John PW ex rel. Adam W. v. DAWN DO

591 S.E.2d 260

214 W.Va. 702

JOHN P.W., on Behalf of ADAM and Derek W., Petitioner Below, Appellee v. DAWN D.O., Respondent Below, Appellant.

No. 31155.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 2003.

Decided December 4, 2003.

Thomas G. Dyer, Mary Guy Dyer, Dyer Law Offices, Clarksburg, for the Appellee.

Shannon R. Thomas, Weston, for the Appellant.

ALBRIGHT, Justice:

Dawn D.O.¹ appeals from the April 15, 2002, decision of the Circuit Court of Harrison County affirming the domestic violence protective order that the Harrison County Family Court Judge issued against her upon the petition of Appellee John P.W. Appellant challenges the issuance of that protective order, arguing that the statutory grounds for its issuance were not met and that the circuit court failed to afford her a hearing in connection with her appeal of the order. Upon a full review of the record in this matter, we find that error was committed by the family court judge's wrongful issuance of the protective order and further find that Appellant was denied her statutory right to a hearing in connection with her appeal. Accordingly, we reverse.

I. Factual and Procedural Background

The parties were married in 1984 and during the course of their marriage, two sons were born:² Adam, who is currently 16, and Derek, who is currently 13. Following their divorce on December 2, 1996, the parties jointly shared custody of their sons. Pursuant to this custody arrangement, they each had physical custody of the children fifty percent of the time and jointly shared all parenting decisions.

From a very early point, there were problems with the shared custody arrangement.³ The record reflects that the parties and their children were engaged in periodic counseling in an attempt to resolve various issues that surfaced over the years and that several modification orders were entered with respect to the original joint parenting agreement. On August 24, 2001, Appellee filed a motion seeking a modification of custody based upon the desires of Adam, who would turn fourteen in a matter of months. Through this motion, Appellee sought to have Adam reside exclusively with him and to "visit with the Respondent [Appellant] only upon the mutual agreement of the infant child and the Respondent [Appellee]." By order entered on February 1, 2002, the family court made Appellee the primary physical custodian of Adam and provided for bi-monthly weekend visitation between Adam and Appellant.⁴

On March 17, 2002, an altercation between Adam and Appellant occurred as Adam was leaving his mother's residence following a weekend visitation. Adam had attempted to take certain expensive items of sports memorabilia from Appellant's home without her consent.⁵ When Appellant confronted Adam about taking the items, which she had purchased for him and intended to remain in his room at her house, he left the items and exited angrily from the house, slamming the door upon leaving. In response to Appellant's attempt to speak with him about sneaking things out of the house, Adam was allegedly verbally abusive to his mother, saying "no" in response to her request that he talk to her, and following that comment with "[w]hat are you going to do about it?" At this point, Appellant apparently ran after Adam, and grabbed his shirt. He managed to slip out of his shirt and Appellant then grabbed her son by the back of his pants trying to pull him back. While the facts are disputed as far as the severity of the physical harm inflicted upon Adam, he was allegedly scratched and/or bruised in the process of the struggle that ensued with his mother.⁶

During the entirety of the incident, Appellee observed the struggle while sitting in his van, which was parked in Appellant's driveway.⁷ While in the van, Appellee, who is the chief of police of a local community, made a 911 call to which a police cruiser responded. The responding officer, Michael J. Limley, took statements from Appellant, Appellee, and Adam.⁸ He took pictures of Adam as well.⁹ Appellant and Adam went to the Harrison County Magistrate Court on the date of the incident and obtained a temporary domestic violence order. Pursuant to this emergency order, Adam and Derek were removed from Appellant's care and Appellee was awarded temporary custody of the children with no visitation or contact provided to Appellant.

