*1 465 S.E.2d L.H., Plaintiff
STEPHEN
Below, Appellee, L.H., Defendant
SHERRY
Below, Appellant. 22084.
No. Appeals
Supreme Court Virginia.
West Jan. 1995.
Submitted
Decided March Neely
Dissenting Opinion of Chief Justice 8,1995.
March
Concurring Opinion of Justice Workman 24,1995.
July *3 George A. Daugherty and W.
Suzanne Elkview, Appellee. Daugherty, for L.C., Reed, Miller, L. Miller & Steven Lanes, Appellant. for Cross CLECKLEY, Justice: case is whether primary issue employed correct stan- circuit court its own find- of review when it entered dard law that were ings fact and conclusions of family law master. contrary to those of the appropriate provide the case The facts of fully develop more opportunity to discuss a circuit court must the standard of review reviewing findings and ultimate apply in of a law master. decision I.
JURISDICTION aspects Because there are still court, pending in the circuit we first case juris sponte whether we have examine sua W.Va.Code, appeal. diction over this Under (1925), juris- appellate this Court has 58-5-1 remand, judgment over final decisions and or- circuit court should reconsider diction recently attorney by a circuit court. We the issue of fees. ders issued judgment” contemplated a “final defined
by this statute as decision ends II. nothing litigation on the merits and leaves the circuit court to do but execute the BACKGROUND Syl. Carolyn judgment. pt. James M.B. v.
M.,
193 W.Va.
voluminous fam- record before the decision to over The circuit court’s ily law master has been extensive. This *4 findings turn the of the law master record, Court has examined the entire includ- ongoing big part indeed a of the child was ing videotapes containing portions of the proceedings, but the court never visitation hearings and interviews attorney addressed the issue of fees that witnesses, parties. the child and briefs of the being sought also the defendant Stephen Sherry The record reveals H. and herein, appellant Sherry H.1 This below and August H. in Their were married context, however, automatically does not di daughters Ashley Chelsey were born in jurisdiction. Although vest us of this Court 1988,respec- December of 1985 March rule, strictly applied judgment” has the “final tively. Sherry H. marital moved out of the have stated that if we can determine from we 1988, daughters with in home her meant to the record what the do parties in were divorced June of 1989. reasons, record and its sufficient In permit appeal proceed. caretaker, H., Sherry primary context, the intention of the circuit court is custody granted of the children. It is undis- controlling. Vaughn Explo See v. Mobil Oil puted Stephen that she allowed H. liberal Southeast, Inc., Producing ration and 891 privileges beyond granted visitation those in (5th Cir.1990). addressing F.2d 1195 Apparently, for vindictive divorce order. finality requirement, v. we said Strahin reasons, Stephen H. on some occasions did Lantz, 285,286 1,456 12, 193 n. W.Va. S.E.2d advantage not take of the scheduled weekend (1995), adopt practical interpre 13 n. 1 “we Notwithstanding visits with the children. of the cir tation that looks to the intention incidents, appears these the visitation ar- court.” cuit rangements were amicable. It that the circuit court felt the is obvious described the chil- Numerous witnesses attorney moot when aside fee issue was it set happy girls intelligent who were dren as little findings law master’s and entered Ashley ages. was characterized as their plaintiff below its own favor truthful; no witness testified that she herein, appellee Stephen H. From this prone a lie. to fabricate perspective, ruling the circuit court of. 1989, girls spent settling During the summer of can be viewed as all issues of the Stephen H. It was after this proceedings. Specifically, we find review of week Sherry Ashley complained first appropriate, the circuit court’s order is as it visit that daddy pulled underpants dispose of the entire H. that her had her appears it intended to Accordingly, question inappropriately touched her. Ash- case. the order down and final, appellate jurisdic- ley the touch to her mother and this Court has demonstrated Sherry H. pointing vagina. to her talked tion. Because we have decided to reverse daughter happened, about what had judgment of the circuit court and rein- with her Sherry immediately. act H. told findings, upon master’s but did not state the W., 710, Randolph 464 practice v. 177 W.Va. 356 S.E.2d 1. We follow our traditional in cases (1987); Virginia Dept. do not use the West Human Services which involve sensitive facts and C.L., parties stigmatize 175 W.Va. as not to La Rea Ann S.E.2d last names of so See, e.g., Nancy or their children. Viola R. them sister, B., required by medi- treatment Barbara that she was afraid birth her girls. fully, sexually to mature and this treatment Stephen H. had abused cation Ashley causing During period, time also out a factor this same could not be ruled told her relayed to Barbara B. what she slight deviation.
mother. Ashley interviewed on Octo- Ms. Rockwell
Sherry girls’ physi- 1990; 1990; to ask the planned H. Novem- ber October cian, Kelly, suspicions Dr. about John her 1990; videotaped ber an interview Kelly Dr. during appointment. their next 1990. Anatomi- conducted November Ashley physi- No examined June of 1989. Ashley help were used to cally correct dolls found, but Dr. cal evidence of abuse was Ashley, explain what she remembered. Kelly Sherry H. should informed that she legs, her dem- pointing to the area between psychologist if she consult with a child sus- where she was onstrated Ms. Rockwell pected Sherry pur- H. child failed abuse. touched her father. She indicated no any following until the sue the matter further her in one other than her father had touched summer. body. Ashley area of also said her her Chelsey way, father touched same *5 1990, Ashley’s behavior In the summer in this event occurred the bedroom his very changed significantly. She was reluc- Ms. Rockwell testified that based on house. go began having to her father and tant with interviews, Ashley she believed both these Sherry arranged Ashley H. for nightmares. Chelsey by sexually and Ste- abused psychologist, to a Linda Work- talk clinical phen H. Rockwell further testified it Ms. Ashley man. Ms. Workman met with on impossible four-year-old was a believe 1990; 19, 1990; August Septem- July and allegations. would fabricate these 19, 1990, Ashley Chelsey ber and with August together on 1990. After these Ashley Sherry partic- H. testified that was interviews, Sherry Workman notified H. Ms. ularly go during reluctant to with her father Ashley being was truthful that believed she Thanksgiving day- 1990. visitation of Two by had been molested her father. Based they care workers testified were unaware of information, Sherry petitioned on H. for time, allegations they the abuse at that but visitation. modification of significant changes girls’ in both the noticed Thanksgiving behavior after the with visit 20, 1990, hearing At the September before Ashley Stephen H. from her was withdrawn master, Stephen H.’s motion peers, uncharacteristically physically became by indepen- for the children to be examined abusive, day- by be held wanted experts granted. suggested dent was He Chelsey care workers. cried and wanted to arranged experts and for the with interviews day-care be work- rocked and soothed Preville, Dr. Kathleen Assistant Professor of girls up ers. The exhibited unusual behavior Pediatrics, Virginia University at West facility until in closed December Division, Rockwell, Pam Charleston a sexual abuse counselor. emphatically sexually Stephen H. denied abusing daughters. his He attributed their physical
Based a examination of the in change behavior to their examinations girls, Chelsey’s Dr. Preville testified ex- Dr. in Preville and Ms. Rockwell November amination was normal. The of Ash- He of 1990. believed it was abnormal for basically ley’s examination were inconclusive. young undergo vaginal such children Ashley’s hymenal opening larger was one Furthermore, examination. he believed that average size standard deviation than for sister, B., Sherry H. her age. Barbara her Dr. Preville testified that evi- Ashley saying coached into the abuse oc- digitalization. dence would be consistent However, examination, point, To on curred. illustrate this he described cross she admitted place ranges. an event that took the size still within normal Fur- December thermore, Ashley’s picked girls up labial tissues were fused when he his mother personality five Sherry take them for a visit. H. indicators of traits consistent car to his being pedophile. met an Exxon Station with sister them at 'a and her got girls into the Lanes. After the Cross During testimony, his Dr. cri- Gardner they road a car drove down the little tiqued videotaped interview of the chil- pinched Chelsey on
