the court shall order in accor- concerning Baby Boy circumstances Conat/s provisions chapter.”79 dance with the of this pre-adoptive placement ensuing adop- tion, any we are unable to find indication that granting per Both the statute initial custody dispute proceeding place or determination, request paternity mission to applied. to which the would UCCJA 48A-6-l(a), § provision W Va.Code and the launched his efforts to John ascertain wheth- support which attaches an order of any parental rights er he had vis-a-vis Anne’s paternity, establishment of W. Va.Code by filing pater- child then-unborn an inverse 48A-6^4, § suggest purpose of a nity action in the Circuit Court of Cabell paternity action is to determine whether a 48A-6-l(a) County. § W. Va.Code legally obligated provide certain man is (Cum.Supp.1991), which was in effect at the support particular for a child. In this re time, permitted relevant the maintenance of spect, pertaining custody rather than to a paternity civil “[a] action to establish the of a decree, paternity determination or action is support child and to obtain an order of support. more the nature of an action for statute, child[J”78 Consistent with this describing proceedings contemplated Paternity” John’s “Petition to Establish re- UCCJA, province to be within the of the W. quested followingjudicial relief: 48-10-2(2) § specifically Va.Code excludes compelling parties 1. An Order jurisdiction from the Act’s “a decision relat testing the child to submit to medical monetary support to child or other [John]; paternity confirm the obligation any person.” We therefore hold finding 2. A of fact based Custody that the Uniform Child Jurisdiction testing medical which reflects whether or (UCCJA), 48-10-1, § seq., Act W. Va.Code et child; not he is the natural father of the govern purpose does not actions whose main establishing paternity 3. An Order his paternity is the establishment of as such confirmed, child, if paternity generally support actions are in the nature of through testing, establishing medical specifically proceedings which are excluded rights flowing from such a determina- governance from the W. UCCJA. tion; and § (Cum.Supp.1991); Va.Code 48A-6-4 4. Such other relief as the Court deems Thus, § (Repl.Vol.1996). we 48-10-2 just. apply conclude that the did not UCCJA Thereafter, requested govern paternity adoption the circuit otherwise judgment proceedings concerning Baby Boy Conaty.80 to enter default of his § 80.Although 78. W. Va.Code 48A-6-1 has been amended we have examined and resolved this UCCJA, underlying since the time of the events in- pursuant issue to the West However, appeal. quoted por- stant the above opine that a similar result would be achieved 48A-6-l(a) changed. tion of has not been through application of the California UCCJA case. the facts and circumstances 79. W. Va.Code 48A-6-4 has been amended times, However, recently several most in 1995. language quoted substantially above remains the same. filled with other evidence on which such find that the circuit court is Accordingly, we liability grounded. could have been More- instructing jury provi- to the the as erred over, reviewing jury charge in its entire- the of the UCCJA.81 sions ty, given a whole [were] “the instructions the have determined that we While Syl. parties.” pt. accurate and fair to both jury incorrectly the instructed circuit court Found., v. Marion Health Care Tennant UCCJA, nonetheless respect to the with Inc., 97, 459 194 W.Va. S.E.2d error attended these find that no reversible jury Finally, that the instructions we note As we noted above improper instructions. given respect to the were much with UCCJA ICPC, primary pur the respect to the were those instructive of less onerous than subjects protect is to pose of the UCCJA did in that the UCCJA instructions ICPC ie., custody disputes, the children child of any specific indicating directions contain The custody is to determined. whose be provisions that the court determined these children, emphasis being primary controversy. applicable parties’ to the custody of their rights parents to the of substantially emphasis given less children is Right Custody S. Parent’s the individual language in the UCCJA additionally The defendants main Therefore, jury provisions. permitting the that the circuit court erred instruct tain quoted text from the West Vir consider right ing jury parent that a has a natural ginia and California UCCJA enactments custody of child absent a find to the his/her engender, primarily, would a determination parent unfit to have such infringed had the defendants’ conduct instruction, custody.82 granting this rights Baby Boy Conaty upon the to re presumably referred to this circuit court expedient cus ceive an determination of his holding Syllabus point prior Court’s finding tody, so than a that such con more Wise, 343, 211 Hammack v. 158 W.Va. impermissibly had violated John’s duct (1975): parental and maintain a relation to establish parent right “A has the natural to the ship with his son. and, custody of his or her infant child Furthermore, previously, person parent as we have noted unless the is an unfit be- misconduct, jury immorality, neglect, even if the did derive from these in- cause of abandonment, duty, basis which to hold the or other dereliction of structions some fraud, right, by agreement the record or has waived such defendants accountable that, proceedings underlying although apply We further we can locate sions did not to the note appeal. the nation of Canada or its no indication that UCCJA, province adopted the of Alberta has issue, custody 82. The Plaintiff’s Instruction that another nation is involved in a instruction fact automatically granted dispute preclude Number which was over the defen- does not the UC- objections, governing proceedings. W. dants’ reads as follows: CJAfrom such From (1981) (Repl.Vol.1996) § 48-10-24 it is Va.Code The that under the Court instructs apparent contemplated the Act’s drafters parent a natural law of the United States a has application procedures: international of these custody right to the of his or her infant child deprived general policies he cannot be of that article extend to and that or she The convincing right upon cogent proof provisions unless area. The of this international misconduct, [sic], immorality, negligent relating recognition article and enforce- duty custody apply other dereliction of re- ment of abandonment or decrees of other states custody legal flecting parent. right involving unfitness as a The of a decrees and decrees custody custody parent her institu- to have the of his or child is institutions similar in nature to and, by appropriate on natural law while not abso- founded lute, tions rendered authorities of right away opportu- be taken unless other nations if reasonable notice and will not guilty nity given parent to all affected has committed an act or is be heard were persons. proves an which or her unfitness. omission Nevertheless, Furthermore, already was born as we have determined that the fact that child consequence. paternity John’s constitute out of wedlock is of no A father inverse action did not determination,” "custody illegitimate “custody proceed- child must receive the same a ing,” "custody meaning as that received or a decree” within the treatment consideration UCCJA, scope by any parent respect Act to the termination the international of the rights. provi- parental does not alter the Act’s of his our conclusion that transferred, permanently Thus, custody. otherwise has mined to be unfit to have relinquished custody, unfitness, or surrendered such finding absent a possessed John right parent custody right. an enforceable custodial Citing Syl. recognized his or her infant child will be pt. Comer, Simmons v. 190 W.Va. Syllabus, and enforced the courts.” (quoting Syl. S.E.2d 530 pt. Ham State 404[,] ex rel. 168 S.E.2d Kiger ^[798] Hancock, (1969). mack, also acknowledges that various cases 118). require biological an unwed “grasped father to have Although accurately the instruction re- opportunity” parent-child to establish a State, flects the law of this the defendants relationship prerequisite with his child as a urge apply that Hammack does not to this See, asserting to rights. his custodial e.g., case because Hammack involved a situation Robertson, 262-63, Lehr v. 463 U.S. at 103 developed parent- in which the father had 2993-94, 627; at 77 Syl. pt. S.Ct. L.Ed.2d at child, relationship child with his whereas 2, Stone, Roy State ex rel. Allen S. v. 196 relationship John never established such 624, However, W.Va. 474 S.E.2d 554. John Baby Boy Conaty. with The defendants precedents insists such do not im render parent-child stress that the existence of a proper challenged. instruction here relationship protection to essential of Rather, suggests record evidence biological right an unwed father’s to the cus- parent-child John’s to efforts establish a rela See, tody e.g., of his child. Lehr v. Robert- tionship Baby Boy with Conaty were frus son, 248, 262-63, 2985, 463 U.S. 103 S.Ct. trated the defendants’ concerted actions 2993-94, 614, (1983) (requir- 77 L.Ed.2d 627 prevent relationship. such a John con ing biological “grasp[ opportu- father to the] precluded tends that because he was nity” develop relationship child in his achieving meaningful relationship with his constitutionally order to receive protected son, properly the circuit court instructed the rights); 2, custodial Roy State ex rel. jury rights as to the custodial he would have Stone, 624, Allen S. v. 196 W.Va. 474 S.E.2d been entitled to assert had he been allowed (1996) (“Although 554 an unwed father’s bio- by the defendants to Citing do so. Jermstad not, logical link to his child does in and of McNelis, v. Cal.App.3d itself, guarantee him a constitutional stake in Cal.Rptr. (recognizing that a child, relationship his with that such a link parental “natural preference [has] father combined with a parent-child substantial re- custody of his child ... where the father lationship will do so. When an unwed father diligently pursued opportunity has to es demonstrates a full commitment to the re- protected relationship”); tablish a custodial sponsibilities parenthood by coming for- B.G.S., Adoption In re 556 So.2d participate rearing child, ward to in the of his (La.1990) (finding biological unwed father personal interest contact with his child requirement establishing had par satisfied acquires protection substantial under relationship ent-child with his newborn Due Process Clause in Section 10 of Article daughter “grasped oppor where he had Constitution.”83). Virginia III of the West tunity relationship to commence a with his parent-child Because John did not establish a added)). (emphasis child” relationship Baby Boy Conaty, the de- argue fendants he cannot enforce his custodi- Traditionally, biological mother of a Hence, rights. al the circuit court’s decision superior rights child born out of wedlock had give this instruction was erroneous. custody against every to the child’s other prop- person claiming that the rights, maintains circuit court such custodial includ- erly jury biological instructed the as to the custodial the child’s father. 3A Michie’s (1996). parent. Bastardy § This instruction informed at Jur. See also B. Annotation, right Finberg, that John had a natural Right Mother to Cus- custody Child, provided of his tody Illegitimate child he had not 98 A.L.R.2d 4[b], right custody § waived his or been deter- at 431 Where the child’s III, life, prived liberty, property, Article Section of the West due without law, provides person judgment peers.” process ''[n]o Constitution be de- shall of his (“[T]he Willis, 225, 207 S.E.2d 129 157 W.Va. unwilling to assume unable mother was polar typically the the infant is the star custody, though, welfare of child’s person to of the court is to be viewed as the the discretion father was which child’s making, legal awarded. 3A custo custody guided would be its award of next whom 175; Finberg, Bastardy Lipscomb § ex rel. State dy-”); Syl. pt. Michie’s Jur. 4[b], (same); at 431. Joplin, 98 A.L.R.2d Reynolds, part, Reynolds Syl., Nevertheless, history of jurisprudential (1930) (same); 513, 155 S.E. abandoned that we have this State indicates 410, 413-14, 137 Jeffries, Pierce v. long rec- gender preferences and these (1927) (“It in this is well settled S.E. parents, mothers rights of both ognized the para is of welfare of the child state that the alike, custody of their fathers determining importance in who is en mount children, parents are fit to have provided the custody, and that the welfare titled to its not otherwise transferred custody and have regarded than the the to be more child is rights.84 their custodial or abandoned State ex rel. rights parent.”); the technical any rights parents Superior to 757, 751, Reuff, v. 2 Neider 29 W.Va. S.E. children, however, custody is of their own (1887) (“[T]his custody 801, right to the 803 child’s overriding of the consideration children, by given by nature and God to Thus, right of the natural best interests. give way permanent parents, to the must is custody of their children parents omitted)). (citation child[J” interest of the overriding always tempered with the courts’ by jury presented instruction The issue children well-being of the concern for challenged particular assignment of in this D., Brian 7, Matter Syl. pt. 194 involved. novel. While we have (“Cases error is somewhat (1995) 623, 461 S.E.2d 129 W.Va. fathers, biological that unwed determined just in be not involving children must decided alone, protected rights standing have certain competing sets of adults’ the context of children,85 we have not their minor regard rights vis-a-vis rights, also with a but 8, presented by this In re children).”); yet the situation Syl. pt. part, in addressed of the 302, Burnside, See, 1, Joplin, 47 Syl. pt. W.Va. S.E.2d 221 e.g., v. 131 Honaker 414, 448, (" 410, (same); parent Jeffries, A 103 W.Va. W.Va. 388 S.E.2d 322 Pierce v. 651, (1927) ("In right custody of his or her has the natural 137 S.E. the absence and, parent is an unfit infant child person unless the transfer of his evidence of abandonment or misconduct, neglect, immoral because of good rights, parent character a natural who is of duty, ity, dereliction of abandonment or other custody proper person to have the and right, agreement by or other has waived such reasonably provide for it is child and able transferred, relinquished or surren wise has custody against per- other to the entitled custody, right parent to the dered such custody added) (internal quotations (emphasis sons[.]” recog will be of his or Iter infant child omitted)); 4, Syl. pt. State ex rel. and citation Pt., by Syl. nized and enforced courts.’ 751, Reuff, 2 S.E. 801 Neider v. 29 W.Va. 685, Robinson, Whiteman v. 145 W.Va. ("The custody right of the or mother to the father added)); (1960).” (emphasis Syl. pt. S.E.2d 691 2, child, right, to is not an absolute of their minor Wise, 343, v. 211 S.E.2d Hammock 158 W.Va. circumstances, under all be accorded to them Willis, (same); 1, Syl. pt. W.Va. In re them, appears if it be denied to either of (1973) ("In 207 S.E.2d 129 the law concern court, parent that the otherwise entitled to to the children, ing custody of minor no rule is more " (emphasis right, 'is unfit for the trust.’ firmly right of a natural established than that the added)). custody parent of his or her infant child is to the person; paramount other it is a to that of defining biolog- prior 85. Our decisions an unwed personal liberty protected guar and fundamental include, Syllabus point rights 2 of ical father’s by of West anteed the Due Process Clauses Stone, Roy ex rel. Allen S. v. State (em Virginia and United States Constitutions.” (1996) ("Although an unwed 474 S.E.2d 554 added)); Syl. pt. part, phasis in State ex rel. not, biological child does in father’s link to his Utterback, Harmon v. 144 W.Va. itself, guarantee him a constitutional stake and of (1959), grounds by Syl. pt. overruled on other child, relationship such a link in his Collins, v. 483 S.E.2d Overfield parent-child rela- combined with a substantial (1996) ("The custody right parent of a to the tionship When an unwed father will do so. child, being and founded in nature of his or her responsi- statute, demonstrates a full commitment recognized by and and declared wisdom par- transferred, parenthood coming forward to bilities of respected right unless such will relinquished child, rearing ticipate of his his interest in in the (emphasis add or abandoned[.]” ed)); acquires Lipscomb personal contact with child substan- Syl. pt. part, his State ex rel. rights enjoyed by protect parental rights, unwed appeal: though, both an his an unwed biological biological biological mother and unwed father must demonstrate his com- they conflicting parenting by participat- views as mitment to his father where child care, ing ulti- rearing, support, to their minor child’s best interests and his/her placement. compli- by establishing meaningful relationship mate custodial Further cating evidence, the with our resolution of issue is From the him/her. did, fact,

convoluted factual scenario of this case. De- could have concluded that John spite prior recognition precise steps assuming responsi- our of a stan- take toward these biological commencing which an unwed father relationship dard bilities and fully accept parental by searching prior must and assume the his son for Anne to their birth; responsibilities raising attempting prevent his child order to child’s Anne’s protected right adoptive placement child; establish a custodial to his of their undertak- child, birth; Boy see State ex rel. Allen S. locate son soon after his Stone, intervening adoption his son’s Canadian presently neatly proceedings. facts Perhaps compelling before us do fit more than procedural steps into this framework. relationship While John’s initial to establish a son, presented suggests though, evidence below that John with his is the evidence indicat- attempted parental rights by ing to assert his attempts that John’s to form such a opposing adoption Baby Boy Conaty relationship and to assert his custodial by trying to ascertain his child’s where- were often hindered the defendants’ ac- abouts, reflects, opposing any by the evidence also participation as noted tions above, endeavoring the defendants’ actions to his child’s life.

