Kessel v. Leavitt

511 S.E.2d 720 (1998)

204 W.Va. 95

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

v.

David Keene LEAVITT, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and Brian P. Conaty, Defendants Below,

Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty and Brian P. Conaty, Defendants Below, Appellants.

No. 23557.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1997.

Decided July 22, 1998.

*734 Marvin W. Masters, Paula L. Wilson, Masters & Taylor, Charleston, West Virginia, Attorneys for the Appellees.

Lonnie C. Simmons, DiTrapano & Jackson, Charleston, West Virginia, Attorney for the Appellants.

Janis K. Stocks, San Diego, California, Attorney for Amicus Curiae, Academy of California Adoption Lawyers.

Brendon C. O'Shea, Gleason, Dunn, Walsh & O'Shea, Albany, New York, Attorney for Amicus Curiae, The National Council for Adoption.

Mitchell Wendell, The American Public Welfare Association, Washington, DC, Legal Consultant for Office of Secretariat of Amicus Curiae, Association of Administrators of the Interstate Compact on the Placement of Children.

Jon R. Ryan, Punta Gorda, Florida, President of Amicus Curiae, National Organization for Birthfathers and Adoption Reform.

DAVIS, Chief Justice: [1]

The appellants herein, and defendants below, David Keene Leavitt, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas J. Conaty, and Brian P. Conaty, [2] appeal from a December 4, 1995, jury verdict in the Circuit Court of Cabell County returned in favor of the appellee herein, and plaintiff below, John Woodruff Kessel. Claiming that the defendants had acted fraudulently in placing the child of Anne Conaty and John Kessel for adoption and that they had tortiously interfered with John Kessel's parental rights in his son, the jury awarded John compensatory damages of $2 million and punitive damages of $5.85 million. The defendants appeal these verdicts citing, among other errors, the circuit court's lack of personal jurisdiction over defendant Leavitt; the failure of the plaintiff to state a claim for fraud or tortious interference upon which relief can be granted; the inappropriateness of certain jury instructions; and the excessiveness of the damages awards. In addition, the appellee herein, and plaintiff below, Ray Miller Kessel cross-appeals the circuit court's decision to direct a verdict in favor of the defendants with respect to his claims alleging that the defendants interfered with his grandparental relationship with the child of Anne Conaty and John Kessel. Upon a review of the parties' arguments, the record evidence, and the relevant authorities, we affirm the decision of the Circuit Court of Cabell County.

I.

FACTUAL AND PROCEDURAL HISTORY

The evidence presented to the jury reveals the following facts. Defendant Anne Gilmore Conaty [hereinafter Anne] and plaintiff John Woodruff Kessel [hereinafter John] were romantically involved for a number of years. In November, 1990, they broke off their tumultuous romance. Shortly after the break-up, Anne discovered she was pregnant, with an approximate date of conception of October 12, 1990. She informed John of the pregnancy in December, 1990. [3] They were briefly engaged in January, 1991. While John opposed any adoption of their unborn child, Anne wanted either to raise their unborn child, by herself or with John's help, or to place their unborn child for adoption.

Anne testified that, in January, 1991, she became afraid of John and feared for her safety after the deterioration of their relationship. She decided to leave her residence in Huntington, West Virginia, and take a leave of absence from her job. [4] Anne visited *735 with a friend in Iowa for approximately two weeks, stayed with her brothers in Tennessee for about six weeks, and traveled to her relatives' home in North Carolina, where she remained for approximately five weeks. Anne's parents, defendant Eleanor Wolfe Conaty [hereinafter Mrs. Conaty] and defendant Thomas J. Conaty [hereinafter Dr. Conaty] visited her in North Carolina, and discussed the possibility of placing the unborn child for adoption. While the Conatys were in North Carolina in April, 1991, Mrs. Conaty saw a newspaper advertisement for a California adoption attorney. Upon contacting this attorney's office, Mrs. Conaty was referred to another California adoption attorney, defendant David Keene Leavitt [hereinafter Leavitt]. Mrs. Conaty then telephoned Leavitt and either Leavitt, himself, or his wife, informed Mrs. Conaty that an adoption of Anne's unborn child could be accomplished in California without having to notify John or obtain his signature. Shortly thereafter, Anne spoke with Leavitt regarding the possibility of placing her unborn child for adoption. [5]

In May, 1991, Anne journeyed to Minnesota to stay with her aunt. On May 20, 1991, Anne informed Leavitt that she wished to place her unborn child for adoption. Leavitt informed Anne she could deliver her child in any place of her choosing. Anne decided to travel to California, where her attorney was located, and to deliver her child in that state. In early June, 1991, Anne traveled to West Hollywood, California, where she and her mother, Mrs. Conaty, remained until the birth of Anne's child in July, 1991.