ways, playfully he Being performed by Ms. dren Rockwell. (It common him to do in a leg. highly Ms. critical of Rockwell’s interview monsters). fun-loving way and little call them techniques, leading nature of he stated However, funny Chelsey got this time look questions implanted image visual Ashley face and and said her looked Ashley reality Ms. that was not and that Sherry me.” “Daddy touched He stated subsequent questioning Rockwell’s reinforced H. and her sister have somehow convinced positive responses questions. to familiar them, any he touches the children time anatomically He her use of cor- characterized touch. is a bad rect dolls in the interviews as abuse sexual motives, questioned about his wife’s When and of themselves. Dr. Gardner believed responded very Stephen H. she was vindic- Ashley’s testimony by re- was contaminated person. against tive He admitted it would peated improper techniques interview pecuniary him Sherry H.’s interests see point longer she was no a credible wit- practice dentistry lose his license to be ness. charges. He also indicted on these admitted pre- Dr. he Gardner testified would have Sherry already H. had obtained full ferred to have met with the children and custody allega- these children before mother, Sherry H. sub- their but would not However, tions arose. he believed she *6 mit to an her children examination allow charges hopes he brought these that would opined to be Dr. Gardner that interviewed. petition February he drop the filed in Sherry “exclusionary maneuvers” H.’s requesting a reduction in the amount child way she her husband excluded the left and pay.2 he had to support paternal girls seeing grandmother from their Stephen expert H. called an witness on his and other and the fact she had been friends behalf, Gardner, psychiatrist Dr. Richard sexually as a child would militate abused University professor at Columbia Col- and toward a false or delusional accusation. Physicians lege Surgeons, Division of and Psychiatry. has written Child Dr. Gardner III. topic of
textbooks and articles on the child allegations. May sexual abuse At
1991, hearing, Dr. testified he Gardner inter- FAMILY FINDINGS LAW MASTER’S Stephen H. length, viewed reviewed the above, fami- hearing After the evidence transcripts of the who witnesses testified at ly findings law master issued of fact. hearings, analyzed videotaped the earlier fact, enumerating addition to girls, interview of the reviewed doctors’ were factual conclusions and “ultimate facts” case, reports and observed submitted findings. family law included in her testimony Sherry day H. on the he allegations Ashley’s master were true: found opined Dr. that on testified. Gardner based Ashley [H.] “2. The finds that review Court his extensive of the evidence in this told, telling truth when she first case, sexually was Stephen H. did not abuse Ash- [HJ, herein, mother, Sherry Chelsey. Stephen He that her Petitioner ley or also stated sister, [BJ, in twenty- then possess any of the some her mother’s Babs H. did Sherry petitioned recalculation of brought was a different fam- H. He for This matter before master, proceed- ily obligation and record of those of a in his in- his because reduction appears relevant, ings It is not available for review. parties Although did not come. required monthly pay- Stephen make H. was on the final resolution of offer evidence paid support $900 and he ments of for child also matter. per approximately payment $350 for a car month Ashley intelligent, mature [HJ scribed then continued and fall of summer age, truthful.” for her and July until her mother complaining to Lin- psychologist then later told and family law It the determination later to August da Workman Sherry a credible witness H. was master that 1990, that her in October Pam Rockwell Ashley making the into did not coach L.[H.], sexually father, mo- Stephen had allegations of abuse. While only regarding the al- finding is based not the evidence her. This master noted lested Sherry H. to credibility motivation of testimony leged of these financial upon the husband, she found falsely her former accuse fully described herein- witnesses as more persuasive.3 evidence more the rehabilitation below, testimony upon the of Peti- but also Furthermore, family law master found lay witnesses: Respondent’s tioner’s allegations pursuing these Sherry H. was not mother, Edith particularly Respondent’s improper motives.4 friends, [A.]; Nan- Respondent’s Steve and witnesses, [FJ; Respondent’s former cy expert found the Workman, Rockwell, Barbara ex-babysitters Donna testimony [H.] Ms. of Ms. whom, [DJ; [M.], having and convinc- Tom all of Dr. Preville to be credible however, observe, opinions, ing.5 de- Dr. Gardner’s ample opportunity to had professional opinion, finding Sherry the events assigning Workman's reasons for the 3.In occurred; credible, by Ashley actually had described law master found H. was furthermore, notwithstanding con- Petitioner’s allegations had financial motivation to that she cerns, daughters Stephen allowed her two charges against H. in- she still these fabricate accompany Respondent mother implica- and his aware of the because she was credible August the beach in of 1990 "allegations Edith [A.] these could result tions that significant sup- Ms. Workman’s evaluation was incom- amount of child because loss to her of a only legal plete; Ms. Workman’s third session port, and the after to mention extensive fees August Ashley Chelsey 22 at which lengthy litigation expense which has of this Also, happened Ashley in detail what had days described her to miss several of work.” caused expressed opinion allegation Workman her the other and Ms. law master found truth, Ashley telling file did Petitioner Sherry motivated to lie in order to H. was requesting Visita- daughters her Petition Modification of from visitation with their exclude her already tion^]” father was also not credible because she *7 custody daughters her and could had sole Stephen family 4. The law master observed that state if she wished relocate them in another agreed despite H. and all the other witnesses Stephen approval of H. Also as without the witnesses, friendships rela- of severed and strained baby-sitter evidence Stephen H. and his own family, Sherry [HJ, [A.], tionships ex- with his H. did not agreed, Edith Donna and his mother finally clude him from his children until after she frequent visitation than had allowed more she Ashley’s allegations of sexual came to believe required order and furthermore their divorce abuse. voluntarily agreed more extensive visita- had by Virginia tion than that recommended the West Department of Human Services in its visitation reviewing testimony, family the law mas- 5. the guidelines regard to children under three professional in Ms. Rockwell’s ter noted give years the father old in order to increased opinion Chelsey. overnight rights with visitation "Ashley telling the truth and that both [HJ significantly, family found Chelsey sexually More law master Ashley [HJ had been father, [H.,] Sherry credibility enhanced be- Stephen H.’s was further their L. ... abused incapable cause of this kind of that children four, daugh- age although "she at first did not want to believe her fabrication at ter, year taking any delayed suggestible, a series of lies with- for almost cannot sustain detection; worry alleged began that contact between an action until she because out changed sufficiently perpetrator and child victim can be coercive child’s behavior had to- truth; way Respondent Sherry the best to arrive at the and is not wards visitations with something to interview the child and began must have that the best test is to believe that [HJ experience training Only July rely upon of the happened. 1990 did she then on daughter evaluatorf.]” take her who was then four and one old, family Additionally, Lin- years psychologist, Linda law master found half Workman, to a clinical qualified psychologist initially engaged who da Workman to be "a who was accord- Ashley ample opportunity ing [HJ” had to observe to both Ms. Workman and Petitioner whether, expert testimony specifically was "credible and determine in Ms. and that her rily completes psychological treatment. The weight.6 given little family also recommended that law master family Stephen master outlined The law psychiatric Stephen payH. for the cost of the it as testimony and characterized H.’s girls, pro- of the treatment for the cost family law master stated “ex- credible. Sherry attorney ceedings, and H.’s fees. firm that he molested his cept for his denial evasive, testimony argu- daughters, was] [his
mentative, generally not credi- peculiar, and IV.