prevent asserting rights John from Given parental John’s efforts to assume his obtaining crucial information about his relationship duties and to commence a with son. Baby Boy Conaty in order to assert his situation, unique

Faced with rights, we reiter- custodial we find that the circuit court decision, above, ate instructing jury our stated that once a did not err in the as to the born, right parent custody child has been both of the child’s un- natural of a to the biological parents enjoy right language wed to estab- child. The of the contested his/her parent-child relationship jury correctly jury lish with their instruction informed the right, jur- child. governing rights Associated with this as the of the law the custodial isprudential history suggests, parents86 of this state and was not inconsistent with our right biological parent prior the of either regarding parental unwed to decisional law custody Hence, rights. seek the being child. order to the instruction not er- his/her case, protection Throughout tial under the Due Process Clause in our evaluation of this we con- Virginia Section 10 of Article III of West stantly the have been reminded of Anne's undeniable Constitution.”); Syllabus point 1 of McGuire v. right regarding pregnancy to make decisions her Farley, 370 S.E.2d 136 qualified right, biologi- and John’s as an unwed (“ jurisdiction 'A circuit court has to award or father, However, custody cal to the of his child. deny rights illegitimate visitation to a father of an that, forget regardless par- we must of the H.A., Syllabus, child.’ J.M.S. 161 W.Va. rights, ents’ custodial the child’s best interests (1978).”); Syllabus point 242 S.E.2d 696 See, e.g., are also entitled to due consideration. Wise, of Hammack v. 158 W.Va. D., Syl. pt. Matter Brian 194 W.Va. ("The illegitimate father of an child must (1995) ("Cases involving S.E.2d 129 children receive the same treatment and consideration as just must be decided not in the context of com- by any parent respect that received to the peting rights, sets of adults' but also with a parental rights.”). gener termination of his See child(ren).”); regard rights for the of the Comment, ally Thompson, David E. McGuire v. Willis, part, In re 157 W.Va. Farley: Virginia Supreme Ap The West Court of (1973) (”[T]he S.E.2d 129 welfare of infant is peals Step Equal Takes a Toward Protection polar by star which the discretion of the Father, Unwed 91 W. Va. L.Rev. 617 guided making legal court be is to its award of custody.”); Jeffries, Pierce v. at 413- jury 86. This also made instruction clear ("It “(t]he 137 S.E. at 652 is well settled in this right parent custody of a to have the of his paramount state that the welfare of the child is of Although or her child is ... not absolute.” we importance determining recognize importance parent's right who is entitled to its of a to child, custody custody, empha- and that we cannot the welfare of the child is to be his/her enough contingent right. regarded rights size nature of this more than the technical of the rights jury87 as to constitutional to roneous, to the trial court’s discre- John’s we defer equal process88 protection89 due granting tion in instruction. below, During proceedings law. the cir- granted summary judgment to the cuit court Protection Equal Due Process and Con- U- regard rights to civil defendants John’s siderations Despite ruling, claims.90 the circuit further inconsistently, The defendants assert subsequently, court in- by instructing jury, specifically over the stated circuit erred structed the Reuff, deprive plaintiffs parent.”); about with the intention to State ex rel. Neider v. ("[T]his right custody by rights depriv- at 803 to the 2 S.E. of their to the child [sic] [sic] children, by par- given by right nature and God to of ents, to be heard John Kessel notice and give way permanent child, interest of must adoption you concerning the then of his (citation omitted)). While the fate the child[.]” determining the consider such conduct in Conaty ago Baby Boy long has been sealed motive, and state of mind of the defen- intent judiciary, ignore we cannot that in tire Canadian determining dants in whether defendants are parents assert their future cases where liable for fraud or interference. interests, too, custody, must be re- the child's juncture, pro- we At this decline to address the garded. priety portion of that of the trial court’s instruc- suggesting right tion that John had to be noti- instructions, Upon challenged 87. review Baby Conaty adoption Boy fied of the because appears notes 88 and that al- see infra particular parties do not contend that this though concern John’s federal these instructions statement constituted an erroneous instruction. Rather, equal protection rights, process and due similar above-quoted our discussion- of the in- Virginia rights secured the West Constitution appropriateness struction will be limited to the However, might implicated. given also instructing as John's constitutional instructions, language limited of these decline possibility rights and as to the that the defen- respect analogous to review them with due rights. dants violated these For a discussion of equal protection rights guaranteed process and duty notify existence of a John of the Constitution of the State of West pending adoption, supra see Section II.B.l. party has framed the issue in terms of neither protections. state constitutional respect right equal protec- With John’s law, granted, jury tion the circuit court 88. The circuit court instructed the as to of as amended, 65(a): right process John’s to due of law in Plaintiff’s Plaintiff’s Instruction Number 64(a), granted Instruction Number which was jury according The Court instructs the that amended: Amendment, equal protec- to the Fourteenth jury The Court further instructs the that the security given persons tion and should be to all parent having relationship a a interest of enjoyment under like circumstances in the of protected liberty by a with his child is interest rights, persons personal their and civil and all the Fourteenth Amendment's Due Process equally pursue hap- should be entitled to their provides Clause. The Fourteenth Amendment piness acquire enjoy property. Under life, any deprive person that no state shall of principle, person no be denied should liberty property process or without due of law. enjoyed by protection same of the law which is jury further that The Court instructs persons other in like circumstances. There is where an unwed father demonstrates a full equality opportunity to be of to all afforded responsibilities parent- to the commitment of persons. by coming participate hood forward to in the Therefore, you by preponderance if find a child, rearing personal of his his interest in defendants, them, any the evidence that or requires pro- contact with this child substantial purpose set about with the intent and of termi- Clause, the Due tection under Process includ- nating plaintiffs’ right by [sic] to the child ing right any adoption to notice of of that permitting opportunity them to be [sic] opportunity prior child and an to be heard to whatsoevér, any rights you heard then or have parental rights the termination of his to that any finding consider such as evidence of child. intent, determining motive and state of mind in Accordingly, you if John find that Kessel them, defendants, any or are liable whether respon- demonstrated full commitment to the or interference. by fraud parenthood coming sibilities of forward to attempt participate rearing in the of his child, originally attempted prosecute 90. John a civil you may that Kessel had a find John rights against pursuant claim defendants right adoption to notice of of that child (1979) (1994 ed.). By 42 U.S.C. right opportunity hearing 1983 dismiss- and a to an to a claim, impliedly prior parental rights the trial court deter- to the termination of his mined that the defendants were not state actors to his son. you preponderance level If evi- and that their conduct did not rise to the find defendant, defendants, dence that a set state action.

177 defendants, objections question may fairly that it could be attributed to the deprive intent consider the defendants’ state. pro- of his constitutional to due John (Additional omitted). specifi- citations More assessing equal protection cess “ cally, recognized ‘private we have that con- motive, intent, defendants’ and state of mind duct is not controlled the Fourteenth to commit fraud and tortious interference. process signif- Amendment due clause unless responds that ” the defendants effec- icantly intertwined with state involvement.’ tively deprived protections him of the Jack, 147, 153, Dennison v. 172 W.Va. 304 by placing Baby United States Constitution 300, Kennebec, (quoting S.E.2d Thus, Boy Conaty adoption in Canada. West, 718, Inc. v. Bank 88 Wash.2d properly he asserts that the circuit court (1977) (en banc)). 565 P.2d jury instructed the it could consider Similarly, equal protection in the realm of deprivations ascertaining the defen- that “[t]he indicated violation of the alleged dants’ intention to commit the torts. equal protection usually standard arises from John contends further the court also Pauley Kelly, action[.]” state properly cautioned the that it could not (1979) (citations findings liability upon its base the defen- omitted). also See Israel v. West dants’ violation John’s constitutional Virginia Comm’n, Secondary Sch. Activities rights. (1989) (same). above, As noted we review for an abuse of Having requirement established of state deciding challenges discretion when action, say we are unable the due giving specific jury of a instruction a trial process equal protection giv- instructions respect particular court. With to these in- proper en this case constituted a exercise structions, prior we note at the outset that First, of the trial court’s discretion. as indi-

jurisprudence generally in this arena has re- above, cated none of the defendants was a quired, prerequisite finding as a a violation Syllabus point state actor. of West process of an individual’s federal due Fund, Bailey, Trust Inc. v. equal protection rights,91 some form of state (1997), 485 S.E.2d 407 we held: performed by gen- action a state actor. See entity determine if an “[t]o state actor Co., Inc., erally Lugar v. Edmondson Oil subject to constitutional duties or restric- 2744, 2753, U.S. S.Ct. tions, the nature and extent of state involve- (noting L.Ed.2d that Four- ment must be evaluated so as to determine if teenth Amendment to United States Consti- fairly its actions are attributable to the protects only against deprivations by tution 8, Queen state.” See also v. West against pri- the State and “offers no shield” (internal Inc., Virginia Hosp., quotations vate conduct Univ. and citation omitted)). example, (limiting For in Imperial Colliery S.E.2d determination of Font, issues). process Co. 781 n. 373 state actor due status to (1988), 494 n. S.E.2d we noted: presently Under the facts the case before us, we cannot find that the defendants were It is now law that the[] [Four- settled contemplation state within the actors our teenth] Amendment[ ] [to United Fund, holding in West Trust Inc. protects] only against Constitution] States Court, Bailey. appeal On to this John does action”, against “state and not “[i]ndividual not indicate and the record does not evidence rights.” invasion Rights of individual Civil any Cases, 3, 11, 18, 2[1], defendants’ actions were so 109 U.S. 3 S.Ct. (1883)[.] closely intertwined with state interests as to L.Ed. Where con- private entity, conducting duct render them state actors them- of a “state only action” in be found where the acts selves accordance with the State. life, deprive any person liberty, proper-

91. The Fourteenth Amendment to the United ... or Constitution, law; by ty, deny process States referenced the trial court without due nor process equal protection person jurisdiction equal protec- in its due and instruc- within its Const, tions, XIV, provides, pertinent part: State tion “No shall of the laws.” U.S. amend. 1. only jury verdict if such error rises to the involved actors were As no state supra a violation of controversy, neither can we find level of harmful error. See Section case, rights present as find constitutional In the we the error to the above-mentioned II.C. Typically, jury ac- action. state as the remainder of the a result of state be harmless type activity per- instructions, entirety, tion connotes some viewed their correct- entity law, directly by the state or an ly jury applicable on the formed instructed the so as to closely affiliated with the state special emphasis placed upon so and no See, finding of state action. necessitate a by the trial court or these two instructions and e.g., 21A Michie’s Jur. Words Phrases Moreover, parties. defendants were “ (1987) (defining action” as ‘action “state prejudiced by giving of errone- these subdivision, political by the or a taken State merely instructions ous instructions since the acting person persons or for the or jury that the infer from these indicated could subdivision, pursuant to political or State or alleged constitutional violations that the de- direction, authority or obedience their fendants had committed the tortious acts of ” requirement’ (quoting Brown v. to their accused, they which were rather than direct- Richmond, City 204 Va. 132 ly stating finding that a that the defendants (1963) (citations omitted))). 495, 500 committed such constitutional violations ne- us, can find no Given the facts before they finding that also acted cessitated a had tending to indicate that the defen- evidence above, tortiously. As stated we have action, conduct amounted to state dants’ replete record is with evidence from which jury could have found such from which jury could have found defendants Each of the defendants acted in state action. Thus, for fraud. the effect of the liable capacity. individual None of the own his/her relatively instructions was minimal erroneous suggested conduct an association defendants’ incriminating given the voluminous evidence carrying with the State out or involvement record. Accordingly, individual activities. his/her alleging instructions that the defendants vio- Contempt Legal Court Orders process equal protection lated due John’s Ethics Rules unsupported any applicable law are Finally, the defendants contend the trial court’s and constitute abuse of give circuit court to was error discretion. jury defining “contempt various instructions conclusion, though, reciting numerous ethical This is not the of court”92 inquiry. governing An erroneous in standards the conduct of attorn end of our eys.93 challenge propri- struction necessitates a reversal of the entire The defendants they complain following scrupulously, 92. The will be held to a strict defendants Instructions, contempt, pertaining to Plaintiff’s observance it.of granted the circuit court over the defen- Lastly, which Plaintiff’s Instruction Number objections. amended, dants' Plaintiffs Instruction Number directed: provided: "Contempt is defined as an act in attorney conspires An who with his client to processes, disrespect court or its or which obstruct the due administration of the law and justice obstructs the administration of or tends to bring authority justice to the of a court of into bring disrepute. the info It is a disobedi- Court by obstructing contempt resisting and exe- the court, opposing despising ence to the or an or decrees, by cution of its lawful whatever con- authority, justice dignity or thereof.” Simi- trivance, against guilty pub- is as of an offense larly, the court instructed in Plaintiffs Instruc- justice contempt lic and of court of as tion Number as amended: client. jurisdiction a Court has in the When sense of court, objec- 93. circuit over the defendants' The power injunction to decide whether an or oth- tions, jury, instructed the in Plaintiff's Instruc- awarded, party against er writ shall be amended, tion Number as as to certain ethi- it, obey although whom it issues is bound to attorneys cal that must follow. standards erroneous, awarding may of it have been (Quoting portions and, sense, of the West Rules of improper improvident, in that or Scope Professional Conduct: "Rule 1.2. of may operate unreasonably unjustly; and and it Communication”; Representation"; "Rule 1.4. obey he must it until vacated or dissolved. Information”; Confidentiality though injunction "Rule 1.6. of Even roneously granted, an have been er- Tribunal”; void, absolutely "Rule 3.3. Candor Toward the unless it is duty obey Opposing Party parties enjoined to and it is the of the to "Rule 3.4. Fairness instructions, ety contempt noting par- tionship suggesting appropriate that ticularly the fact that all of the defendants remedy violating for defendants’ in actions contempt in earlier had been found to be who court order would to hold in defendants charges. purged later themselves of these court, contempt permitting of rather than During paternity the course of the inverse plaintiff damages). to recover litigation, circuit court held defendant challenge propri- The defendants also contempt refusing sign Anne to be for ety of the circuit court’s instructions which her medi- authorizations to release California provided jury with various ethical stan- cal found defendants Dr. and records and governing attorneys. dards the conduct of Conaty contempt failing Mi’s. to be in for regard, In this claim defendants appear depositions.94 for their Because each these instructions were erroneous because purged subsequently of these defendants neither defendant Leavitt nor defendant Bri- contempt of and because John him/herself charged an have been with ethical violations monetary recovery upon cannot base his arising Baby adoption Boy from the of Cona- contempt charges, these the defendants because, ty charges even if ethics had maintain that these instructions were errone- defendants, Dunn, brought against been these Citing John Larson v. ous. 460 N.W.2d (Minn.1990) (refusing charges could not use these recognize claim as basis for Citing parental recovery. Conduct, for interference tortious rela- W. Va. R. Prof. Counsel”; challenge ruling "Rule 4.1. State- Truthfulness in dants also the circuit court’s Others”; Respect 40(a), granting ments to "Rule 4.4. Plaintiff’s Instruction Number as Persons”; Rights conduct”). amended, of Third and "Rule 8.4. Mis- objections, over the defendants' re- Likewise, Plaintiff's Instruction garding attorney’s liability for intentional amended, excerpts Number recited from torts: the Rules Professional State Conduct of the jury attorney The Court instructs the that an ("Rule [Rules Bar California 1-100. of Pro- immunity liability has no from for fraudulent Conduct, General]”; fessional "Rule 3-200. attorney or intentional acts that the takes on objective[s] Employment”; Prohibited "Rule his own behalf or shares client. An with his Law”; Advising 3-210. the Violation of "Rule attorney any possess immunity does not from Communication”; 3-500. Conduct”; "Rule 5-200. Trial liability for his own intentional misconduct. Avoiding "Rule 3-300. Adverse In- Therefore, you by preponderance if find [sic]”; Avoiding Rep- terests "Rule 3-310. evidence this case defendant Leavitt Interests”; resentation of Adverse "Rule 5-310. Conaty acting or defendant Brian were as an Witnesses”; Prohibited "Rule Contact With 5- attorney any complained of the conduct Evidence”; Suppression 220. and "Rule 5- [sic], find, you plaintiffs pursuant if further Witness") quoted portions 210. Member as to the other instructions of the Court and the chapter of the State Bar Act of the California they knowingly evidence in this case that be- ("Section Business and Professions Code 6067. instrumentality perpetration came an for the Attorney”). Oath” and "Section 6068. Duties of fraud, others, conspired including a clients, their jury, The circuit court further instructed the injure plaintiffs to defraud or or [sic] objections, regarding over the defendants' engaged in intentional conduct such as inten- jury any extent to which the could consider al- plaintiffs' [sic] interference with the tional leged ethical violations defendants: child, rights you may attorney find then you The Court instructs the will be attorney Conaty Leavitt and Brian to be liable instructed of statutes and laws and ethical you any person. the same as would other may apply rules which to defendants in this you preponderance case. If find that, during record indicates further The defendants, defendant, any evidence that case, paternity plaintiff sought inverse rules, you violated of these laws or then ruling compelling circuit defen- may consider such as evidence violation questioning. respond deposition dant Brian to mind, your their state of intent or malice in attorney-client privilege Brian asserted the defendant, determination of whether the defendants, response questioning about whereabouts plaintiffs [sic] are liable to Baby Boy Conaty despite Anne the fact fraud, [sic] interference with to child. represented that he earlier had to the court that deliberations, however, your respect attorney he had not served as Anne’s in this fraud, to whether defendants are liable for Although circuit did not hold matter. court plaintiffs prove [sic] [sic] must the element contempt Brian in for his initial assertion convincing fraud clear and evidence. attorney-client 26(a) (as amended). privilege privilege where no such No. Plaintiff's Instruction existed, the court did order him to submit to In addition to the lower court’s instructions re- deposition asserting garding and to refrain from the ethical standards to which attor- second conduct, ney privilege must conform these circumstances. defen- under his/her 180 they jury understood the (“Violation give instructed the so Rule of a should