During Anne's absence from West Virginia, John sought legal advice regarding his parental rights as the biological father of Anne's unborn child. On May 1, 1991, John's attorney sent a letter to David Lockwood [hereinafter Lockwood], a Huntington, West Virginia, attorney who John's counsel believed represented Anne. This letter indicated John's desire to reconcile with Anne and his intention to withhold his consent from, or otherwise oppose, any attempt by Anne to place their unborn child for adoption. Lockwood, who claimed that he was not representing Anne at this time, gave the letter to defendant Brian P. Conaty [hereinafter Brian], Anne's brother, who is also a Huntington, West Virginia, attorney. Brian then forwarded this letter to Leavitt.

On June 3, 1991, John filed an inverse paternity action [6] in the Circuit Court of Cabell County, West Virginia [hereinafter "West Virginia case 1"], in which he requested a court determination of paternity and an injunction order to prohibit Anne from placing their unborn child for adoption until paternity had been established. John attempted to serve Anne with a copy of this petition at Brian's home, her last residence in West Virginia; her parents' home; and Lockwood's office. Finally, on June 21, 1991, Lockwood faxed a copy of John's inverse paternity petition to Leavitt.

The circuit court held an ex parte hearing on June 26, 1991, to consider John's request for injunctive relief. Lockwood attended the hearing to inform the circuit judge that he did not represent Anne. The circuit judge excused Lockwood from the proceedings, leaving only John and his counsel present at the hearing. Following John's testimony, the circuit judge entered an ex parte temporary injunction order, dated June 26, 1991, "prohibiting [Anne] from placing her unborn *736 child for adoption by anyone through any agency, church, group, attorney, or private household until the paternity of [John] can be established or refuted." The judge also decreed that Anne should be served with the inverse paternity petition and temporary injunction order by publication. Brian was personally served with the inverse paternity petition and temporary injunction order on June 28, 1991. However, on July 16, 1991, Brian filed an affidavit rejecting service on behalf of Anne because she no longer lived at his residence and because he was not her attorney.

At approximately the same time as John was pursuing his inverse paternity action in West Virginia, Anne was continuing with her plans to place her unborn child for adoption. In June, 1991, Leavitt informed Anne that he had located an Oregon couple who wished to adopt her child at birth. [7] Anne executed numerous documents requisite to the contemplated interstate placement, including an interstate compact placement request. On June 10, 1991, Leavitt sent these papers to the state placement coordinator for the state of California who then forwarded the documents to the state of Oregon requesting permission to consummate the placement.

After receiving a copy of John's inverse paternity petition, Leavitt, on approximately July 1, 1991, faxed a copy of the petition to counsel for the prospective adoptive parents in Oregon. Upon learning of the West Virginia litigation, the Oregon couple's attorney suggested that pursuit of this adoption may be risky based upon laws in the state of Oregon concerning adoptions and the registration of biological fathers. [8] Consequently, the Oregon couple withdrew their interstate application to adopt Anne's child. Following this obstacle to the placement of Anne's unborn child, Leavitt subsequently located a couple in Alberta, Canada, whom he felt would be suitable prospective adoptive parents. Accordingly, Anne executed the appropriate documents to effectuate this proposed placement.

On July 24, 1991, Anne delivered a baby boy [hereinafter Baby Boy Conaty] at Cedars-Sinai Medical Center in Los Angeles, California. [9] On July 25, 1991, Anne executed the remaining documents necessary for placement of her child with the Canadian couple. Due to medical complications, the baby was not released from the hospital until July 26, 1991. On that date, the Canadian couple returned to Canada with Baby Boy Conaty. Also, on July 26, 1991, the last published notice of the ex parte temporary injunction order was published in a Huntington, West Virginia, newspaper, thereby completing service by publication on Anne of both the temporary injunction order and the inverse paternity petition, which was published in conjunction with the injunction order. Following the child's birth, Anne traveled to England where she visited with her sister until she returned to Huntington, West Virginia, in November, 1991.

Shortly after the birth of Baby Boy Conaty, John learned of the child's birth and discovered that Mrs. Conaty recently had flown to Los Angeles. Having seen a listing *737 in the yellow pages of the Huntington, West Virginia, telephone book for Leavitt in Beverly Hills, California, [10] John telephoned Leavitt in the hopes that he could assist with his inverse paternity action. Leavitt informed John he was familiar with his case and was unable to discuss it. On August 6, 1991, John's attorney telephoned Leavitt and informed him of the ex parte temporary injunction order. She then followed the telephone call with a letter to Leavitt and enclosed a copy of the inverse paternity petition and temporary injunction order.