ble; furthermore, attempts his inartful mo-
plug incongruent evidence of Petitioner’s CIRCUIT COURT’S FINDINGS tivations, videotape into and Ms. Rockwell’s findings The circuit court reviewed the and further expert’s his theories are obvious master, family fact submitted law credibility.” Stephen H.’s conduct reduce his transcripts hearings, of the and the video- family during hearings before the law tapes proceedings girls’ and of the was also criticized.7 master specifically circuit court re- interview. The Accordingly, master found jected every finding of fact and “each and sexually Ashley Stephen H. molested “on presented by conclusion law” as “probably” molested several occasions” findings. law master and issued own Chelsey of 1989 and between the summer master, the circuit Unlike recommended that visitation with She Gardner, impressed by Dr. Stephen H. be terminated until he satisfacto- court was healthy ego, taining profound, possessed convincing.” made of a law master simi- reasonable; to Pam Rockwell. While not many lar expressly endorsing and ... of his theories some of methodology employed system’ his criticisms of ‘the and common meth- during videotaped Ms. Rockwell her interview odology seems well used in cases of this sort children, did with the taken,” family law accorded little master questions methodology suffi- "not find or weight opinions on the ultimate issues. It to his ciently leading suggestive to invalidate the testimony that most of Dr. Gardner's was found Ashley's which were truthfulness of answers H., concerning Sherry example that she had basically with the child's claims consistent maneuvers, based, engaged exclusionary prior year to other made for over a thereto record, not on the evidence of but what witnesses, therefore, Court finds credible Stephen attorney Dr. Gard- H.'s had told him. professional opinion Rockwell’s credible Ms. separate ner that “’... if I were to admitted convincing, videotape and the to be con- Daugherty saying,’ myself from what Mr. his vincing Ashley prior alle- [H.]’s confirmation of discussing opinion change.” would After several gations, probability Chelsey [H.]’s testimony, problems concluded with his it was sexual abuse." opinion little that Dr. Gardner's was entitled to Finally, family law that Dr. master found weight because his ultimate decision was based Chelsey’s physical exami- Prcville "testified that *8 normal; relatively Stephen Ashley genitalia interview with [H.] on a brief [H.]’s nation was that abnormal, Ashley’s hymenal purely subjective in that unlike the exam was and it was a measure larger by opening was one standard deviation personality tests. MMPI or similar standardized age average years than the for her of four and old; eleven months that there was no evidence of family Stephen H’s 7. The law master found penal penetration, enlarged hymenal but that this (the throughout hearings surpris- opening digitalization "demeanor these was consistent with therefore, finger); domineering ingly inappropriate and it insertion of was consider- opinion degree expert charges her to a reasonable of ing Ashley's the seriousness of and the probability Ashley had been [H.] medical diligence competence and of his demonstrated sexually law master found abused.” attorneys, during Respon- which the several testimony that Dr. Prcville's was "corroborative glared laughed alternately at the Peti- dent or Ashley allegations Stephen that ... [H.]’s [H.] of made sarcastic tioner and her counsel and light penetrated fingers, especially her with his rude, during deprecatory gestures noises and Ashley quite of the evidence that is small for [H.] testimony is of witnesses which behavior age expected her and therefore could be to have on the record[.]” not reflected hymenal average[.]” opening a smaller than Although 6. law master found Dr. erudite, "highly qualified, enter- Gardner to be part of on the Sher- of motivational factors testimony persuasive.8 The circuit
found his for Court by ry That is not this experts in [H.] articles written court discussed techniques, partic- interview Even if such determination area of child determine. specula- of sexual abuse ularly in the context child it be mere to be made would reviewed, on the literature Based certainly situations. not be used as could tion circuit court determined or not sexu- determining whether basis tech- finding that the interview master’s Therefore, this Court al abuse occurred. “sufficiently leading or niques not used were of motivation not the issues will address of invalidate the truthfulness suggestive to by the them to be debated but rather leave plainly wrong. The Ashley’s was answers” Dr. experts such as Gardner.” cursory “[e]ven found circuit court response law master’s to the available literature re- examination finding of fact No. which concerned Ste- Linda the statements of Workman veals that in- pedophilic of certain phen H.’s exhibition suggestibility of Pam concerning and those dicators, her the circuit court discounted wrong.” concerning Rockwell fabrication However, findings. the circuit court did agreed Dr. court with Gard- The circuit agree with the Ste- Ashley how inter- criticisms of was ner’s hearing phen during the H.’s conduct to find viewed. It relied on these conclusions ideal: “This must admit that less than Court reports Ashley’s were not credi- abuse make Dr. did not the best witnesses. [¶] ble, opin- and Ms. Rockwell’s Ms. Workman evasive, argumentative did noth- His answers credible, Dr. not Preville’s ions were Yet, help Court must ing his case. this physical lack evidence report illustrated a its that interfere with consideration let Therefore, the circuit court found of abuse. firm, abusing his Dr. adamant denial of [H.]’s allegations against Stephen H. were not children.” substantiated.9 court to address what Stephen The circuit declined H. on conclusion that Based Sherry H. Ashley Chelsey, factors lead the motivation sexually did abuse pursue what believed to fabricated H.’s Stephen Circuit court ordered visitation charges: rights request- reinstated. The circuit parties provide proposals of ed the written parties has all