Scope [sic] and were not mislead it create issues involved action nor should cause of rise to a duty the law.” Id. legal has been any that presumption breached_ are not de- The[] [Rules] and the Reviewing the record before us liability.”). for civil signed to be a basis arguments, that the circuit parties’ we find challenged giving in did not err position agrees with the defendants’ John First, the contempt ethics instructions. finding contempt of court neither a contempt nothing more than instructions did can legal ethics standard a violation of a nor correctly jury legal instruct as to the money damages. Never- for provide a basis contempt. See State v. Hans definitions theless, instructions submits that these (1897) (defin 791 ford, 43 W.Va. 28 S.E. they erroneously given cor- because were not (Plaintiffs 36)); contempt Instruction No. ing properly rectly applicable law and stated Doe, Corp. Assoc. v. 159 W.Va. Eastern Coal alleged jury’s consideration limited (explaining 220 672 en S.E.2d defen- a determination of the violations to duty injunction joined party’s obey until it malice,” mind, intent or dants’ “state (Plaintiffs by court In invalidated has been jury ensuring would not thereby (as amended))); State v. struction No. 38 for-impos- such violations as a basis consider 352, 12 Ralphsnyder, 34 W.Va. S.E. Kelly, liability. Citing v. United States attorney in (recognizing manner which Cir.1989) (11th (recognizing F.2d (Plaintiffs contempt in Instruc held be professional relevance of ethical and “the (as amended))). No. 40 The inclusion tion lawyers in evaluat- of behavior for standards defining contempt thus these instructions (citation omitted)); intent” Unit- ing criminal jury the evidence permitted the to evaluate Machi, F.2d 1000-02 ed States v. contempt presented place at trial and to Cir.1987) (7th (permitting rules of ethical proper perspective when evidence governing attorneys to be introduced conduct assessing motivation for their the defendants’ attor- into evidence as indicative defendant actions. interest in criminal ney’s state of mind and scheme; during noting with efforts approval Second, accu the ethics instructions jury against inferring that caution

trial to rately of ethical restated certain standards attorney guilty of criminal defendant Leavitt and behavior with which defendants simply may have violated because he offense Brian, a result of their stature as attor as governing attorneys); conduct of ethical rules neys, required comply. generally are See DeLucca, F.2d v. United States 1-100(A) (“These Conduct, Rule Cal. R. Prof. (5th Cir.1980) (ruling appropriate “it is adopted by together with standards rules professional responsi- consider the canons of pursuant of Governors to these the Board determining bility [a a factor in defendant as binding upon all rules shall be members attorney’s] willing participation crime” Conduct, Bar.”); R. Prof. W. Va. State (footnote omitted)). lawyer responsible (“Every Preamble above, of the Rules of Professional Con we noted court has broad observance

As trial duct.”). Moreover, formulating charge to the the ethics instructions discretion in its properly jury’s consideration of jury long given as a limited the “so as the instructions being any alleged as indic parties.” are and fair to both unethical behavior whole accurate only attorneys’ Syl. part, ative of the defendant “state pt. Tennant v. Manon Health manner, Found., Inc., mind, malice.” In intent or Care (1995). Still, jury sought prevent instructions “must the circuit court considering sup- improperly such evidence a correct statement of the láw and liability upon part, imposing these ported the evidence.” basis Guthrie, or tortious interference. for fraud State defendants Conduct, (stating Accordingly, determining Scope Va. R. Prof. when See W. designed professional rules “are not whether the lower court abused its discretion liability”); Nat’l instructing jury, be a basis for civil First we examine “whether Blackhurst, whole, sufficiently charge, reviewed as a Bank in Marlinton (recog disclosure John failed to state a because valid remedy nizing for a violation cause of action for fraud. that “the usual Virginia of the West Code of Professional Additionally, the defendants contest the disciplinary proceeding is a Responsibility Virginia ruling being West circuit cdurt’s attorney”). re against also In Pa the See ruling inconsistent with an earlier a Cali- Partnership, 182 B.R. Family lumbo Ltd. court, superior 1,” in fornia “California case (memorandum (Bankr.E.D.Va.1995) 447, 468 finding alleged that the fraud to have been (determining attorney’s opinion) that viola committed defendants Leavitt and Anne Respon Virginia tion of Code of Professional attorney-client privilege did not disable the sibility give private does not rise to cause respect legal proceedings in Califor- action). reasons, we the For these find that Accordingly, urge nia. the defendants in circuit court did not abuse its discretion adopted the circuit court should have the formulating jury charge its so as to include ruling finding California the contempt and ethics instructions. attorney-client privilege applicable.95 to be responds that John the circuit court cor-

D. rectly exception that the held crime or fraud ability negates the defendants’ to assert the Attorney-Client Privilege and Crime attorney-client privilege in this case because Exception or Fraud exception applies, in such as cases one, argue The next that the whenever a client seeks the aid of an defendants attorney committing by ruling erred that the crime in a crime or fraud. circuit court Thus, extinguish exception applied John demonstrated that fraud fraud because attorney-client During in privilege this case. had been committed defendants Anne and Leavitt, pre-trial discovery, the circuit court properly the circuit court ruled found attorney-client privilege inapplicable permitted privilege that the between de to be discovery pertaining apply Leavitt and did not of Leavitt’s client files fendants Anne alleged representation adoption plaintiffs because the had a cause of to his of Anne in the Moreover, Conaty. against Baby Boy claims action for fraud these defendants Baby preserve respect placing the defendants failed to for to their actions Conaty appeal assignment charging Boy adoption. for As a result of this their of error Virginia circuit court should ruling, required defendant Leavitt was the West repre adopted ruling give regarding file have of the California John his client they argue to adoption Baby superior court because did not sentation of Anne Boy Conaty. give court that it should deference The defendants contend that the circuit erroneously ruling. Citing 1 required circuit court to the California court’s surrounding ruling quately of their claim briefed. furtherance The circumstances Virginia are that West circuit court should the California court in "California case 1” ruling superior distinguishable underlying adopted court, the California those the instant from n authority other appeal. 1” as a the defendants offer no John instituted "California case attorney- companion Virginia pa- that "since the case to his West inverse than bald assertions California, 1," ternity Virginia relationship Cal- proceeding, case client was formed in "West testimony governed deposition ifornia law the issue of whether order to secure from attor- waived_ ruling by privilege the Cali- ney was The Leavitt and Anne’s California doctors con- given Superior been cerning subsequent Court should have whereabouts of fornia birth deference, controlling Baby Boy Conaty, purposes since California law with the ultimate attorney-client relationship is in- being son and and the same this action the location of his contrast, supporting parental rights. By in both cases.” This lack of of his volved assertion authority directly contravenes rules which appeal proceedings our instant is the direct result of 2,” legal specifically require party provide the in "West case which John filed had argument money damages arising upon rests. See W. attempt basis which to collect his/hér 10(d) (stating appel- allegedly R.App. ”[t]he Va. P. Rule the defendants’ fraudulent and preventing follow the same form ás him from estab- lant’s brief shall tortious conduct 3(c)(4) Nevertheless, (describing petition appeal”) Rule lishing relationship with his son. requiring petition appeal particular address this ar- contents decline further “[pjoints attempted and authorities relied gument inclusion of as we find that the defendants’ law”). assignment a discussion of [and] of error on this basis has been inade-