On March 25, 2002, a hearing on the domestic violence petition was held before Family Court Judge M. Drew Crislip. Testimony was taken from Officer Limley, Dr. George Moses, a treating counselor, and Sharon Johnson, a co-worker and friend of Appellant.¹⁰ With regard to the facts of the incident, the family court judge simply read into the record the domestic violence petition filed by Appellee and the response that Appellant filed to the petition. Although a child protective services worker, Mary Nicholson, appeared to testify, she left without giving testimony due to the illness of her child. Before leaving, however, she gave the family court judge her opinion that the restraint used during the incident by Appellant was excessive, though she declined to give a recommendation due to the incompleteness of her investigation.¹¹

During the course of the hearing, the family court judge found that domestic violence had occurred based on the sole factual finding that Appellant "exceeded the bounds of propriety in attempting to discipline the parties' son, Adam." In issuing the domestic violence protective order, the family court judge granted Appellee custody of both Adam and Derek; provided for visitation between Adam and his mother "only as Adam wishes;" and set up supervised visitation between Derek and Appellant, that was to occur every other weekend.

Appellant timely filed her appeal of the ruling issued by the family court judge on April 8, 2002. Without providing any hearing to Appellant on her appeal, the circuit court issued its ruling on April 15, 2002, in which it affirmed the family court's issuance of the domestic violence protective order. In its ruling, the circuit court found no error, holding that Appellee had shown domestic violence by a preponderance of the evidence and that the family court judge "did not disregard the best interests of the parties' other infant son, Derek W[.], in granting custody of him to" Appellee. Through this appeal, Appellant seeks a reversal of the domestic violence protective order.

II. Standard of Review

Our standard of review is the same as that of the circuit court which is set forth in West Virginia Code § 48-27-510(d) (Supp. 2003): "The standard of review of findings of fact made by the family court is clearly erroneous and the standard of review of application of the law to the facts is an abuse of discretion standard." Consequently, upon an appeal from a domestic violence protective order, this Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo. With these standards in mind, we proceed to determine if the lower court committed error in affirming the decision of the family court judge.

III. Discussion

A. Domestic Violence Finding

Appellant argues that the circuit court committed error in finding that domestic violence was proven on the facts of this case. Domestic violence is specifically defined by statute as requiring the commission of one or more of the following acts between "family or household members":¹²

(1) Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;

(2) Placing another in reasonable apprehension of physical harm;

(3) Creating fear of physical harm by harassment, psychological abuse or threatening acts;

(4) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b [§§ 61-8B-1 et seq. and 61-8D-1 et seq.] and eight-d, chapter sixty-one of this code; and

(5) Holding, confining, detaining or abducting another person against that person's will.

W.Va.Code § 48-27-202 (2001).

Appellant maintains that none of the acts defined as constituting domestic violence applies in this case and, further, that the family court judge did not make a specific finding that any one of these qualifying acts was demonstrated by the evidence. The only finding contained in the protective order was that "Respondent [Appellant] exceeded the bounds of propriety in attempting to discipline the parties' son, Adam, in the presence of Petitioner [Appellee] and the parties' other son, Derek."

In response to Appellant's arguments that domestic violence was not shown, Appellee contends that the proffered evidence could be viewed as having demonstrated the occurrence of physical harm; that Adam was placed in "reasonable apprehension of physical harm," and that Appellant had held, confined, or detained Adam against his will. See W.Va.Code § 48-27-202(1), (2), (5). Because there is no finding by the family court judge as to which definition of domestic violence he was relying upon to issue the protective order, we are without any basis from which to review his ruling other than to look at the statutory definitions to determine whether the evidence presented demonstrates an act which qualifies as domestic violence under the statute. See W.Va.Code § 48-27-202. To avoid this problem in the future and to allow proper judicial review, we hold that a family court judge who issues a domestic violence protective order is required to make factual findings which describe the acts of domestic violence that have been established by the evidence presented and to identify which statutory definition of domestic violence such facts demonstrate.

For purposes of this appeal, we will examine the three definitions of domestic violence upon which Appellee relies to argue that the family court...