“Much been made Stephen H. presence how best reunite with his or absence this action about finding training following Degree no same made further 8. The circuit court possessed Dr. Gardner: with who a Doctorate and level one practical training years had of research and "While the Law Master accorded little testimony opinions weight experience." Dr. impressed quite Gardner Court training, knowledge experience, his case following circuit court made the conclu- opinions. In this vein Law Master his allegations against Stephen as to the H.: sion probative she ‘it no value stated that found light foregoing, "In the ‘disclosures’ to Gardner, expert, Respondent’s that impressively Dr. more thereon, testimony Pam Rockwell her psychologist than credcntialed unreliable, Rockwell; to be of no found this Court or Pamela the Court’s Workman totality credibility of the evi- and will not be used this Court to decision based *9 merely expert opinion, upon finding by Stephen dence and not abuse [H.] make a of sexual the would otherwise battle of credentials re- testimony is found "Once Pam Rockwell’s finding duce the fact of this Court mere lacking testimony the of Linda Workman and position litigant of confirmation of the the be Dr. Kathleen Preville must also found and the which could afford find hire ‘fastest credibility. and lack Both Dr. Preville's Work- gun’ impressive expert. the or most having testimony as to abuse been man's "Obviously, the totali- a Court must consider by Stephen predicated upon perpetrated is [H.] reaching ty a but it of the evidence decision the to Rockwell. The ‘disclo- ‘disclosures' training ignore exper- and cannot the relative having credibility, the sures' been found to lack experts providing the testi- tise levels of those testimony Dr. Preville and Linda of Workman otherwise, by suggested mony. do the To as credibility also found to lack unrelia- is Master, expert Law obviate the need for would ble.” place testimony and a would one with B.S.
393 624, (1992), quoting State ex rel. 629 emotion- S.E.2d daughters the least amount of “with Watt, Sullivan 187 W.Va. parties trauma to all psychological al and Miller, (1992), writing S.E.2d Justice action.” in this involved Court, explicitly that for a unanimous stated “ novo, not act de but ‘the circuit court does V. findings reviews of fact conclusions the family of law law master.’” made REVIEW OF STANDARD Thus, recognized clearly has Court limited role of a circuit court in “appellate” of presents question This case reviewing findings family fact of a law court violated W.Va. whether the circuit master. 48A-4-20(c) (1993),10 Code, when it conduct findings of fact ed a review of de novo Sullivan, In both Dillon and Court family hold by the law master. We made gave regarding elaborate instructions of review for a circuit court that the standard family developing role of a law master a Dillon, immediately Significantly, the aforementioned statute record. is controlled we that a circuit court should should find after remarked a circuit court review fact, findings give de review to novo family only ings by a master of fact made law fact-finding responsibilities of we detailed the standard, “clearly erroneous” under a by stating: “Clearly, in application of law to should review to fulfill func- order the circuit court its facts an “abuse discretion” stand under tion, order must the recommended contain ard.11 complete findings concise and statement of regard appro- with Our conclusion law, fact and conclusions of reasons ap- priate of review should be standard therefor, disposition appropriate and the by family made law plied findings of fact 423 S.E.2d at case[.]” 188 W.Va. by precedent rea- supported fact-finding responsibilities master is 629. These statutory In ex of a construction. State law and the review circuit sonable master 221, 226, statutorily mandated. court Egnor, rel. 188 W.Va. Dillon v. that we Legislature 11. The standards of review discuss amended and reen- W.Va.Code, 48A-4-10, W.Va.Code, applying 48A- opinion as circuit acted text of this as W.Va.Code, 48A-4-20, substantially is 4-20. arc for this Court. A the same standards W.Va.Code, 48A-4-10 W.Va. law; similar to errors the record for court should review 48A-4-20(c), Code, provides: supported by competent, ensure the decision is material, “(c) shall the rec- The circuit court examine evidence in the and substantial whole master, along with the ommended order of record; findings and ultimate and ensure the master, findings conclusions of clearly law master are not decision of a order, may the recommended re- enter of discretion. In review- erroneous or an abuse case, instructions, with for further commit hearing tion, court, ing scope circuit the decisions of the may, master or in its discre- before the relatively is narrow. Our this Court’s review terms, an order different enter considering errors law and role limited to justice may require. the ends of making that the circuit court adhered to certain recommendation, not follow the court shall findings statutory of review of factual deter- standard of a and conclusions master found minations, is, whether mas- be: supported ter's substantial evi- “(1) Arbitrary, capricious, an abuse of dis- dence and with the law. consistent not in cretion or otherwise conformance law; disagreement between Where the cir- there "(2) Contrary right, power, to constitutional master, however, cuit court immunity; privilege or supporting of the evidence the substantial nature "(3) statutory jurisdiction, au- In excess of findings is further into the circuit court’s called statutory thority or limitations short of question, must examine the rec- and this Court right; greater is so even ord with care. This when "(4) procedure re- Without observance *10 disagree family with the circuit court does not law; quired by such, findings, as but draws law master's factual evidence; “(5) by Unsupported substantial facts. different inferences from the or "(6) by the Unwarranted facts.”