182 engages attorney’s an assistance Cleckley, Handbook on Evidence client Franklin D. l-7(B)(6)(a), Lawyers § Virginia engineering perpetrating at a crime or fraud. for West ed.1994) (3d (“The Cleckley] 393, § 1 [hereinafter 50 at 356 81 Am.Jur.2d Witnesses (“Failure complain alleged of an error generally to attorney-client privilege does not during of trial constitutes waiver the course representation sought is to exist where ordinarily precludes appel- and of the defect further criminal or fraudulent conduct either (citations omitted)). Therefore, (footnote omitted)). late review.” present, past, or future.” properly court John contends that the circuit Beard, 740, 753, also v. 194 W.Va. See State exception fraud because applied (1995) the crime or 486, (stating “[t]he 499 compelling present to the defendants failed exception purpose of the crime-fraud “ why exception should not reason as to attorney/client privilege” is ‘to assure that apply.96 secrecy,” lawyer the “seal of between client does not extend to communications widely attorney-client privilege is a The purpose getting advice for “made for the privilege, recognized solemnly respected ” (quot- of a fraud” or crime’ the commission protect confiden- purpose of which is to Zolin, 554, 563, v. 491 U.S. United States a client and tial communications between his/ 2619, 2626, 469, 337, L.Ed.2d 109 S.Ct. 105 485 her counsel. 81 Am.Jur.2d Witnesses (1989) (additional omitted))). (1992) (“It citations See long-established rule of at 314 is a Marr, F.Supp. attorney generally at A.B. Dick 95 common law that an or counselor Co. (S.D.N.Y.1950) (“[I]t 83, quite permitted, law is not and cannot be com- 102 is clear pelled, testify made privilege disappears to as to communications if it that the is invoked professional him in character his scheme, merely cloak a fraudulent (footnotes client, unless the client consents.” attorney that when a client consults an as to omitted)). also R. Evid. Rule 501 See W. Va. perpetrate a how to concoct or fraud the (recognizing privileges); common law State (citations omitted)); privilege unavailing.” is Fisher, 117, 121, 581, 27 126 W.Va. S.E.2d Bradley, Fellerman v. 99 N.J. 493 (1943) (“It 583 is settled law this State that (1985) 1239, (“[A]ttorney-client A.2d attorney by an a client a communication to ‘a fraud on a communications constitute dealing client with relation as attor- former Misleading, privileged. court’ are not incon- (citations privileged.” ney and client is omit- sistent, or deceitful actions directed at the ted)). species deceptive itself denote a conduct that fall short of civil or crimi- scrupulously guard- privilege is While deceit, however, ed, nal If that form of exception fraud. to its ironclad rule of nondis- judicial directly process, it closure of client confidences exists where a interferes with the proposes subpoena attorney-client privilege based on the 96. John further defendants harm, efficiently argued applica could have irreparable more could result in imminent and bility exception by petition of the crime or fraud petitioning prohibition appro- for a writ of is the prohibition prior ing this Court for a writ of challenging subpoena.”). priate method for disclosing allegedly privileged material. We 3, Syl. pt. also ex rel. McCormick v. See State Indeed, suggested agree with John. Zakaib, 430 S.E.2d 316 parties disputes regarding embroiled course (" prohibition 'A writ is available to correct a sought protected material to be from disclosure legal resulting error from a trial court's clear See, attorney-client privilege. e.g., Syl. under the pt. regard substantial abuse of its discretion in Ctr., Bedell, Hosp. ex rel. Inc. v. State United discovery Syllabus orders.' Point State Farm (“ 484 S.E.2d 199 'When Stephens, Mutual Automobile Insurance Co. v. discovery probable order invasion involves (1992).”). W.Va. 425 S.E.2d 577 See exempted of confidential materials that are discovery generally Fidelity ex rel. States & State United 26(b)(1) [privileged matter] under Rule Canady, Co. v. 194 W.Va. at 437 n. Guar. "prepared anticipation of [materials ("If party] wrongfully n. 8 [a [is] S.E.2d litigation trial”] or for of the West Rules compelled produce protected by either records Procedure, of Civil original jurisdiction the exercise of this Court’s attorney-client privilege the work and/or Syl. appropriate.’ pt. doctrine, product damage will occur [idelity [nited ] [tates ] ] State ex rel. U S F & G disclosure, appeal and a would be unevent- later Canady, [uar. Co.] v. W.Va. privileges, In the (1995).”); ful. area of communication State ex rel. Doe v. Troisi, put (1995) ("In bag, ‘once the cat is out of the cannot be S.E.2d 139 ”). quash of a motion to back in.' situations where refusal (citation showing lawyer that the the court.” facie was consulted a fraud on can constitute omitted)). facilitating employed purpose for the future, concealing ongoing, an criminal or or note, important though, It is scheme.”). or fraudulent traditionally exception a or fraud the crime manner, only a crime or In this narrow one. ordering the Before disclosure of upon court will suffice to over a fraud the material, privileged though, the court also Thus, attorney-client privilege. the come privileged the must find that communications alleged bespeaks of tortious when the fraud purported the crime fraud. were related to conduct, a true rather than fraud fraudulent Jones, 2, 46, Syl. pt. Thomas v. 105 W.Va. court, exception the crime or fraud upon the (1928) (“In 141 S.E. 434 order to admit compel the operate to disclosure of does not evidence confidential communications be Cleckley, See 1 privileged communications. attorney excep tween and client under the 1994) (3d 5^4(E)(6)(a), (stating § at 579 ed. general rule that if such communi tion ‘fraud’ as used specifically “[t]he [in term perpetrate cations were made in order exception] to crime or fraud refers reference justice they privileged, fraud on are not judicial perpetrated process to a fraud on the clearly appear that such communica must client”). by Syl. pt. v. See also Savas by were the client that in tions made Savas, 181 W.Va. 382 S.E.2d purpose.”). party asserting tent and The the (“A upon claim of fraud the court is reserved privilege opportunity also have only egregious conduct on the the most discovering why, light of the demonstrate officials, part attorneys, judges case, party’s prima privilege the should facie judicial process to be sub which causes the 5-4(E)(6)(a), Cleckley, § remain intact. 1 ordinarily not relate to mis verted. It does (citation omitted). (Cum.Supp.1998) representation or fraudulent conduct be Appellate review of a circuit court’s themselves”). parties tween the excep apply the crime or fraud decision attorney- whether the To determine compel tion and to the disclosure materials privilege may properly be client exercised attorney-client protected by otherwise the communication, party protect particular the Syl. privilege is for an abuse of discretion. seeking privilege bears to assert the the Ctr., Hosp. Inc. v. pt. State ex rel. United proving burden of that confidential communi Bedell, 199 W.Va. party client cations between and his/her (“ discovery ruling court’s ‘When circuit attorney privilege applicable. render respect privileged materials will re Ctr., Syl. pt. Hosp. ex rel. State United compelled ma in the disclosure of those sult Bedell, 316, 484 Inc. v. S.E.2d terials, stringent a hard and more examina (1997) (“ establishing ‘The burden of the at appeal if given tion will be on to determine product torney-client privilege or the work Syl. court abused its discretion.’ the circuit elements, always exception, in their rests all F pt. ex rel. U[nited] S[tates] State asserting person it.’ Canady, 194 [idelity] G[uar. Co.] & [idelity [tates ] ] rel. S F & [nited ] State ex U (1995).”). 431, 460 S.E.2d 677 W.Va. Canady, G[uar. Co.] (1995).”). contrast, reaching the of the By when a Prior to merits reviewing ruling arguments party attempts applicability parties’ to overcome court, however, must circuit we first privilege employing the crime or of the of the attorney-client of the discovering party, and determine the nature exception, fraud applicability of asserting privilege, privilege in this case and the party bears not the par any exceptions privilege. to that Both establishing, by prima the burden of facie alluded, indicate, evidence, ties and the circuit court that a crime or fraud has tarnished attorney-client relationship privileged that because the allegedly communications Leavitt and Anne was thereby authorizing 2A Mi between defendants their disclosure. California, in the California Attorney at 618 created state ehie’s Jur. and Client (1993) (“To succeed, govern applicability of the [party seeking to law should any exceptions thereto. In the prima privilege privilege] overcome the must make tort, laws, theory an intentional if it previously that this is of conflicts we realm exists, privi- attorney-client relating to the substan “[m]atters held that lege exceptions is one of the to it.... parties governed are rights tive —This privilege except I think that exists as to th[e] occurred, injury place where the law of the may apply to the tort.” where it intentional pertaining to remedial while matters above, jurisprudence As discussed Syl. the law of the forum.” are controlled expanded scope this State has not Morrison, 722, 110 pt. Forney v. exception or fraud include the com- crime .to (1959). specific regard to With S.E.2d extinguishing of a tort as a basis for mission matters, involving evidentiary we conflicts attorney-client privilege. Because such the admissibility or inad “[t]he have noted that jurisdic- exception not exist in this does missibility pertains remedy to the of evidence tion, in the circuit court abused its discretion governed by the law of the forum.” and is relying upon exception this modified to re- generally 4A Forney, id. See protected by quire the disclosure of material Laws, and Michie’s Jur. Domicile Conflict of attorney-client privilege. the precisely, in More Residence Nevertheless, Eisen- while we find that the Gebr. Und Eickhoff Maschinenfabrik Starcher, citing in recognized that circuit court abused its discretion gieberei mbH v. we “ decision, wrong the reason for its this error governs ... local law of the forum ‘[t]he not constitute reversible error as the pre-trial practice, including taking and does the ultimately result attained. correct was depositions, discovery penalties and use of manner, the record before Court proper request comply for refusal to for ” prima made a indicates John 623 n. information[.]’ facie showing attorney-client that the basis the (quoting 498 n. 8 Restate S.E.2d relationship between defendants Leavitt and (Second) § 127 ment of Conflict of Laws cmt. upon Anne was the commission of a fraud the a(5) (1969)). Accordingly, we find that the court and that the confidential communica Virginia, as the law of the State of West ordinarily protected by attorney- the tions case, governs the forum state of this nature privilege were made in furtherance of client attorney-client privilege appli the and the present this fraudulent scheme. The record cability exception or fraud there of the crime that, doubt, ed to us indicates without a Anne appeal. to at issue in this in consulted Leavitt order to subvert John’s Turning ruling now to the of the circuit attempts adoption oppose of their child court, that, by August we note order entered adoptive placement and to obtain an court determined that the circuit Moreover, judicially inaccessible forum. attorney privilege apply client does not purportedly privileged communications tran to the communications between defendants spiring defendants Leavitt and between David Keene Leavitt and Anne Gilmore only alleged Anne were not related to the Conaty pertaining adoption to the of the fraud, integral part but indeed constituted an Conaty son of Anne and John Kessel performance planning of the 'complaint alleges the reason that Examples fraudulent scheme. of this fraud against attorney causes of action both the perpetrated the court orchestrated and therefore, client, fraud, including through legal representation Leavitt’s attorney privilege ap- client does not include, to, Anne but are not limited ply- notify Anne and Leavitt to failure both order, appears On the face of this County of the contem Cabell Circuit Court properly applied circuit court the crime or plated adoption proceedings upon Canadian underlying proceed- exception fraud learning pendency of the of John’s inverse ings, finding action; the communications be- paternity commu Leavitt’s facsimile privileged prevent Anne and Leavitt were not cautioning tween Brian him to nication to Looking to the tran- learning anything on basis fraud. more about John order, hearing script resulting Baby Boy Conaty’s pre-adoptive placement in this however, thereby thwarting judicial may discern the circuit court’s John’s efforts we reasoning ruling: parental “I to assert his its subscribe to West behind verdict, they jury will not substitute their relationship with his infant to establish son; jury.”); Sargent repeated renunciation of views for that of and Anne’s Malcomb, County, at releases which the Cabell medical (“[A] opinion mere difference of between Virginia, had ordered her Circuit Court West jury concerning the trial attempts the court and in furtherance of to execute John’s justify Therefore, proper recovery will not find that amount child.97 to locate his setting either trial court or this extinguished the Court exception crime or fraud thereby ground inadequa on the attorney-client aside the verdict privilege this case (citation omitted)). cy or per- files excessiveness.” permitting to access Leavitt’s “ Nevertheless, jury verdict of a legal representation ‘[a] of Anne will taining to his the amount Baby Boy Conaty. set aside where thereof adoption of that, light when considered in the clearly proof, it is shown that the E. Syl misled a mistaken view of the case.’ Damages Excessiveness Awards 3, Faulkner, labus, Raines v. 131 Point 10[, 2, Syl. final conten pt. The defendants’ 48 S.E.2d 393 ].” W.Va. 868, damages Queen, award appeal tions on are that v. 155 W.Va. 189 S.E.2d Keiffer “ Furthermore, by jury by the trial court [may] ed and ratified set ‘[c]ourts 842. reviewing challenges jury they [if] were excessive. aside verdicts as excessive are monstrous, enormous, damages generally, beyond a deferential awards at first blush measure, unreasonable, employed: outrageous, “in the absence of standard is all measuring damages, specific manifestly jury passion, partiality, prej rules show [1], largely corruption.’ Syl. part,] awarded rests in the [in amount be udice or Pt. Co., Inc., jury, Majestic of the and courts are reluc 160 discretion Addair v. Petroleum (1977).” 5, 105, 22 Syl. pt. with such a verdict....” tant to interfere 232 S.E.2d 821 W.Va. 1021, Inc., Damages part, Hosp., at 1067 Am.Jur.2d Roberts v. Stevens Clinic (footnotes omitted). (1986). judicial 492, This hesitance 176 W.Va. 345 S.E.2d 791 With “strong presumption mind, cor principles proceed from the to re stems these assigned jury assessing assignments rectness to a verdict the defendants’ of error. view Ramirez, 463, damages.” v. 243 Va. Reel Damages 1.Compensatory Award (1992). 226, Accordingly, 416 228 S.E.2d contest as ex The defendants first may jury verdict ... not be set aside [a] compensatory damages amount of cessive the merely the trial court be- as excessive jury by the approved awarded damages greater cause the award of underlying Following court. the trial circuit if he judge than the trial would have made jury compensatory appeal, awarded charged responsibility of had been with the damages as follows: determining proper amount of the expenses reasonable costs and 1. The This cannot set aside a ver- award. Court fees, expended legal inves- John Kessel merely excessive ... because dict as attempt tigator and other fees fees majority all of the Court members custody gain of him: to locate the child and made an award of a lesser would have $150,000 initially charged respon- if with the amount sibility determining proper amount suffering, Any pain and an- 2. mental anxiety plaintiff of the award. has under- guish and gone proximate as a result of to date Malcomb, 393, 401, Sargent 150 W.Va. 146 v. $500,000 defendants’ conduct: (1966). v. See also S.E.2d Keiffer solace, loss of the soci- Queen, 3. John Kessel’s W.Va. (1972) (“The of the usually ety, companionship and services state that courts by the proximately caused might greater child that were though they have awarded $1,000,000 the defendants: in the conduct of or lesser amount than that contained Leavitt, 75 attending and Anne see Kessel v. dants Leavitt 97. For further discussion of the fraud (Cal.Ct.App.1998). Cal.Rptr.2d attorney-client relationship between defen- requires you If believe with reasonable certain- such excessiveness reversal pain ty Kessel will suffer mental that John award: “ ‘ anxiety suffering, anguish or in the “Courts must not set aside ver future, pain and suffer- then future mental they dicts as excessive unless are mon anxiety may taken ing, anguish or into strous, enormous, beyond at first blush all you award an consideration and measure, unreasonable, outrageous, and plaintiff compensate amount to for said manifestly jury passion, partiality, show $350,000[.] elements: [1], Syl. prejudice corruption.” Pt. Ad Thereafter, post-trial the defendants filed a Co., Inc., Majestic dair v. Petroleum judgment pur- motion to alter or amend (1977).’ Syl. pt. W.Va. 59(e) suant to Rule West Inc., Hosp. Roberts Stevens Clinic court, Procedure.98 The circuit Rules of Civil (1986).” Syl. 345 S.E.2d 791

reviewing the evidence introduced Gates, Capper Pt. trial, damages determined that the awarded (1994). S.E.2d 54 compensatory for the first element of dam- Virgi- Tanner v. Aid Rite West ages, expenses” “reasonable costs and associ- nia, Inc., 461 S.E.2d 149 attempts ated with John’s to locate and ob- custody Baby Boy Conaty, tain did not Thus, comport presented. Under the facts and circumstances of this with the evidence ease, portion compen- the defendants contend that the com- the court reduced this $150,000 satory damages pensatory damages award from award is excessive. $116,687.47, They suggest only commensurate with the record that the concrete evidence expenditures. damages by of these re- evidence With tendered John was the recita- spect remaining compensatory to the three expended legal tion of amounts he for damages figures, though, the deter- investigatory services in furtherance of his supported mined that the evidence these cal- regain Apart efforts to his son. from this jury’s culations and affirmed the award. proof, intimate that defendants John justify provide failed to sufficient evidence to Court, Before this the defen compensatory damages. the remainder of the complain compensatory dants that the dam They charge expert psychiatric that the wit- ages by jury awarded were excessive. testifying on indi- ness John’s behalf failed to that, examining The defendants assert John, personally, cate that had sustained award, propriety damages reviewing of a psychiatric problems definite from the Cana- particular court must determine whether a adoption Citing dian of his son. Heldreth v. is, fact, compensatory damages award ex Marrs, 481, 425 157 W.Va. S.E.2d cessive. (defining requirements recovery for under may Before a verdict on the be reversed negligent claim of infliction of emotional dis- excessiveness, basis of the trial court must tress.) The defendants that also state John appraisal make a detailed of the evidence present any did not evidence as to the value bearing damages. on Because the verdict Baby Boy Conaty’s by services lost to him deference, below is entitled to considerable virtue of their conduct. appellate court should decline to disturb damages appeal a trial court’s award of on Finally, propose the defendants that long supported as that award is some jury compensatory awarded the excessive competent, going evidence to all credible damages upon passion in this case based essential elements of award. support prejudice. argument, of this Wimmer, 199, Syl. pt. Reed v. defendants cite Roberts Stevens Clinic Inc., Continuing Hospital, 465 S.E.2d 199 this anal- W.Va. (1986),