394 Sullivan, practice, Legislature] [the of in 187 of centuries
We also stated W.Va. 716,12 455, adopts of presumably “that one of the knows and the cluster at 419 S.E.2d at adoption legislative of purposes chief attached to each borrowed word ideas family system expedite master to learning the law it taken and body of from which was divorce, proce alimony, support and child convey judicial use meaning will (1990).” W.Va.Code, See 48A-4-11 dures. v. instructed.” Evans mind unless otherwise added). Thus, statutory (Emphasis when the States, 255, 259, 112 504 S.Ct. United U.S. coupled purposes with the mandates are (1992). 1885, 57, 1881, 67 See 119 L.Ed.2d family system, hardly it can our Pons, 575, 583, v. 434 98 also Lorillard U.S. Legislature for argued be intended (1978) 866, 871, 40, 47 55 L.Ed.2d S.Ct. circuit courts of this State to have de (“ ‘[Wjhere employed in a statute words are reviewing authority.13 novo meaning which had at the time a well-known country or in the law this at common law recognized implicitly have Our eases presumed in they are to have been used of review for limitations on standard compels to the con- sense unless context Wharton, circuit courts. v. 188 Wharton States, trary.’ 221 Standard v. United Oil 399, 403, 744, (1992), W.Va. S.E.2d 59, 515, 619[, 1, 502, 31 S.Ct. 55 L.Ed. U.S. following language reversing we used the (1911)”). Legislature When the enacted 646] an order of the circuit court: “We find the W.Va.Code, 48A-4-20(c), it intended the refusing circuit court’s order to follow the phrases “unsup- “abuse discretion” and family law in- master’s recommendation to ported by substantial evidence” as used alimony per crease Mrs. Wharton’s to $1300 encompass panoply this section to the entire by required month was not the ‘ends of judicial previ- of definitions which the branch justice’ against preponderance ously to ascribed those terms. The words Similarly, language the evidence.” both the W.Va.Code, 48A-4-20(c), nearly used are 48A-4-20(c), W.Va.Code, purpose of indi- language Virginia identical of West scope to circuit cate review accorded Act, W.Va.Code, Administrative Procedures is limited.14 courts (1964). 29A-5-4(g) Specifically, subsection (g) “clearly of the Act uses terms as laws, such Legislature When the enacts discretion,” wrong,” “abuse and “unwar- presumed pertinent be of all aware judicial ranted judgments by exercise discretion.” Our cases rendered branch. judicial consistently By borrowing of art in which have held that review “terms legal (g) meaning accumulated the tradition and under subsection See is deferential. Ran- giving only regards principles, 12. Three reasons as exist deference to but as (1) findings: evidence, law master’s law upon they which are founded.” expert determining master is an family facts in cases; (2) duplication law of a Higginbotham Higginbotham, 14. In 189 W.Va. costly master’s efforts a circuit be court would 789, 521-22, (1993), 432 S.E.2d 791-92 only negligibly and would contribute accu- explicit Court made the standard of review under facts; (3) racy of the determination of W.Va.Code, (now W.Va.Code, 48A-4-10(c) 48A- energies parties already have focused their 4-20), when we said: resources on the determina- master's generally City See tion. Anderson v. Bessemer W.Va.Code, recognize "We [48A under —4- N.C., 574-75, City, 470 U.S. 105 S.Ct. 20(c) (1993)], ’may, a circuit court in its dis- (1985). 84 L.Ed.2d cretion, terms, enter an order different section, justice may require.' the ends of This scope standard of review also are however, judge's ability limits a over- W.Va.Code, limited 48A-4-18 Sub- turn a law master's and conclu- (a) provides section of this statute for the formal they sions unless within one the six and, fall requirements discussing of review after statutory enumerated criteria contained petition, following language contents of added; omitted). (Emphasis section." footnote appears: "Only questions set forth in the position We believe the Steven H. is foreclosed petition fairly will be included therein consid- by Higginbotham, given report we are no ered the court. Parts of the master’s reason correct, excepted depart ruling. admitted from that
395 Scalia, reason, explicit ter. For we make it County Bd. Educ. v. 182 dolph of (1989); 289, findings of fact 524 Va. a circuit court must review 387 S.E.2d West W.Va. by family Transp. v. made a law master under Rights Human Comm’n United 655, Union, 282, clearly erroneous standard. Local No. 167 W.Va. 280 (1981). S.E.2d 653 clearly
Under erroneous stan dard, phrases findings if fact and the infer Legislature’s use of such of discretion,” by by family a master are “Unsupported of ences drawn law as “abuse evidence, evidence,” supported by substantial such find “[u]nwarranted substantial may phrases appel ings limitation for and inferences not be overturned the facts” are of W.Va.Code, may if purposes. 48A-4- even a circuit court be inclined to late review 20(c). matter, many findings contrary inf practical of these make different or draw As susceptible categorical City erences.17 See also Anderson v. phrases N.C., However, 564, 577, City, circuit courts are well Bessemer 470 U.S. 105 definition. 1504, 1513, 518, (1985); “clearly concepts aware of as errone S.Ct. 84 L.Ed.2d 530 such 532, QuikTrip Corp., and “abuse of discretion” and are a Beck v. 708 F.2d 535-36 ous” (10th Cir.1983) (findings may position to determine which cases fall into of fact be ade quate they if categories.15 these even not exhaustive when fact); supports findings of the record those general guidance giving In addition to (8th Mason, 361, Maxwell v. 668 F.2d 362 responsibility the division of is to be how Cir.1981). exercised, Legislature enacted this stat- very purpose allocating many aspects There are critical of an evi- ute for the dentiary decision-making responsibilities hearing be- which cannot be reduced to various record, family writing placed e.g., in a the de- tween the law master and the circuit statutory pur- factors af- provision’s courts. meanor of witnesses. These When forming pose judicial pre- conserve resources fect the mind of a trier of fact an is to effort, opinion weight of the evidence and venting duplication of it would be as to the credibility an stan- the character and of the witnesses. counterproductive adopt intensive Indeed, Thus, appellate importance review.16 of these factors should dard de novo W.Va.Code, purpose ignored by reviewing not be court. Given a would defeat the 48A-4-20(c), familiarity permit findings master’s intimate with review proceedings, fact without deference to the law mas- law master is Procedure, following “clearly adopts 15. The erroneous” Civil which distinction between fact, widely accepted "Findings and "abuse of discretion” often is obscure. formula: Judge Friendly suggests discretionary evidence, that a rul- documentary whether based on oral or ing may appellate an not be set aside erroneous, clearly shall not be set aside unless “ it has a definite and firm 'unless conviction regard given opportunity and due shall be judg- the court below committed a clear error judge credibility of the trial court to upon weigh- ment in the conclusion it reached 52(a) Our cases indicate that Rule witnesses.” ” ing of the relevant factors.' The Honorable applicable to a circuit court’s review of a Discretion, Henry Friendly, J. Indiscretion about findings. Higginbotham v. law master's See 747, (1982). (Citation Emory 31 L.J. 763 omit- Higginbotham, supra; Whiting Whiting, 183 ted). Obviously, this is the same articulation this 451, (1990). 413 W.Va. 396 S.E.2d adopted clearly for the stan- Court has erroneous and, findings many dard review factual "clearly finding al- 17." 'A erroneous" when cases, interchangeably. of our we have used them it, though support the re- there is evidence to Perhaps important the most difference is that the constant, viewing "clearly court on the entire evidence is left erroneous” standard is while as to the that a mistake "abuse of discretion” standard the definite and firm conviction Wirt, specific degree very well of deference accorded committed.’" Board Educ. v. has been may depend ruling being 402, on the nature of the 192 W.Va. 579 n. 453 S.E.2d n. reviewed. (1994), quoting United States v. United States Co., 364, 395, Gypsum 333 U.S. 68 S.Ct. require 16. Our decision to deferential review of 92 L.Ed. of fact is consis- master's 52(a) Virginia Rules of tent with Rule of the West *12 396 fact, findings including all of those weigh plies as- to position evidence and to best or con making ruling as “ultimate facts” “factual credibility in the ultimate described
sess clusions,” not inhibit [a standard “does this disputed on issues. law, of errors power court’s to correct circuit] Wirt, Education v. we said in Board As of may infect a so-called including those that 402, 568, 579, 413 453 S.E.2d 192 W.Va. fact, finding a finding law and or mixed (1994): “Indeed, tribunal’s con- if the lower misunderstanding a predicated is on fact that viewing the evi- plausible is when clusion Corp. Bose v. governing rule law.” may entirety, appellate its dence in U.S., Inc., 485, U.S. Union 466 Consumers weighed if have not reverse even it would 502, 501, 1949, 1959-60, 80 L.Ed.2d 104 S.Ct. differently if it had been the trier evidence (1984). (Citations omitted). 517 (Citation omitted).18 deference fact.” This given also is to the lower tribunal Wirt addition, foregoing In discus appropriate present case because the stripping interpreted be as a sion should not in a to family position law master “is see its function as an primary circuit court of hear the and is able to view witnesses Questions expositor of law. of law are appellate that an perspective case from a Legal on Eth reviewed de novo. Committee Seltzer, v. 873 court can never match.” Weil McCorkle, 286, v. 192 W.Va. 452 S.E.2d ics (D.C.Cir.1989). (Citation 1453, F.2d 1457 (1994). identifying ques features 377 omitted). (2) (1) they general; tions of law are: they normally by today’s do not rest the existence or suggest do mean to
We
(3)
facts;
they
specific
holding
prohibited from nonexistence of
that a circuit court is
governing legal
conducting meaningful
family
a
result
in consistent
rules.