ysis, propose upheld the defendants next wherein a million once this Court $3 damages wrongful award has been determined to be award for the death of a toddler. excessive, the court must determine whether that the child at in the Given issue instant judgment 98. The West Rules of Civil Procedure or amend the shall be served not later 59(e), provide, days entry judgment.” in Rule motion to alter than 10 after "[a] Co., Peabody deceased, living singer v. Coal W.Va. rather but is not case (emphasis parents, the defendants 474 S.E.2d “loving” adoptive added). sought pun- Syl. Bowling jury improperly pt. also v. Ansted See urge that the Inc., for their actions hrysler-Plymouth-Dodge, the defendants ish C (1992) (“Where compensatory awarding John exorbitant damages. convincing by clear and evi can be shown engaged in dence that a defendant has contrast, disputes the defendants’ By John injured plain conduct which has fraudulent compensatory damages argument tiff, recovery attorney’s of reasonable fees excessive because by the were awarded damages in addition to the be obtained supported both the evidence the award is fraudulent con sustained as result of the Further, repre- applicable law. John duct.”). damage that, upon the million $3 sents based Roberts, was decided over ten award in which injuries parent recovery Where a seeks present ago, jury’s verdict years child, prevailing regarding minor his/her Citing Roberts ease was not excessive. parent may remunera- plaintiff also recover Inc., Hosp., Clinic Stevens services tion for the value of the child’s 345 S.E.2d 791. earnings impaired future lost and/or and/or Primarily, compen the aim of wrongful ac- as a result of the defendant’s plaintiff to satory damages to restore a § Damages at 166 tions. Am.Jur.2d presently position financial would (1988); Damages he/she Miehie’s Jur. 5C injurious enjoy for the defendant’s con but case, Thus, the facts of this 85-86. under manner, “Compensatory dam In this duct. received, recovery sought, properly indemnify injury to ages plaintiff compensatory for the various elements time, necessary expenses, property, loss of jury. damages by the considered They propor are and other actual losses. error, assignment the defen- With equal in measure or extent tionate or compen- urge this Court to reverse the dants injuries, plaintiffs or such as measure alleged satory damages upon award based its loss, given amends there actual and are as noted, review we have excessiveness. As 7,§ Damages at 46- for.” Michie’s Jur. 5C jury com- purportedly excessive verdict of a omitted). (1998) (footnotes gener “[T]he appellate standard of mands a deferential damages give awarding is to com al rule in otherwise, are most “courts review. Stated loss; is, put pensation pecuniary that jury verdicts as reluctant to set aside position, far as plaintiff in the same so Queen, v. 155 W.Va. damages_” Keiffer it, money [in] he would have been can do (1972). 842, 868, 873, Conse- 189 S.E.2d [been] not committed.” [had] if ... the tort unless jury will not be set quently, a verdict (foot 18, § Damages at 63 Miehie’s Jur. 5C unsupported by the evidence or other- it is omitted). Generally, in an action note enormous, “‘monstrous, appears wise tort, plaintiff prevailing in grounded measure, unreason- beyond all at blush first for, damages among compensatory recover able, manifestly outrageous, [demonstra- and in expenses actually incurred things, other partiality, prejudice or jury passion, of] tive redressing injury occasioned repairing ” 5, v. Syl. pt. part, Roberts corruption.’ neces by conduct and sums the defendant’s 492, Inc., Hosp., 176 W.Va. Stevens Clinic sary compensate plaintiff his/her 1, part, Syl. pt. (quoting S.E.2d 791 present future injuries and and/or his/her Co., Inc., 160 Majestic Petroleum Addair v. pain suffering result mental and physical or 821). 105, See also 232 S.E.2d tortious behavior. ing from the defendant’s Queen, part, 155 W.Va. 116; 78-79; 47; § § § at at at Id. Keiffer jury (mandating reversal Furthermore, 116-17, 119, 123-26. at clearly “it is shown verdict where plaintiffs measure axiomatic that “[i]t is by view of jury misled a mistaken in fraud damages in a cause of action (internal citation omit- quotations and case” any injury incurred as a result would be ted)). Per- fraudulent conduct.” the defendant’s intentionally fraudulently Upon proceed a review of the fendants and se- below, Baby ings compen cannot find that the creted from John the whereabouts of we Boy Conaty by jury adoption until his had satory damages awarded to rec Canadian finalized, ompense expenditures by been but could also have conclud- John’s occasioned that, actions, ed but for the defendants’ the defendants’ fraudulent conduct were ei opportunity would at least have had an unsupported by improp ther the evidence or of, with, custody seek or visitation his child. erly jury’s passion prejudi upon based and As a result of the defendants’ efforts to Claiming compensatory ce.99 expedite facilitate and the international cus- evidentiary damages support, lacked the de tody proceedings, John did not even have a perceived fendants seize John’s failure possibility seeking, realistic much less ob- provide proof sufficient of his claims for of, with, taining, custody or visitation his son. However, pain suffering. mental “[w]e facts, light jury properly of these required plaintiffs have who have suf could have determined the value to John of damages fered emotional distress to buttress “solace, society, companionship his son’s claims corroborative evidence approximated services” to have million as $1 peril having their claims dismissed as a complete a result of the defendants’ and ut- County matter of law.” Slack Kanawha deprivation parental ter of John’s relation- Auth., 144, 152, Hous. & Redev. ship with his son. Therefore, plaintiffs expert failure to introduce witness Lastly, suggest the defendants testimony specifically describing men his/her compensatory damages awarded anguish, pain, suffering tal is not neces jury compared were excessive as to the dam sarily recovery fatal to of emotional dis ages wrongful awarded for the death of a damages if there tress exists the record young child Roberts v. Stevens Clinic Hos support evidence to the award. We find the Inc., pital, 345 S.E.2d 791. evidentiary record to be such that the compensato With this characterization of the properly could concluded that John had award, however, ry damages disagree. mental, emotional, psychiatric sustained acknowledged In Roberts we a dam “[t]hat difficulties as a result of the defendants’ age ‘precedent shattering’ award is is of little participation fraudulent in the Canadian damages sup moment when the in fact are Therefore, adoption of his son. we affirm ported the record.” 176 W.Va. at upholding por the circuit court’s order (quoting Pippen S.E.2d at 811 v. Denison jury’s tion of the verdict. Corp., Mich.App. Div. Abex (1976) (citation 239 N.W.2d 709-10 defendants also cite the lack of The omitted)). footnote Because we have con evidentiary support recovery for John’s of damages by jury cluded that the awarded the Baby Boy Conaty’s sums for the value of compensate to John for his losses occasioned by him services lost to virtue of their fraudu by the defendants’ fraudulent conduct were Again, though, agree lent conduct. evidence, supported by record the the mere the compen circuit court’s affirmance of the fact that an award such an amount has not satory damages award based the fact previously by upheld been this Court is not “jury’s that the award this case ... was ” propriety. determinative of the award’s Ac within the bounds of the evidence.... cordingly, we affirm the circuit court’s deci case, Throughout the trial of this John was upholding proper compensatory sion as the permitted present, to and the defendants damages by jury awarded the in this case. rebut, permitted were to evidence of the pre defendants’ fraudulent conduct which Damages 2. Punitive Award commencing parent-child vented him from relationship arg-ue with his son or from otherwise The defendants also the ex- enjoying privileges parenthood. punitive the damages Not cessiveness of the award. only trial, jury underlying could the have found that the de- At the conclusion of the the supra explanation only 99. See Section II.B.2 for an under one his two alternative theories of ability liability. John’s to recover from the defendants punitive following perceived dam this Court the excessiveness of the jury the assessed $5,000,000[;] punitive damages award. Leavitt Brian Co- ages: “David Conaty $250,000[;] naty $500,000[;] [] Anne Initially, suggest two-step the defendants $50,000[; Conaty Eleanor and] Dr. Thomas inquiry propriety to determine the Conaty $50,000[.]” then filed The defendants (1) damages punitive circuit court’s award: judgment, amend the a motion to alter or whether, upon nature considering the 59(e),100 P. pursuant R. Civ. Rule to W. Va. conduct, punitive defendant’s an award punitive damages and a to review the motion (2) damages punitive if a appropriate is and award, by Fleming v. required Garnes as damages permissible, award is whether the Inc., Landfill, damages actually of punitive amount as (1991).101 court, employing the The circuit Citing sessed is excessive. Alkire by this Court for review Parsons, factors enumerated v. First Nat'l Bank W.Va. damages,102 (“Our punitive (1996) deter awards of punitive 475 S.E.2d 122 punitive damage mined that all of the awards damage jurisprudence a two-step includes punitive first, none of proper paradigm: were and that a determination whether From this conduct another per awards was excessive. affirmance of an actor toward court, punitive appeal person damage to son entitles that to a the circuit defendants court, any may factors supra See 98 for the text W. Va. R. trial of the above also 100. note 59(e). presented jury. be Civ. P. Rule Additionally, Syllabus point 3 of Games directs: Syllabus Fleming jury When instructs the point 101. 2 of Garnes Land the trial court on should, Inc., (1991), fill, punitive damages, at a 413 S.E.2d 897 the court mini- mum, carefully explain the factors be con- mandates: awarding damages. punitive sidered in These system an award our and review Under factors are as follows: awards, punitive damages of (1) there must be: (1) damages bear a Punitive should reason- discretion; jury constraint on reasonable relationship likely able harm that is (2) adequate meaningful review as occur the defendant’s conduct well as using principles: trial well-established court actually has occurred. If the harm (3) meaningful adequate appellate and review, likely defendant’s actions caused or would application when which occur an harm, only slight cause a similar situation appeal. made for relatively damages should be small. If the added). (Emphasis grievous, damages great- harm is should be Syllabus Fleming point 4 of Garnes Land er. Inc., fill, (2) re jury may (although The consider quires: specifically instruct each court need on unfairly doing prejudi- element if so would trial court reviews an award of When the defendant), reprehensibility cial to the should, punitive damages, mum, a mini- jury The should take the defendant’s conduct. given the factors consider long defendant into account how continued following well additional factors: as the actions, his he was aware his ac- (1) whether litigation; The costs of likely causing were to cause tions were harm, imposed Any sanctions on the criminal attempted conduct; he to conceal or cov- whether his defendant for them, up the harm caused er actions or against Any actions the same other civil conduct; engaged defendant, the defendant often based on the same whether/how past, punitive damages similar conduct in the whether appropriateness of The reasonable efforts to make encourage defendant made fair and reasonable settlements prompt by offering settle- wrong amends a fair has been A when a clear committed. punitive harm caused once his may justify damages the ment the actual is factor that liability plaintiff. clear to him. litigation became cost of to the (3) wrong- profited If the defendant not all relevant information is avail- Because conduct, damages punitive likely should re- jury, that ful the able it is in some cases to the profit in excess jury that move the and should be the an award reasonable will make is them, discourages profit, future jury so that the award on as the know but that the facts by adjustment by bad acts defendant. require the trial the will downward fairness, pu- As through that a matter of fundamental remittitur because of factors damages a reasonable rela- nitive should bear prejudicial to the defendant if admit- would be trial, damages. tionship compensatory imposed ted at such as criminal sanctions position of the defendant is pending against The financial elsewhere similar lawsuits However, option the at the relevant. defendant. defendant, the Id. or in the sound discretion of Frobe, Mayer position assessing award under v. 40 W.Va. financial before such ex (1895); second, punitive damages. if S.E. 58 dam cessive justified, age award is then a review is man Finally, Brian defendants and Dr. and punitive damage dated to determine if the Conaty punitive Mrs. intimate that the dam- Fleming award under is excessive Garnes v. ages exorbitantly assessed them were exces- Inc., Landfill, 186 W.Va. 413 S.E.2d 897 in damages sive that the amount of these “far (1991).”). . any alleged wrongdoing exceeds committed by They punitive represent they The first assert that [them].” defendants that are guilty damages properly against wrongdoing providing cannot of no other assessed than they acting conformity support familial daughter, them as were to their sister Because, claim, they then-applicable they the law of Anne. the State of Cali- committed They acts, rely upon improper fornia. no unlawful or punitive then the case of the America, Gore, damages against BMW North Inc. v. assessed them im- are both 559, 572, proper U.S. 116 S.Ct. excessive. (1996) (plurality opinion), L.Ed.2d by responds stating punitive John that the proposition punitive damages for the that are damages by jury approved awarded the improper punish doing of an act that by proper given the circuit court are place was at the lawful time or that it Syl. defendants’ Citing fraudulent conduct. performed. They suggest that because Smith, pt. Wells their actions govern- were not violative of the (“ tort, S.E.2d 872 ‘In actions of where law, presumably pertaining California gross fraud, malice, oppression, wanton, adoptions, they charged puni- cannot be willful, or reckless conduct or criminal indif damages tive based this conduct. obligations ference to civil affecting the rights appear, legislative others or where arguing punitive Next damages it, jury enactment authorizes assess against excessive, assessed them were exemplary, punitive[,] or vindictive dam complain defendants the circuit court ’ ages Syllabus .... part, Point Mayer improperly jury’s removed from the contem Frobe, (1895).”), 40 W.Va. 22 S.E. 58 plation “the wealth of [the defendants” part grounds overruled in on other instructing them upon appropriate fac Inc., Fleming Landfill, Garnes v. tors consider in awarding punitive dama Because, 413 S.E.2d 897. John con ges.103 They indicate that this element has tends, jury conclusively found the defen been found Court be relevant to a fraudulently dants had interfered with his jury’s punitive damages, assessment of citing parental efforts to assert his and to Syl. pt. part, Fleming Garnes v. Land relationship son, establish a they with his Inc., (“(5) fill, 413 S.E.2d 897 permitted were to consider and to award position The financial of the defendant is punitive damages. relevant.”), and that John’s failure to intro duce such improperly evidence at trial re Additionally, suggests jury’s moved this criterion from the consider punitive damages amount of awarded ation. The complain defendants also jury that the proper and not Relying excessive. punitive damages against awarded them far upon this Court’s determining standard for exceed their net worth appropriate and that punitive damages amount of permitted should have been to consider their set forth in Corp. TXO Production v. Alli- ruling upon parties’ (as punitive damages offered). 103. In Plaintiff's Instruction 71No. The instructions, the circuit court eliminated from court determined that there was no evidence in jury’s portion consideration that position of John’s the case of the "financial each of relating instruction Although generally defendants’ financial defendants.” the court noted position status: objected "[t]he financial defen- that the defendants to this instruction although dants] is relevant inasmuch objected specifically as the wealthier the and the defendants [are,] greater instruction, the portions defendants] the amount of to various of this it is not punitive damages apparent should be in to order achieve from the record that the defendants punishing the desired objected specifically effect of the portion defendants] to the above-excised discouraging engaging the pertaining defendants] from of this instruction to the relevance of in the same or similar acts in the future[.]” the defendants’ wealth.

191 1, Syllabus wrong.’ from such Corp., represents that Point John ance Resources 483, actually damages Snodgrass, 123 16 punitive O’Brien W.Va. amount of (1941).” 4, Syllabus by jury point 621 Har- was well within S.E.2d awarded Bank, 673, permissible by this Court. First held to be less v. Nat’l 169 W.Va. amount 15, (1982). Syl. pt. Corp. Prod. v. Alli Citing TXO 692 289 S.E.2d 457, 419 Corp., 187 W.Va. ance Resources 588, Syl. pt. Sopher, Coleman v. 201 W.Va. (“The limit ratio of outer of the (1997). vein, In S.E.2d 592 we have compensatory damages punitive damages to punitive damages determined awards to acted in in which the defendant has cases myriad important to permissible achieve a disregard negligence or wanton with extreme objectives. harm no intention to cause but with actual “[Pjunitive damages pur- serve several nei compensatory damages are and which (1) Among primary poses. ones are: very large roughly 5 to negligible nor ther is defendant; punish to deter oth- However, has acted where defendant and, course; pursuing ers from a similar intention, higher much ratios actual evil provide compensation additional unconstitutional.”), grant per are not se cert. egregious plaintiff to which conduct ed, 594, 121 part, 506 U.S. S.Ct. Furthermore, subjected.”_ has been (1992), aff'd, 509 L.Ed.2d 532 U.S. “‘[[pjunitive damages] encourage plain- a 2711, 125 L.Ed.2d S.Ct. bring might be tiff to an action where he Lastly, urges that fact that the John discouraged by the cost of the action or finan- the defendants’ circuit removed proceed- a the inconvenience of criminal jury’s position from the consideration cial ing.... [They provide a substitute also] punitive not warrant reversal of the does personal revenge by wronged par- Rather, represents damages award. John ty.’” that his efforts to obtain the defendants’ n. Sopher, 201 W.Va. at 603 Coleman by their financial information were thwarted (quoting at n. 22 Harless v. 499 S.E.2d comply pre-trial several dis- failure to Fairmont, First Nat’l Bank in 169 W.Va. covery requests regarding financial their n. at 702-03 & n. 691 & 289 S.E.2d the circuit court did not condition omitted)). (additional Thus, “‘[i]n citations introducing preclude party from such either malice, tort, fraud, gross actions of where Accordingly, indi- at trial. evidence wanton, willful, oppression, or reckless or now waived cates the defendants have or criminal indifference to civil obli- conduct right complain alleged of this defect their ap- gations affecting the of others they cooperated with John’s because neither jury may pear,”’ properly consider pre- to secure such information nor efforts punitive damages against the defen- assess on their behalf. sented such evidence own upon the facts circum- dants based wrong- surrounding the defendants’ stances error, assignment With part, Alkire v. ful conduct. request us to determine the defendants Parsons, First Nat’l Bank their an award of whether conduct warranted (quoting Syl. pt. 475 S.E.2d punitive damages and punitive whether Frobe, 246, 22 part, Mayer v. S.E. damages by the and ratified awarded 58). Thus, first trial excessive. we court were under which must examine the circumstances Upon appeal this Court proper. punitive damages award Gener assessment, review punitive damages of a ally, damages in first in punitive awards “ facts and exemplary damages are to determine whether the ‘[pjunitive stance case, as, case at are suffi jury may allow issue proper circumstances such damages. permit punish- an award against way of cient the defendant Alkire, malice, wilfulness, wantonness, Syl. pt. ment for . judicial two-part review wrong (describing aggravation like of his other awards). conducting damages compensation punitive

plaintiff, and above full over damages, punitive indirectly propriety injuries directly or result- review for all employ prohibits imposing] we the criteria set forth de “a State [from] above economic scribing in punitive dam situations which on its sanctions violators of laws with the ages proper. are We next changing review intent of the tortfeasors’ lawful con- awards to ascertain whether the amount of 572, other duct in States.” 517 U.S. at actually punitive damages 1597, (footnote awarded S.Ct. at 134 L.Ed.2d at 824 omitted). jury proper is or an award However, whether such is we can before make an 7, Alkire, Syl. pt. excessive. For this id. punitive damages automatic declaration that speci undertaking, “apply[ ] we the standard case, improper in are this we first must Syllabus Syl. in pt. 5 of whether, fact, fied Point Garnes.” determine in then-existing law Alkire, part, in id. This canon directs: permitted in California con- defendants’ plaintiff complains. duct of which the now Upon petition, this Court will review all punitive damages awards. In our review presenting argument their to this petition, of will we consider the same Court, the defendants intimate that their ac- require jury factors that we and trial complied governing adop- tions with the law consider, judge petitions and all must in tions in State of California 1991.105As every address each factor forth in set to in supra, though, we alluded note case[104] Syllabus and 4 of this Points 3 governing underlying law adoption of with particularity, summarizing the evi Boy Baby Conaty appropriately would more subject presented dence to the on the Alberta, Canada, law be the of where the post-judgment or to the trial at the finalized, adoption opposed was as to the law Assignments stage. review of error relat Court, v. Superior California. See Marr ed specifically to a factor in not addressed Cal.App.2d 527, (sug- 250 P.2d 739 petition will be deemed waived as a gesting adoption that comply consent to must matter of state law. jurisdiction with laws adoption which Inc., pt. Syl. Fleming Landfill, Garnes v. petition filed)-, Johnson, is Estate 413 S.E.2d 897. With these Cal.App.2d (indicating 223 P.2d 105 mind, standards in turn we now to the defen validity adoption that is determined assignment dants’ of error. state or foreign country laws in which The charge finalized). defendants first adoption as- is As the defendants punitive damages against sessment of them do not assert that their actions either com- improper, relying upon plied is the case of BMW adoption with violated the laws of America, Gore, 659, Alberta, Canada, North Inc. 617 U.S. we not need further ad- (1996) (plu- 116 S.Ct. L.Ed.2d dress this matter. See Addair rality opinion). They Bryant, contend that because 284 S.E.2d 374 in conformity their actions were (“Assignments are argued error that California, then-applicable presumably law of appeal the briefs on be deemed they waived.”). governing adoptions, be cannot now as- this Court be See also W. Va. (“The 10(d) punitive damages. sessed with R.App. appellant’s While their P. Rule brief valid, argument facially appears to petition shall follow the same form the for punitive 3(c) (“A damages cannot set aside appeal.”) petition award and Rule ap- this peal on basis. It true that the United following shall state the ...: 3. The Supreme assignments States Court upon Gore decision ap- error relied on case, supra Syllabus See applied present 104. note 102 for the text of As Defendants Garnes, points 3 and 4 of complied with the law of California the time 897. baby placed adop- Defendant Anne’s Thus, tion. even if this Court were to hold We surmise that the defendants intend to right preclude mother does not have rely upon applicable adoption pro- the laws developing an unwed father from a relation- ceedings in but California we are unable child, ship holding with his such a could not be is, fact, certainty state the law punish used to Defendants because Defendants legality which the defendants base the existing acted in accordance with California appellate their conduct as their brief does not law. clearly phrase argument provide support- authority: ive

193 likely will re- be bound forever hold their 4. Points and authorities peal_ [and] law-”). peace.... upon emphasized [sic] a discussion of must be [and] [I]t lied appeal shaped that contours are at the for of Giving the the benefit the defendants by setting the court circuit level forth doubt, however, also we will examine wheth- particularity appropriate the time complied gov- law with the er their conduct ground legal parties the which the in erning of Califor- such behavior the State ” rely.’ intend to in 1991. The defendants’ fraudulent nia regarding Baby information concealment of Educ., Logan County v. Bd. 201 Hanlon of whereabouts, response in Boy 305, 315, 447, 496 W.Va. S.E.2d 457 Conatos information, requests such direct- for John’s 417, (quoting Browning, v. 199 State W.Va. provid- ly the law of contravened California 425, 1, (1997) (quoting 9 ex 485 S.E.2d State ing a cause of action for “intentional conceal- Caperton, Cooper rel. v. of a material fact”. Stevens v. ment See (1996) (citation 162, 470 S.E.2d 170 omit 605, Court, 608-09, Superior Cal.App.3d 180 ted))). also W. R. See Va. Civ. P. Rule 46 (1986) (citations 624, Cal.Rptr. 626 225 omit- (“Formal rulings exceptions of orders ted). Accordingly, the we find that award of unnecessary; pur the court are but for all damages pre- in this was not punitive case poses exception for which an has heretofore the decision the United States cluded necessary party, been it is that a sufficient America, Supreme in BMW North Court at the order the court is ruling time Gore, 559, 1589, Inc. v. 517 U.S. 116 S.Ct. sought, made or known to court the make L.Ed.2d 134 action tohich he desires the court tó take or objection his action court ask The defendants next us to added)). grounds (emphasis [.]” therefor punitive damages examine amount of the “ Hence, objections were not shown ‘[w]here jury and wheth awarded to ascertain court, made in the trial and the have been The er this amount is excessive. defendants jurisdictional not in matters concerned were position that their assert because financial character, objections not such will be consid consideration, jury's was removed from Syllabus point appeal.’ ered State on punitive damages against awarded them Ferguson, Road v. W.Va. Comm’n were excessive and should be set aside (1964).” S.E.2d Coleman in reason. As we note described Sopher, 201 W.Va. S.E.2d supra, the this factor circuit removed finding jury’s from the consideration just no evidence” the de “[t]here [wa]s Nevertheless, even if we di position in the fendants’ financial evidence rectly review defendants’ contention at trial. While the defendants submitted of their financial status resulted the omission objected generally to instruction enu John’s damages, punitive in an excessive award of jury merating the various criteria could reasoning. persuaded by their we are deciding assess whether to consider correctly state that a The defendants punitive damages, are award we unable de properly the wealth of the consider locate the record indication that rendering punitive damages fendants in objected specifically to the cir defendants Garnes, See, part, e.g., Syl. pt. award. fi cuit court’s omission the defendants’ (enumerating position portion instruction. nancial of this by jury awarding criteria to be considered Thus, compelled repeat our oft- are fi damages noting punitive “[t]he' cautionary: stated rele position the defendant nancial “ Smith, vant”); Syl. pt. preserve appellate ‘To re- Wells an issue (“In view, assessing punitive party must articulate into damages, the trier of fact should take to alert circuit sufficient distinctiveness sur consideration all of the circumstances court to the nature of the claimed defect. particular including parties rounding occurrence The rule in is that West courtf,] wrongdoing," clearly the extent speak must circuit on nature that, lines, inflicted, party com- they forget they harm the intent pain if their act, mitting perpetrator, the wealth proper ternal uncle to be New under York any mitigating law); Leineweber, well as circumstances.” Kramer v. 642 S.W.2d added)). (emphasis (Mo.Ct.App.1982) 369-70 (affirming punitive damages against paternal award of Although jury, court, reviewing and a grandmother); Oglesby, Silcott v. 721 S.W.2d may properly posture consider the financial (Tex.1986) (permitting recovery defendant, particular yet of a we have punitive damages grandfa from maternal conclusively require consideration of this fac- ther). Indeed, specifically recognized tor. have importantly, though, More is the fact that never ... plain- [w]e have mandated that a just the named did provide defendants not tiff must introduce evidence of the wealth support familial daughter. to their sister and of the defendant in order to puni- recover Rather, jury weighing the evidence in cases, damages. tive In some the defen- specifically this case found that each of these dant wish to meager demonstrate its defendants, Conaty, Brian Dr. and Mrs. way holding financial status as a down a actively had committed fraud order to punitive damage award. The failure of the prevent asserting parental John from his plaintiff evidence, to introduce such howev- rights ultimately preclude and to him from er, preclude punitive does not damage establishing parent-child ever relationship award. Thus, with his son. we do not find that the County Slack v. Kanawha punitive Hous. & Redev. damages against assessed defen- Auth., 144, 156, dants Brian Conaty and Dr. and Mrs. are Accordingly, we find that disproportionately given par- excessive their punitive damages jury in ticipation assessed adoption Baby Canadian approved by case and Boy the trial Conaty court are not consequent permanent and the solely excessive deprivation because the was not parental rights. John’s In permitted sum, to consider the defendants’ finan we affirm the circuit up- court’s order position awarding cial damages.106 holding jury’s punitive damages award of against the defendants for their fraudulent lastly The defendants contend that usurped conduct which parental John’s punitive damages against awarded defen rights. Conaty dants Brian and Dr. and Mrs. were exorbitantly considering they excessive did

little “loving, more than act as supportive F. family help members [who] tr[ied] Defen Cross-Appeal: Rights Paternal through dant period Anne a difficult in her Grandfather life.” To only resolve this issue we need jurisdictions articulate that other faced with In addition to the errors raised arising eases under defendants, similar Ray circumstances cross-appeals Dr. Kessel have, hesitation, permitted punitive without the circuit court’s decision to direct a verdict damages against to be “helpful” assessed in favor of the defendants respect to his family wrongfully member found to have in claims for intentional infliction of emotional complaining terfered with the parent’s par distress; deprivation intentional right of his See, relationship. ent-child e.g., Fenslage v. grandson, to visitation Baby Boy with his Dawkins, (5th fraud; F.2d Conaty; Cir. and tortious interference 1980) (upholding, law, punitive under Texas grandparental relationship with his damages against paternal award grandpar grandson. argues Dr. Kessel that the circuit ents, paternal uncle, paternal aunt); erroneously determined that his limited Kajtazi Kajtazi 15,19-20, F.Supp. 21- grandparent as a support would (E.D.N.Y.1978) (finding punitive damages prosecution the further of his claims. against paternal award grandfather pa support of his contention that he should have Having grounds, resolved this issue on other dence at posi- trial of the defendants’ financial complaint we decline to address they allegedly John’s that he comply tion because refused to effectively precluded was introducing pre-trial discovery requests. evi- with his financial right look what present his claims to When we at permitted to been 48-2B-1, Ray time visitation for Kessel of the jury, cites W. Va.Code Dr. Kessel case, alleged in this tortuous conduct grandparent’s [sic] seq., which sets forth et Ray statutory right Kessel had no to visi- grandchild. He con- rights vis-a-vis his/her that, case, Ray ... I tation. find that, because his son John tends further fact, Kessel, cannot maintain cause Baby permitted him to visit with would defendants, against any of action Boy Conaty custody if John had had because at time the tortuous [sic] child, permitted to hold Dr. Kessel should be case, alleged conduct in this he had no for their interfer- the accountable defendants statutory right. is to opposed That his son expectation grandparental of a ence with clearly where our court has said —and [sic] relationship grandson. with his began early biolog- that in the a ’70s—that because John The defendants counter that parent right in a ical fact has constitutional action, valid the has failed to state a cause deprived parental right to of a be Kessel, Dr. which are claims of based appropriate without notice and some dué claims, They similarly John’s are invalid. hearing. being process That In Re: Wil- adopt ruling find- further the circuit court’s lis, a [157 1973 case. W.Va. that, Dr. has no grandfather, as a Kessel (1973).] S.E.2d against them. for a cause of action basis grant So Court the motion of the would plaintiff the defense as to the claims of the circuit cross-appeal This arises from the Ray Kessel.... entry in favor of court’s of a directed verdict defendants, Kessel’s the which dismissed Dr. 50(a) Virginia Rule of West the the against regard, In this claims them. permits party Rules of a to Civil Procedure court, upon the of John’s circuit conclusion move for a verdict. When a defen directed trial, had case the evidence that evaluated motion, such a a circuit court dant makes presented and determined: been in a the defendant’s should direct verdict “ evidence, plaintiffs if ‘the considered favor grandparents’ The statute in effect for him, light the most to fails to in favorable five at the time of this incident is visitation ” recoveryf.]’ right prima a to facie .establish “Upon a petition [sic] the verified lines. part, Riffle, Syl. pt. Brannon v. parent seeking of a child visita- deceased (quoting Syl. 475 S.E.2d 97 rights grandchildren peti- with the tion Gale, 3, in rel. pt. part, Roberts ex Roberts tioner, may order the [sic] the Court (1964)). 149 W.Va. 139 S.E.2d 272 grandparent [sic] shall have reasonable regard, “every legitimate reasonable rights said visitation seasonable fairly arising testimony, from the inference grandchild grandchildren as the Court entirety, in considered in its must be when may proper deem in the best interest [sic] favorably the dulged plaintiff; to court [W. of the child or children.” Va.Code as those which the must assume true facts (Repl.Vol.1986).] 48-2B-1 jury may under evidence.” properly find the Brannon,