review of
Questions of
be standardized re
findings of
law should
law master’s
fact
conclusions
Therefore,
statutory
review
contrary,
very
gardless
To
of the facts.
we
of law.
alleged
regard
applying
to
question compels appropriate re
errors
provision in
by limiting
grounds upon
findings
which a
law to
of fact under an abuse of
view
may
family law
be affirmed
discretion standard.19
master’s decision
merely
a circuit court. We
hold that
may
summary,
hold if a circuit
“improperly eonduct[ ]
circuit court
we
weighing
...
evidence in the
court believes a
law master failed to
a de novo
576,
Anderson,
findings
proper
470
at
105 make
of fact essential
record.”
U.S.
1513,
(reversing
legal question,
it
at
I on real rather than masters are based history, judge judge; that a circuit has unbri- not the circuit law masters ined only year have guarantee to “examine the recom- a four term with no dled discretion retention; master, “good and, family along with behavior” mended order of the (as master, opposed judges) to circuit have findings and conclusions of the and masters terms, higher requirement appointment no than may ... an order different enter bar, justice may require____” degree, membership a law as the ends of Code, governor friendship county it is the with a chair- [1990]. 48A-4-10 Remember: judge’s man. circuit order and not master’s
court. arrange mechanical all, signment Thus, concluding port. sion Code 48A-4-10 on the cake and are it has in ultimately But judge The their always judge categories error enumerated reasons must exceptions judge been the law master doesn’t need a emerges overturn a master’s provided change is [1990] into which judge’s from the lower something: are precluded give lawyers master’s simply icing for which a specific final they order. from after deci- twit. re- as- with that scheme as cally broadened court-like W.Va. tional. come so state-paid masters in decisions. Thus, modify existing the circuit Const, law master with all of If complex it seems to me that hierarchy powers If, however, art. judge VIII, long as at where each level orders, chancellery make there must now be masters court is unconstitu- making temporary then I can live system least powers to clothe with theoreti- has be- certain simply orders grants policy a a (or Furthermore, everything in all of makes the one below it deference this wonderful lip granting politically. Judges i.e., pays REAL service to defer- sense least — (thank ence) I judges elected then believe that we should declare State —are God!) system legislature nor the the entire law master unconstitution- neither again repair legislature al for an people disposed change that selection elected, limited-jurisdiction judiciary entirely re- domestic relations criterion when the judicial adequately paid, placed reorganization that will structured the 1974 judicial Family system, under retirement amendment. law masters are long good important given suitably term that judges, and it is to remember that. such (1) high of re- Family law masters are neither elected behavior will ensure a likelihood of the Crabtree, passage With discussion. W.Va. See Starcher election. Amendments of Support Enforcement Child 348 S.E.2d 98-378, Congress imposed a re- P.L. would, therefore, judge affirm the circuit I expedited to establish quirement on states his plainly decision on as I no erroneous see for ob- judicial processes or administrative part. enforcing support taining orders. July 1995] [Filed 1986,1 Legislature Virginia the West WORKMAN, Justice, concurring: concerning the the numerous issues debated and how the relations law current domestic absolutely majority reaches While federal man- respond to new result, disagree state should vehemently I correct Legisla- doing. expedited process. date for an they created in so the new law system groundings in the majority opinion quasi-judicial2 has no ture enacted Family Law history development authority granted broad law masters “FLM”) (hereinafter referred to jurisdiction Master area of domestic law— understanding system very and reflects little solely issues related which far exceeded It in treats the status. essence of its current jurisdic- subject support. The matter child important facing human issues most law masters granted tion consequence they if of no more courts as resulting Virginia from federal West than administrative matters. scope significantly mandate was broader *16 granted quasi-judicial officers in than that to wrong legal a The decision is from stand- are limited to matters many other states who a point wrong policy from and even more by the federal mandates. defined deprives circuit courts of perspective. It the jurisdiction, effectively reversing an original years, ensuing the it became obvious Over considering opinion of this without ever court underfunded, un- system FLM that the it, dangerously citing or and ventures even ineffective, quanti- managed, both statutorily-created system clothing to close Beginning ty quality performance. of its constitutionally-created the of a status year began implor- this each Court court. ing Legislature bring to reform to this the as system. In we went so far to for- I. Legislature mally request that the either re- system form or else it from affili- the remove History Family Legislative the judicial the branch.3 ation with System Law Master all legislature failed to enact the ree-. First, history examination of of the an the reforms, the necessary but move FLM system backdrop as a to ommended did FLM is creating Virginia legislation of the West Courts had no to the enactment of ministrator 1. Prior authority system. system, over this domestic relations matters administrative the FLM all entirely purview the under the circuit courts, although practice commonplace my 3.Speaking it was a State for the Court in of the Virginia appoint Judiciary courts I in West to Divorce address in said: hear divorce cases and make Commissioners to pressing most need I turn now to the of the concerning support, recommendations issues system judicial which and the area in we most custody, and of marital assets. The distribution earnestly your help Family seek Law Mas- —the courts, however, original jur- full retained System. ter cases. isdiction domestic relations action, legislative Family Without the Law System July Master is scheduled to sunset on great initially over year. asking pro- 2. There was debate whether We are 1st of continued, system strictly the should be administrative gram be but with substantial continued, legislation quasi-judicial. changes. The result that first If we it is not stand to quasi-judicial system peopled lawyers approximately dollars lose one million in fed- only governor part- appointed serve funds. the eral officers," Although "judicial you performance called In commissioned a time. Family System part budget the Law masters were under the of the De- audit of Master as law procedure. The partment the sunset review audit and the Court Ad- Human Services part-time only, remain most still judicial budget, modify it to a masters the system to system, give private practices the as full-time/part-time continuing split to conduct duties, authority drawing some measure judicial Court their perform well as geographic regions. of this Although the Administrative Office II. management sought bring has Court system, it cannot the FLM coordination v. Crabtree Sturdier regarded form present be newly constitutionality the level of defer- system4 entitled to challenged in Starcher suggests. Many enacted statute was majority ence continued, system be recommended