Syl. pt. part, (internal quotations and cita S.E.2d 97 find rights [T]he Court would omitted). Upon appeal of a circuit tions Ray Kessel derive [sic] [has] Mr. verdict, entry apply a of directed court’s statutory law law. There is no common review: de novo standard of right grandparent have a historical relationship grandchild. appellate area The of review for the This standard evolving_ for a verdict granting [West The Vir- of motion directed of the law ginia pursuant 50 of the West Supreme] that the Rule [has] Court stated novo. relating to Rules of Civil Procedure is de On rights grandparents ... [sic], considering grandchildren expanding appeal, over this court after have been However, light past rights most favorable years. those evidence will sustain the rights party, the nonmovant limited in the main to of visita- are only when granting of a directed verdict tion. Nearhoof, one conclusion as to the reasonable verdict noted in Petition regard, can be But if reasonable In this reached. minds importance explained could and suffi- we that: differ as evidence, ciency of a circuit court’s parent custody A legal who has of his or ruling granting will a directed verdict be right her child has to determine when reversed. visit, may such child minor child, grandparents visited Brannon, Syl. pt. id. authority and a has no decree Examining proceedings record of the rights grandparent visitation to a where court, we find that before circuit rights agreed have not been directing err in lower court did not verdict parent. respect in favor of the defendants with to Dr. id. determined, Kessel’s claims. While we have above, presented that John valid causes of Enforcing grandparental ac- action, contrary arguments urged by 1980s, knowledged by legislature in the defendants, necessarily it does not court, follow this Court determined that trial “[a] Dr. that has stated a claim considering petition Kessel grandparent a of a granted. which relief can The circuit rights grandchild grand- visitation with a or primarily upon court based its decision VaCode, the pursuant children to W. 48-2- statutory rights accorded to grandparents 15(b)(1) ^[1986] or W. VaCode, 48-2B-1 underlying appeal. [1980], the time of the events paramount give shall consideration to (1980) § (Repl. W. 48-2B-1 Va.Code the grandchild grand- best interests of the or Vol.1986) permitted expressly grandparent a children involved.” Petition of request grandchild to visitation with a where 359 S.E.2d 587. Nearhoof grandchild’s parent, grandparent’s the the Despite relatively scope the narrow child, Likewise, own was deceased. W. Va. two securing above-referenced statutes a 2—15(b)(1)(1991) (Repl.Vol.1992) § Code grandparent’s right to visit with 48— his/her provided right grandparental for a limited of grandchild, we held in further that: Nearhoof grandchild’s parent, visitation the where the Upon petition grandparent, pur- the of a child, grandparent’s own had been named as VaCode, [1980], suant to W. 48-2B-1 seek- divorce, party separate maintenance, to a rights grandchild visitation with a or action, or annulment but whereabouts his/her grandchildren, who is or the child are the were unknown or had otherwise failed he/she the grandparent’s children of deceased answer, appear, or such defend action. child, a trial court order that the Beyond scenarios, very specific these two grandparent shall have reasonable however, grandparent definitely had no rights visitation grand- seasonable with the expressed statutory rights to either form a grandchildren provided child or such visi- relationship grandchild or to his/her grand- tation is in best of interest previously continue a established relation- grandchildren involved, child or even ship. grandchild though grandchildren or adopted spouse has or have been of Turning judicially recognized rights spouse. the deceased child’s former grandparents in existence at the time of the events, underlying slight- Syl. pt. 2, we § are faced with a But id. see W. Va.Code 48^- broader, narrow, 11(a) (1984) ly scope (Repl.Vol.1996) still (directing, albeit per- grandparental rights. legislative part, “[u]pon entry Prior to the tinent such statutory request right creation adoption, any person visita- order of previously en- grandchild tion with one’s parental rights titled to ... “[a] and the lineal or grandparent legal right ha[d] who no parent to cus- collateral person, kindred tody grandchild of his or legal parents ha[d] her no or legal ... shall be of all divested right rights” child, to visit respect adopted and communicate with such to the grandchild parents’ objection.” Syl. thereby over the suggesting, light Nearhoof Boothe, pt. adoption Brotherton of a child one is not who (1978), superseded by 250 S.E.2d 36 statute step-parent child’s would divest child’s circumstances, inability e.g., pro- statutory various visitation grandparent his/her care, neglectful rights). appropriate abusive or vide behavior, like. years, recognized rights In recent expand continued to grandparents have Likewise, Virginia judiciary, the West fol- judicial through statutory definition and both trend, lowing Legislature’s has continued interpretation. Today, West statu- recognize expanding rights accorded tory permits grandparent law to seek visi- recently, Syllabus grandparents. Most child, only own tation not when his/her B., Jimmy S. v. point of Elmer Kenneth deceased, parent, see grandchild’s is W. Va. (1997), 483 S.E.2d 846 (1992) (Repl.Vol.1996), § 48-2B-4 but Code recognized that: grandparent’s child has not also where annulment, divorce, appeared or defended § seq. W. et affords Va.Code 48-2B-1 action, separate see maintenance W. Va. or jurisdiction circuit to consider courts (Repl.Vol.1996); § 48-2B-2 Code grandparent visitation under the limited grandparent’s own child aban- where has therein, provided even circumstances abrogated visitation doned his/her though parental rights the parent judicial preclusion of such or there exists through grandparent whom the related § rights, visitation see W. Va.Code 48-2B-3 grandchildren grandchild grandchild (Repl.Vol.1996); when the Generally, those circum- been terminated. previously grandparent with the has resided stances, contemplated by W. Va.Code seeking visitation for at least six months (1992) (Repl.Vol.1996), 48-2B-2 -6 preceding years, see W. two Va.Code separate are: divorce or mainte- where (1992) (Repl.Vol.1996); § 48-2B-5 and where parent nance ordered and the has not is married, grandchild’s parents see the are not (2) etc.; upon appeared, abandonment or (1992) § (Repl.Vol. W. 48-2B-6 Va.Code abrogation rights by the visitation 1996). majority In the of these circum- judicial preclusion grandchild’s parent or stances, though, grandparent the derives his/ (3) visitation; parent when the of such child, rights through the her own his/her through grandparent is whom the related subject parent grandchild. of the Additional- (4) deceased; the has is when minor child ly, possible rights visitation each instance of grandparent the for six con- resided with fulfillment of numer- is conditioned the past more within the secutive months or prerequisites. ous years; and under certain circum- two pertain statutory to As these amendments the are parents the child stances when ease, apparent is that Dr. Kes- the instant it unwed.... today might grandparental his sel enforce Court, addition, adopted the In this 48-2B-6, § rights under W. which Va.Code of Procedure for Child West Rules “[gjrandparent permits [the visitation where Neglect Proceedings, Rule 15 of Abuse and grandchild’s] parents unwed.”107 How- [are] scope visi- grandparent which defines the ever, Dr. success under even this Kessel’s neglect and tation in the context of abuse questionable given ambigu- the provision is R.P. for Child proceedings. See also W. Va. requirement parent “[t]he ous (accom- n. 1 Neglect Proceedings Abuse & grandparent through minor child whom 15) (same). Nevertheless, it panying Rule precluded court order from is related is rights grandpar- appears while “[t]he ...,” minor child W. Va. visitation relating grandchildren to have been ex- 48-2B-6(a)(2), ents § it is unclear since Code years, ... past twenty panding over judicial preclusion via termination whether rights to rights main those are limited rights adoption to parental satis- incident rel. Allen B. State ex David element, of visitation.” or whether this criterion fies this Sommerville, 86, 90, 459 S.E.2d parental contemplates preservation Even under the rubric rights of visitation due but denial 1996) following though, the Canadian emphasize, the finalization of that Dr. Kessel 107. We adoption of John’s essentially and the attendant termination powerless seek actual visitation un- rights. (Repl.Vol. parental der W. Va.Code 48-2B-6 expanded grandparents’ rights, respect visitation verdict for the defendants to Dr. statutory judicial though, protec- such and Kessel’s claims. guarantee “in

tions are no measure a III. Mary Jean H. v. Pame- right to visitation.” R., Kay la CONCLUSION curiam). (per . Throughout our review of the of this facts scope Despite grandpar- increased helped case and the various authorities which rights decision, ents’ visitation recent shape contained ap- our we have come to law, statutory expand preciate we cannot problems plaguing gen- common the real recognition parent’s process by adoptions our eral this ease of which are com- menced and cause of action for interference with consummated.111 As evidenced his/her appeal, frequently parental rights encompass alleged instant at odds are inter- competing biological interests of the grandparental rights ference with one’s as mother, promptly who wishes to secure an urged Dr. arguments Kessel. be- child; appropriate biologi- home for her Court, fore Dr. Kessel does not cite father, cal may hope participate who in his authority permitting grandparent to main- upbringing; adoptive child’s parents, who tain a cause of action tortious interfer- adoption that, procedure desire an emotional rights and, grandparental ence with his/her be, though may quick painless is as as fact, has conceded claim is possible; child, who is entitled to live Likewise, unprecedented. novel and we can stable, loving, in a caring environment. authority support recognition locate no Unfortunately, child, though, the in- whose Although, such a cause of action.108 paramount, terests should often is the above, discussed State has broadened parents’ conflicting innocent victim of his/her grandparents’ rights, the realm of when com- interests. pared rights par- with the accorded child’s ents, grandparents’ rights receiving promi- continue to be Several cases national Accordingly, rather limited.109 we are reluc- involving trampling, nence and or unin- expand tant grandparental to ignorance, a tentional biological of a father’s previously rights manner that has not wrenching been contem- have resulted in the of chil- plated by either families, this Court or the West dren adoptive particu- Vir- from their a ginia Therefore, Legislature.110 larly we find that young traumatic event a for child who the directing circuit court did not err in family has no regards known other and his/ 108.Indeed, grandfather our research indicates at least to recover for custodial interference one actually grand- grandchildren grandfather court has denied of with previ- the claim his where parents ously dren). granted alleging custody grandchil- had been sole interference with their relation- of Wood, ship grandchildren. Cage with their See v. (La.Ct.App.1986) 484 (rejecting grand- So.2d 850 parents’ grandparen- H.C.3., claim for interference with supra, 109. See Sections and II.B.l. for a relationship). tal also v. recognized See Renaud St. Law- parental rights. of discussion 710, County, 3, rence & 233 A.D.2d 711 n. 650 (1996) (noting N.Y.S.2d n. 3 368 & Though substantially broadening rights 110. the lower grandparents’ court dismissed claims of grandparents of grand- to with visit their minor declining custodial interference but to children, address Legislative 1998 to amendments appeal grandparents issue on statutes, because "elected grandparent visitation codified in W. proceed appeal”). not to (1998) with their Ellis v. §§ (Supp. Va.Code 48-2B-1 to 48-2B-12 Cf. Hamilton, (7th Cir.1982) 1998), 669 (denying F.2d apply 510 do not to resolution of the grandmother adoptive pro- relief on due appeal federal instant as these new laws were not in cess claim underlying because slate not effect at time remedies had been events. exhausted); Grubbs, adequately Mecke v. 278 (Tex.Civ.App.1954) S.W.2d 404 (denying grand- Assisting appreciation with our of these diffi- parents upon relief claim of with interference attending adoption culties are the numerous custody grandchild by of child’s father where during presenta- briefs filed Amici Curiae grandparents custody grandchild by had of appeal describing tion participants’ of this these agreement of father but record did not indicate varied interests in We this matter. wish to thank custody). that father was unfit have organizations But these for their concerns and con- cf. Bayer, Clark (permitting 32 St. Ohio tributions toward the resolution of this case. father, “grasped opportunity,” comparative strang who has biological father as a her See, B.G.C., child, relationship with his and e.g., re 496 N.W.2d 239 establish a In er. 1992) Clausen, (Iowa limited, In re Mich. corresponding, right albeit curiam) (per 502 N.W.2d biological child fa to associate with his/her Doe, (case Jessica”); “Baby In re See, of B.G.S., e.g., Adoption ther. re Ill.Dec. 638 N.E.2d 181 (“[A] Ill.2d (La.1990) parent So.2d has Kirchner, Ill.2d In re biological his ... a right natural child and (1995) (case Ill.Dec. 649 N.E.2d 324 right parent.” child likewise has a Richard”). Evans, “Baby See also Julie (citations omitted)). hope by our deci We Child,” Our Woman’s “Please Don’t Take would un sion to deter future conduct that Hansen, 83; at Mark Day, Mar. fairly inequitably infringe as Heart, Nov., 1994, J., Fears A.B.A. rights. sociational Burnside, Honaker v. 58. Cf. Finally, though consequence to our of no (1989) (recognizing that child 388 S.E.2d 322 appeal, we final are mindful resolution strong relationship with her had familial prophylactic today’s decision half-brother, effect returning stepfather and but undoubtedly respect will custody biological her father fol child to mother). subject biological adop- lowing child death of her of a who is Through greater respect proceedings. tion appeal, though precisely a The instant biological biological fa- mother’s and nature, compet- also ease of involves rights, hope achieve parental ther’s ing parents, the child’s but incor- interests of rights, greater the child’s consideration of porates an element as well: the additional enjoy prompt both to resolution of conflict- intercountry adop- placement of a child pre- {e.g., custodial claims child’s reasons, placed Anne tion. For whatever fa- adoptive parents biological and his/her Baby Boy Conaty adoption. into Canada for ther), opportunity be assured of the and to facts not those of an isolated oc- These are father, biological if he associate his/her Rather, suggested it has been currence. in es- has a sufficient interest demonstrated intercountry placements are in- that such maintaining parent-child re- tablishing and creasingly as a which to common method arrangement if is in lationship and such an parental rights. a biological father’s thwart See, e.g., State Maravel, best interests. child’s Intercountry Adop- Alexandra See Resources, Child Dep’t Health & Human Flight From Unwed Fathers’ tion Rights: Right Anyway?, Pentasuglia, ex Advocate rel. Cline Whose 48 S.C. Office 644, 647 L.Rev. 497 (“ a ‘The child also has fundamental today’s appropri- not an While decision is mother, right, by establish not shared to repair ate forum in which to dissect and all of relationship, in exercis- and father-child of-existing adoption procedures, the ailments clearly potential is right there which, fact, in to have been remedied some and mother’s interest conflict between the legislative degree amendments various ” (quoting Common- child’s interest.’ underlying subsequent to the facts enacted Serv., wealth, Div. Child Dep’t Social case,112 redress, of been in of we have able to this Gray v. John- Support ex rel. deprivation biologi- of a part, the intentional Enforcement son, 791 Va.App. 376 S.E.2d 7 relationship right to a cal father’s establish (1989)) (footnote omitted)); In the Interest decision, By today’s we do his child. of with L.E., 113, 121, 394 183 W.Va. Brandon a haphazardly upon intend intrude not (1990) (“A 515, 523 child has S.E.2d her biological right preg- to conduct mother’s too, of a constitutional she, herself, of which are some in nancy in manner which (internal magnitude.”) quotations and cita- Nevertheless, recognize chooses. omitted). importance biological tions equal right of 37, discussing legisla- nia supra recent and California. See note Virgi- adoption laws in West tive amendments 200 every expressed body parent relationship

For in the the reasons to a with his or her opinion, order of the child. impor this the final Circuit That is not law but it new is County, upholding jury clearly. Court of tant that it be Cabell reiterated The Unit underlying Supreme trial ed verdict rendered in the this States held in Court Lehr v. Robertson, appeal, hereby is affirmed. 103 S.Ct. U.S. L.Ed.2d 614 “[w]hen an unwed

Affirmed. father full demonstrates a commitment to the responsibilities parenthood by ‘com[ing] sitting by Retired Justice McHUGH participate rearing forward to in the temporary his assignment. child,’ personal his interest in contact with participating. Justice McCUSKEY acquires protection his child un substantial Justice, WORKMAN, concurring, part, in 261, 103 der the Due Process Id. at Clause.” dissenting, part: (citation omitted). Similarly, S.Ct. 2985 Virginia, West this has held that Court only This case our attention not focuses State’s Due Process Clause extends “sub upon law, issues new and novel but a protection” stantial an “unwed father tragedy compelling human well. It is [who] demonstrates a full commitment to the family great personal about a faced with responsibilities parenthood coming for dilemma and the difficult choices that were participate ward to rearing in the of his legal system made. It is also about that is child.” part, State ex Roy rel. ill-equipped bring to sort out resolution Stone, Allen S. v. 196 W.Va. S.E.2d complex human and moral it issues We have also enunciated the increasing frequency being required to right parent-child relationship in the address. right. D., context of the In re child’s Brian mini-series, It could be a television and the (1995); In re script-writer skillful make could L., Christina S.E.2d 692 parties extremely empathetic characters (1995); Burnside, Honaker v. system, our heartless villains. Under (recognizing S.E.2d 322 a child’s average people left to a of six to make right to continued association with one with review, judgments legal we now under bond); whom there is an emotional see also competent given by instructions G., In re Jonathan 198W.Va. thoughtful many judge, governing new issues (1996) (recognizing right child’s in some previously presented never Virginia, West circumstances to continued association with eases, or in some in the even United States. parents). foster But with exception the California law- yer I supreme majority’s whose concur holding own state court found his also with the that, “immoral, preserve conduct in repre- parental to be “to case his interest vis-a- hensible, dishonest,”1 child, there are no vis his biological real newborn an unwed is, however, must, villains learning here. There father of the existence $7.85 million judgment facing family; child, one a man his demonstrate commitment son; who legal never see his responsibilities parenthood difficult assume the easy resolution; capable issues not coming care, participate and a forward long-range rearing, dissertation of 'will have law that support by and his newborn of child implications commencing on future meaningful situations. to par- establish relationship enUchild his child.”