that changes improve regions be made to mi- agree but that several that the current need We delivery significant most services. realignment, system three nor and the needs included: of these recommendations our busiest ar- additional Masters work in program moving budget from the for the eas. system; department to the court agree with audit recommen- We do not full-time, prohibit- making thus the Masters Masters, appoint that the Court but dation ing law, engaging private practice from in a them given authority urge do we be over some compensating commensurately; them propose We that the Court have their tenure. realigning Family regions Law Master certify authority vacancy Gover- larger multiple regions with Masters create Family carry nor Law if a Master does not out caseload; equitably distribute the and more efficiently. judicial responsibilities his or her allowing Supreme appoint Court to authority, way to we have no see Without that the Masters. job gets to it done. agree budget We that the should moved transferring budget exception of With the system critically Supreme is Court. The Court, we recommend these projected deficit for underfunded and 1, 1994, place July $128,000. changes take when until year gross- present Masters have facilities, expires, current term and when ly inadequate Masters’ and do have even peak. supplies. expected to most basic office crisis *17 system for this to changes, System We believe that in order will con- Without these the work, very given it must be some basic tools. families in In some our tinue to fail trouble. address, he of the state In the Governor's state litigants regions, wait have to months busiest spoke employee forced to add rows state get temporary to court to obtain orders for into figures even a and rows of without hand calcu- support, medi- necessities like child immediate being Family Masters lator. Our Law meantime, care, they housing. cal the and In the to take families in crisis of both asked homes; may from children evicted their be disruption and and to fair- financial emotional medical, food, clothing, may go and without everything ly their divide assets—sometimes treatment; may de- parents non-custodial they’ve a lifetime—as well as accumulated over visitation; live in limbo nied children support— custody, sort out child visitation relationships. important as to their most calculators, phones people can without without of divorce and financial chaos The emotional on, through postage get to mail out without under is a event for families even the traumatic notices, place to sometimes without even a subject fami- To these best of circumstances. hearings. hold delays system lies in the court to intolerable We have no to create a lush bureau- desire your only compounds We need their crisis. earlier, cracy. Department As I the U.S. said help. Virginia has West as the of Justice identified you not see to these do make judicial system in the na- most cost-efficient If fit changes— System Family changes are consistent with what we But the Law Master sim- which tion. effectively people years ply for the past cannot function have recommended for four —then Virginia it continues to be treated like West if you place Family Master urge we to Law stepchild. an unwanted System agency government. state in another agree your We also audit the Fami- way responsibility We seek to our in no shirk ly maintain outside Law Masters should not area, under circumstances in this but current compensated ac- practices should be law cordingly. resources, manage simply we cannot efficiency operate we program with the same changes both As a result of Federal system. of our rest law, compli- cases are far more State domestic they now were in 1986 when cated than anything in this this statement nor Neither created, System and the caseloads opinion denigrate quality of the intended to increases, increasing rapidly. full work As the family law masters. current job full-time attention of the demands the Masters. 402 juris- have concurrent
Crabtree,
707,
ture allowed both to
S.E.2d 293
W.Va.
348
176
(1980).
§ 48-2-5
(1986),
petitioner
diction. See W.Va.Code
claimed the
wherein
courts,
legislature’s
recognizing the
origi-
courts of
legislation
circuit
divested
forums, acknowledged
change
agreed
ability to
jurisdiction. This
court
nal
equity
nor
courts
law courts
Specifically,
neither
found the statute unconditional.
to
mar-
power
had
inherent
dissolve
reasoning
on the conclusion
our
was based
authority of a
riages
“only a
retain
courts would
statutory.
purely
a divorce was
decree
jurisdiction” under the stat-
limited appellate
1,
pt.
ex ret.
v.
e.g., syl.
See
State
Cecil
708,
2945 and
Id.
348
at
ute.
at
S.E.2d
896,
at considerable Reorganiza- the Judicial were abolished constitutional deficiencies correct the Virgi- tion to the West Amendment 1974 system. FLM nia Const. Art. See W.Va. Constitution. leg- § eliminated the 5. The amendment Starcher, forth a brief this Court set jurisdiction power change islature’s jurisdiction history relating of the law constitutionally cases and divorce divorce cases: placed in the circuit court. divorce cases state, Virginia awas Before West Patterson, 167 See W.Va. Patterson power grant divorces resided in the 277 715 S.E.2d Virginia legislature by special enactment. 708-09, 294-95 348 S.E.2d at W.Va. however, power legislature, lost added). (emphasis Virginia grant when the West divorces was ratified. Article Sec- Constitution “[bjecause Thus, we concluded that prohibits legislature from tion 39 jurisdiction places the for di- constitution divorces, leg- that “the granting but states vorce matters in the cir- and other domestic laws, provide, by general islature shall court, legislature’s cuit efforts divest (divorces).” Thus, legislature while the jurisdiction by is [sic] statute unconstitu- divorces, grant power lost it still tional therefore void.” Id. at many including powers, power retained (footnote omitted). 5.E.2d at *18 the forum divorce. choose for Under Starcher, constitution, Virginia in the the Even the two dissenters Chief 1872 West McGraw, legislature urging could allow the circuit Justice Miller Justice in either 8, constitutionality that of the courts to handle divorces under Article the statute pur- upheld, specific pointing § 12 for in out that the or form a limited court that 8, clarify § Article that the pose legisla- under 19. Court needed review (4) provided, procedure §at Without observance of re- 5. House Bill 2094 48A-4-9 part, law; a circuit court would review a quired by [or] petition final law master's order when (5) Unsupported by evidenced] substantial properly review had been filed. Once such re- However, the under no circumstances could undertaken, provided view the was statute contrary enter its order circuit court owm the circuit court could either enter an order Thus, findings the master. the of law affirming or the master’s final order remand the power circuit court had no of review unless a upon finding that case the master’s final order filed, petition even for review was the limit- was: provided ed which was did include review not (1) Arbitrary, capricious, an abuse of discre- authority to enter a final order circuit court tion, the or otherwise in conformance with order, differing from the master’s final but mere- law; ly permitted remand. (2) right, Contrary power, to constitutional immunity; privilege, or up spe- 6. There were other matters taken (3) statutory jurisdiction, of au- In excess session, signifi- limitations, cial but this one of the was most thority, statutory or short of right; cant.
403 juridically determining the same contro- Id. 709 be de novo. circuit court should (McGraw, Original jurisdiction here versy. as used at 295 and 299 348 S.E.2d Miller, C.J., right of the court to make its J., dissenting). means dissenting and record, finding and determina- own its own statute, West the advent of new With original is An determination one not tion. § which Virginia (Supp.1994), Code 48A-4-20 upon previously made. It is founded one passed by as a result special was session original the sense that it stands alone case, a circuit court could of the Starcher base, upon outgrowth own of its aof review the recommended order some other.” authority to enter an law master and retain Id., P.2d at 114 1037.8 differing the recommendation order from of if the six enu- one of master original jur- Accepting proposition In this man- requirements is met.7 merated implies authority isdiction to make the ner, original jurisdiction of the divestment of fact, narrowing own of of court’s court corrected. the circuit accomplished by standard review majority infringes upon the severely circuit just irony as height It now the original jurisdiction. “Original juris- courts’ jurisdiction of the circuit courts original power is the to entertain cases in the diction legislation held uncon- abrogated instance, distinguished appellate first from Starcher, Court stitutional Times, jurisdiction.” Inc. v. New Arizona interpretation of majority’s the current stat- Regents, Ariz.App. Bd. 20 P.2d 513 jurisdic- infringes original ute also (1973), grounds, 964 vacated other explained aptly tion of the circuit courts. As 110 Ariz. P.2d 169 519 Johnson, 100 114 P.2d in State v. Utah (1941): legislative majority’s reconstruction right pronouncement jurisdiction ... restricts court “[o]riginal cause, review, scope thereby elevating juris- hear the to make own determina- authority mas- from evidence as diction and tion of the issues witnesses; judicial ter. function directly or of Such redistribution submitted close, dangerously presented, or un- ventures as Justice Nee- the law as uninfluenced 9ly opinion, by any points out in his dissent to this prior or limited determi- concerned nation, any the unconstitutional creation of a new level or the action of other court 48A-4-20(c) & Virginia provides: § also In re American Waste Pollution See 7.West Code J., (La.1991) (Dennis, shall the recom- Control Co. So.2d The circuit court examine master, along order with the concurring) ("Original jurisdiction ‘[jjuris- mended is the master, findings and conclusions of the a case in the first instance. diction consider order, may may enter the recommended re- cognizance [a] Jurisdiction take instructions, case, for further commit the hearing tion, *19 it, try inception, pass judgment at its and cause may, or in its before the master discre- upon (quoting facts....'” Black’s and terms, an as enter order different 1990)); (6th Dictionary ed. A. Michael Law justice may require. The circuit the ends of al., Litigation Path et The Status Dual Ritscher recommendation, court shall not follow Jurisdiction, in and Courts: Issues the ITC findings and of a master found to conclusions Review, Q. Appellate 18 AIPLA J. Res Judicata and be: (1990) 155, (“Original jurisdiction is 161 defined (1) Arbitrary, capricious, of discre- an abuse cognizance of a cause at as 'Jurisdiction to take not in conformance with the tion or otherwise inception, try pass judgment upon its it and law; ” (quoting Dictionary (2) Law Contrary right, power, law and facts.’ (5th Black’s to constitutional 1979)). privilege immunity; or ed. (3) statutory jurisdiction, au- In excess of statutory thority or or short of limitations 9. much of the other dissent from Justice While right; Neely in rhetoric with which I would is couched (4) procedure re- Without observance myself, many underlying con- of his disassociate law; quired by absolutely accurate. clusions evidence; (5) by Unsupported or substantial (6) by Unwarranted the facts. 404 essentially redraft VIII, 1 intervened to of have Article Section
judicial authority.
improper. We
pronouncement is
legislative
provides,
Virginia Constitution
the West
forth in
procedures set
employed the
judicial pow- have
“The
part, as follows:
pertinent
quite ef-
court review
statute for circuit
solely in a
vested
be
of the State shall
er
fectively, as
our decision
illustrated
appeals
supreme court of
and
189 W.Va.
Higginbotham
Higginbotham,
v.
... and
courts
magistrate
...
courts
and
(1993). Furthermore,
519,
we
magistrates
gender fairness domestic assuring supported
ginia, to that children in of dissolution
and that families
the strife
compassion.
with fairness
are treated
arbitrary, unfair capricious, and treatment TAX AND DEPARTMENT OF judicial many years was system that for REVENUE, Defendant norm. Below, Appellant. “how No. Family susceptible to a 22814. law not pin” many of a angels can dance on head Appeals of Supreme Court of Although frequently all analysis. judges too Virginia. West arise human issues that view difficult more in the nature of social as Sept. 1995. Submitted work, work, legal perhaps “he-man” not real 13, 1995. Decided Oct. overlay fact it has an intrinsic such sociological consider- psychological areas it one of the most difficult ations makes basic Because it relates such law. modify justify if the of fact of majority vainly attempts to its con the order
11. synthe by attempting § attorney clearly 48A-4-20 general struction of size erroneous in view into its own characterization reliable, the statute probative and substantial evidence impor the tantly, of review intended. Most standard added). record____”) (emphasis on whole appear ‘‘clearly no the words erroneous" 48A-4-20, majority “construing” § has where the statute. If it was the intention effectively legislative authority usurped standard, legislature even for that to be statute. amended the Virginia cursory reading readi of the West Code ly sires, legislature, so de that the when it illustrates my during almost It observation has been clearly exactly impose knows how See, years that there is almost fourteen bench e.g., W.Va. erroneous standard of review. (1991) ("In 1-15A-13(c)(4) disregard any quality § adminis in the kind Code 1 macho-like brought challenge proceeding gives family trative or court judicial system law issues. There special price gasoline average whole just nearly important as it is sense that commissioner, his fuel as the tax determined litigation significant high criminal civil or a stake presumed be correct determination shall be in these Yet to the individuals involved case. clearly be set it is and shall not aside unless cases, are, figuratively speaking, life these issues added); erroneous.") (emphasis W.Va.Code and death. 46A-7-106(3) (1995) (stating, part, § *21 "[ajfter (a) hearing, reverse