I on thorough commend Justice Davis lengthy dissent, and opinion. completion however, Its obvious- I in several signifi- other ly involved an amount of respects: immense research cant and a fairly to conscientious effort consider The numerous instructional errors that the

numerous difficult issues. majority concludes were made are so sub-

I concur majority whole-heartedly with the stantial and cumulatively they that numerous ringing pronouncement its rights of the must unfairly prejudicial of be considered so Leavitt, (Cal. 1. Cal.Rptr.2d Kessel v. Ct.App.1998). parents. despite validity the ex Anne her the fact that of the justify retrial for and

to injunc- parte injunction, no of violation such not Only errors are determined where trial proof tion found on could be until service case and the merits of the to have affected personal appearance Anne the or her before prejudiced appellants the should to have not majority court shown. The takes the was be determined to be harmless. such error view that no error occurred because the trial Appeal Jurisprudence, and IB See Michie’s effect, silent, by giving remained signifi- § 285 Given both the Error way an instruction one or the other on this errors as cance of individual instructional instructed, jury the issue. Since was howev- error,2 it as the cumulative effect of such well er, injunction valid, that the was the issue jury’s that in this case appears the verdict jury again once becomes whether the could may by likely affected such incor- have been placed emphasis perceived have undue on the law. rect instructions of injunction. the The violation of nuances Although and instruc- extensive detailed jurisdiction clearly within service and are not require- given concerning were the tions juror’s average experience. the realm of Un- UCCJA,3 the ments of both the ICPC and majority, like the I find the failure advising jury the that these statutes and judge given trial to have this instruction here, majority applied to facts the cor- error, constitute least when reversible rectly neither of these two concludes that cumulatively with the other instruc- viewed compacts applicable the instant were case tional errors. and that such instructions were therefore Furthermore, majority determined erroneously given. empha- the central Since governing that issue of the instructions providing of these acts is for the sis two whether the defendants violated due John’s and best interest of children and

welfare process equal protections rights were requirements presented their were because unsupported by any applicable con- law and detail, certainly likely great it is that the trial stituted an abuse of the court’s discre- again, majority tion. jury provisions could looked to the Here concluded addressing that the use instructions John’s determining guidance acts for liabili- these equal protection rights process due' damages. Any ty assessing determina- unsupported which were law constituted liability made with reference to the tion was “rela- harmless error because such error inapplicable provisions of these laws would minimal,” tively An disagree. I must simply say, error. To constitute reversible presented inconsistency was obvious does, majority as the that because overall judge jury by virtue of fact that the trial jury charge lengthy no was there is reason to jury had separately that Anne instructed emphasis' jury placed believe undue notify adoption and duty no on such erroneous instructions law is instruction, process by giving then the due jury short-sighted. left If the with an simultaneously the trial court instructed legal impression overall directives jury rights as an unwed father that John’s required procedural both delineated and adop- right include “a to notice of case, compliance under the facts of opportunity an tion of that child and jury’s verdict could stands to reason that parental prior heard termination improper have been affected instruc- rights Especially given the to that child.” tions. jury apparently fact took Another to which the instructional error during delibera- instructions them their majority only significance tions, attaches minor regarding this incorrect statement give likely the failure of the trial court to concerns of John’s constitutional violation reached. Appellants regard- instruction contributed verdict offered Syl. were Pt. Tennant v. Marion Health Care much less onerous than those instructive See Foundation, Inc., 459 S.E.2d 374 not the that instructions did ICPC in the UCCJA (1995) (applying cumulative error doctrine to specific indicating any that contain instructions cases). civil ap- provisions these to be court determined controversy.” plicable parties’ to jury majority 3. The observes that "the instruc- given respect the UCCJA were tions with majority acknowledges The that no other structional error should be the basis for re- jurisdiction recognized liability has “a claim trial of the respect based in issues with relatives.5 sounding tort fraud in circumstances

fairly analogous underlying to those the in Furthermore, although enjoyed John sub- appeal” suggests pressing stant need to rights child, stantial respect with to his closely parameters examine the of a cause of although the right defendants had no to en- predicated principles action on of fraud un gage in affirmative conduct to violate those der Appellants rights, the facts of this case. they stress any fiduciary neither did have legal obligation engage that fraud based on other concealment or silence in affirma- protect tive acts to proven rights. or ensure his duty cannot be absent a to disclose. Furthermore, majority acknowledges Auth., See Sabet v. Eastern Medical only that fraud can (4th established with re- 1266, 1270 Cir.1985). 775 F.2d on Based gard to acts or omissions committed subse- case, Appellants the facts of arg-ue that quent to the birth of the child. When the identify any duty John cannot to disclose that record in this case is scrutinized for affirma- they issue, in turn Appel violated. On this part tive acts on the parents of Anne’s lants had the jury trial court instruct the fraud, could constitute all that can even be obligated Anne was not keep plain “to suggested they is that may have known the tiffs apprised or either of them of her where they whereabouts of Anne when were de- abouts; progress pregnancy of her or to posed, although there proof has been no provide any them with information concern this, they and that may have known the ing the addition, birth of her child.” In Canadian adoptive parents, residence of the Appellants emphasize that no order was ever again but proof there was no of this. Even if entered the circuit court which would theory properly of fraud applies to a case required Anne to reveal this informa one, such as this presented the evidence tion. Appellants’ instruction, Based on regard trial parents to Anne’s does not trial court jury also instructed the that Anne they any demonstrate that alleged violated duty provide did not have a notice to John duty of Similarly, disclosure. while the evi- regarding adoption itself. certainly dence demonstrates that Anne Furthermore, majority very states knew looking John was for her and that she clearly rights that the plaintiff of the move, father kept on although a reasonable began Thus, at the moment of birth. pre- trier of fact could conclude that she was purposely him, birth obviously evading conduct could not be nothing the basis there is our places an law that damages. However, upon award of civil duty her keep apprised of her jury permitted whereabouts. was to hear a massive amount regarding pre-birth evidence conduct of all Finally, the enunciation for the first time Although defendants. such evidence availability this context of the of the affir- might be proper admissible with a limiting- justification mative defense of for Anne and (to mind), instruction parents show motive or her state of seems to dictate that this matter limiting no such should they be retried so given. might instruction was avail Thus, they all themselves of such if of this defense so evidence was choose.6 heard proper legal without instruction with As courts are called with ever-in- respect proper purposes for which creasing frequency to resolve difficult social they could consider the evidence.4 Cumula- issues, and moral I wish to strike a caution- tively, such together evidence ary in- questions note. These are of immense Although ordinarily party 4. Leavitt, however, if does not against lawyer raise an 6.The verdict error, waived, instructional retrial, then it is deemed subject would not be to such since he did parties again here the once did not have post appeal appeal an bond and his was majority's benefit holding that John's Furthermore, therefore dismissed. because begin did not until the time the child was there is a far more substantial amount of evi- born. brother, Brian, against dence inability Anne’s his justification to utilize the defense of does not Lawyer bond, post Leavitt appeal appear did not enough to be a substantial error to war- dismissed, appeal thus his compared verdict rant retrial when weight final. against evidence him. capable easy are not of magnitude moral

answers, susceptible applica- to the facile very of rules. Courts must

tion clear-cut

carefully call- new causes action scrutinize personal difficult decisions question into family the role of beings

human face and I am in those decisions. troubled

loved ones

that, conclusions are made on whatever basis,

legal or as to conduct of moral individuals, Anne —and

these two Annes are still

all other Johns and there family of such

to come—that members perma- at risk put themselves

individuals human

nent financial ruin because may give. judges, As must

support they only legal

to some look not at the extent situations,

issues in these but also inherent

figuratively put into the human ourselves litigants. This is in

shoes observation way denigrate obligation

no intended to any person society speak in our truth-

fully pro- placed under oath a court when

ceeding, opinion separate has care- and this

fully objection majority’s any excluded system cannot counte-

conclusion that our un- perjury perjury

nance or subornation Cases like instant

der circumstance. require will more wisdom

one continue possess; thus we tread

than we mortals must

carefully parameters enunciating the contemplate action and

these new causes of

fully rulings our in the implications of yet

many to arise. diverse factual situations Virginia, Appellee,

STATE of West MILBURN, Appellant.

Barbara Jean

No. 25006. Appeals

Supreme Court Virginia.

West Sept. 1998.

Submitted Dec.

Decided Davis,

Dissenting Opinion of Chief Justice 16, 1998.

Dec. notes “act[s] that he as a father be said Court, echoing pronouncement in Id., This his children.” at n. toward Court, Supreme States S.Ct., 7[, L.Ed.2d, United likewise n. at n. 7], biological has identified unwed father’s biological But the mere existence of a establishing relationship equivalent interest his link does not merit constitution protection.... importance al child: “[T]he relationship, the familial to the individuals Although biological an unwed father’s society, involved and to the stems from the not, itself, link to his child does in and of that derive emotional attachments guarantee him a constitutional stake his association, intimacy daily and from child, relationship with that such a link plays ‘promot[ing] way role parent-child combined with a substantial through life’ the instruction of children ... relationship will do so. When an unwed from the fact of relation well as blood father a full demonstrates commitment to ship.” Organization Foster Smith responsibilities parenthood by com Reform, Equality Families participate in rearing forward to 2094, 2109-2110, [97 U.S. S.Ct. child, personal his interest contact (quoting 35] L.Ed.2d Wisconsin acquires protec with his child substantial Yoder, 205, 231-233[, 92 S.Ct. U.S. tion under the Due Process Clause Sec 1526, 1541-1542, 15, 34-35] 32 L.Ed.2d tion 10 of Article III of the West (1972)). Constitution.[27] significance biological The connec- Stone, Roy State ex rel. Allen v.S. tion is that it offers the natural father an

Notes

notes that the is not the able to parent.”). child; company of this cause of action his/her 137 (2) service, deprived right, custody effectively the mother parent’s or of from the enticing harboring inestimable, or of which [was] the elemental and value [that] willful, she, enticing too, Cal.App.2d [that the 221 34 [and] had.” at harboring was with notice or Cal.Rptr. Though declining done] at 481. to defini- parent the had a knowledge that child tively propriety rule as the of the claim thereby invaded.” father, whose were against the did asserted the Court find, circumstances, the fa- given the Id., (quoting at 790 67A 672 So.2d C.J.S. (addi- impermissibly infringed upon ther’s (1978)) actions 131, p. § at Parent & Child 513 parental rights. omitted). the mother’s and custodial also Marshak v. citation See tional Marshak, A.2d 964 226 Conn. 628 legal wrong that it was a for We believe for (refusing to allow mother’s claim tortious the with husband and father abscond relationship, interference with custodial child, respondent [grandfa- the and that joint legal and father had cus- where mother damages for would liable even ther] alleged tody of at time of interfer- children actions, conspiracy if the father’s were (Second) ence, upon based Restatement of course, every transporta- Of not shown. (1976)); Murphy v. 700 cmt. c I.S.K. Torts parent causing the tion of a child one Inc., Mass. England, Con. New of parent custody of other some loss (1991) (emphasizing impor- 571 N.E.2d 340 wrong- with association the child would be parent’s consent to child’s tance of lack of If, however, away parent ful. one makes parent’s and enumerat- absence from home effectually offspring, with the removes it to consider this re- criteria for control, it, judicial conceals Vokolek, Kipper 546 S.W.2d gard); v. utterly parent the other bereft leaves (discussing particular (Mo.App.1977) 525-26 enjoying privileges the means of of the for comprising tort claim interfer- elements folly say the parenthood, it is parental relationship). ence with or custodial merely parent exercising his decamping case, different the Califor- In somewhat right” custody child. “equal the of the Appeal reviewed the nia District Court equality no it. There is about permitting cause of action for rationale Id., Cal.App.2d Cal.Rptr. at parental with tortious interference custo- appropri- relationship enunciating the dial a claim. ate context for such Rosefield Similarly, Engel, the court Plante v. Cal.App.2d Cal.Rptr. Rosefield, 221 the its supporting rationale focused (1963). the The case arose in context adoption a cause of action for tortious proceedings. sepa- Since the date divorce rela- parental with or custodial interference ration, custody the had of the mother had N.H. A.2d tionship. 124 During parties’ pendency child. Plante, In had com- mother father shortly custody was proceedings and before conjunction an action for divorce. menced mother, father, with to be awarded to proceedings, the father was with these (the grandfa- help paternal of his father The custody parties’ child. awarded ther), took the child from the mother and thereafter, custody in violation of the mother her. whereabouts from At concealed his father, telling the took the order and without case, court heard this appellate time the parties’ when she moved child her yet had been located. father and child not against Upholding father’s claim Texas. interfering grandparents the maternal Reviewing the mother’s claim tortious child, custody right to of his paternal grandfa- with his against interference Hampshire its ther,45 Supreme of New based Court noted that Court “[t]he Rosefield decision, respect large deep part, on party [grandfather], as actions the third custody of parent’s right to the simply gain father accorded a alleged, help did not child, stranger, custody but child. from a his/her Cal.Rptr. Cal.App.2d that the child’s father had 45. The Court noted process been and therefore not served Rosefield, party appeal. Rosefield

Case Details

Case Name: Kessel v. Leavitt

Court Name: West Virginia Supreme Court

Date Published: Jul 22, 1998

Citation: 511 S.E.2d 720

Docket Number: 23557

Court Abbreviation: W. Va.