Also in August, 1991, John's counsel deposed Brian and Dr. and Mrs. Conaty. Brian initially asserted the attorney-client privilege, based upon his prior representation of Anne in matters unrelated to the adoption of Baby Boy Conaty, in response to questioning about his sister's whereabouts and the birth and subsequent adoptive placement of her child. After the circuit court prohibited Brian from asserting this privilege where no attorney-client relationship, and consequently no attorney-client privilege, existed, he testified at a second deposition. During his second deposition, Brian denied having any knowledge of his sister's newborn child or her whereabouts, [11] despite his earlier role in monitoring the filings of the Circuit Court of Cabell County to locate any lawsuits filed by John against Anne seeking custody of the parties' child.

John's counsel likewise attempted to depose Dr. and Mrs. Conaty to garner information about his infant son. Upon receiving their subpoenas to appear for their depositions, Lr. and Mrs. Conaty asked Brian what action was required on their part. Believing the subpoenas to be a complaint in a lawsuit filed by John, which had been anticipated by Brian, he informed his parents to continue with their plans to vacation in Virginia Beach, Virginia. Consequently, neither Dr. nor Mrs. Conaty appeared for their depositions, and both of them were held in contempt for their nonappearance.

Thereafter, Dr. and Mrs. Conaty appeared at their second scheduled depositions and purged themselves of the contempt charges. Both of these defendants admitted that they had been in California with Anne at the time of her delivery and adoptive placement of Baby Boy Conaty and acknowledged that she had accompanied them on their trip to Virginia Beach. They further indicated that they had last seen Anne on the Friday immediately preceding their deposition testimony when they "let[] her off" at a Lexington, Kentucky, motel upon their return from Virginia Beach. Mrs. Conaty additionally testified that she knew of three airplane tickets to London, England, having been purchased for herself, Dr. Conaty, and Anne, and that she had known since April, 1991, of these travel arrangements. She stated that she and her husband planned to leave for London during the week following their depositions, that they were to see Anne before their flight, but that she did not know Anne's present whereabouts. In sum, both Dr. and Mrs. Conaty denied having any knowledge of the ultimate adoptive placement of Baby Boy Conaty, the location of their daughter, or when Anne could be expected to return to Huntington, West Virginia.

On October 3, 1991, the circuit court entered a default judgment in favor of John in his inverse paternity action, "West Virginia case 1," as a result of Anne's failure to appear. The court "ORDERED that John Woodruff Kessel is legally determined pursuant to West Virginia Code Section 48A-6-1(c) to be the natural father of the infant child born to Anne Gilmore Conaty on or about July 24, 1991[sic] with all the rights and obligations flowing therefrom." Later, on October 17, 1991, John filed a lawsuit, in conjunction with his West Virginia inverse paternity action, in the Superior Court of California for Los Angeles County [hereinafter "California case 1"]. The main purpose of the California litigation was to obtain the *738 depositions of Leavitt and Anne's California physician who had delivered her child.

In November, 1991, John's California counsel deposed Leavitt who asserted the attorney-client privilege in response to questioning. [12] Following this deposition, Leavitt faxed a message to Brian suggesting that Anne retain an experienced litigation attorney in California to protect her interests. Leavitt also warned that John and his counsel should "be prevented from learning any more than they know already for another month if possible." [13] Brian testified that he did not recall having seen this message. Following Leavitt's assertion of the attorney-client privilege, John's California counsel filed a motion to compel him to answer the deposition inquiries. By order dated January 3, 1992, the superior court approved Leavitt's earlier assertion of the privilege and denied the plaintiffs' motion. No further proceedings were held in "California case 1".

Additionally, on approximately November 26, 1991, John filed a civil action in the Superior Court of California for Los Angeles County [hereinafter "California case 2"]. In this case, naming as defendants Anne, Leavitt, and other individuals, John asserted claims for conspiracy, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and child abduction. The named defendants filed a demurrer asserting that John had failed to state a cause of action. On January 3, 1992, John's counsel filed a request to dismiss this case. No further action was taken in "California case 2".

In January, 1992, John continued with his West Virginia litigation in "West Virginia case 1". On January 10, 1992, the circuit judge ordered Anne to authorize the release of her legal and medical records in California. She initially refused to sign the authorizations. Anne later executed the releases when confronted with possible contempt of court charges. Upon signing the authorizations, Anne added the notation "under protest." John notified the circuit court of the protest language, and Anne was again ordered to sign the releases, this time without adding such language. After signing the releases anew, Anne immediately prepared a renunciation of her authorization and faxed her renunciation to Leavitt. She further requested Leavitt to forward the renunciation to Cedars-Sinai Hospital. The circuit court found Anne's renunciations to be in contempt of court and again required her to sign new releases. Anne ultimately executed the releases.

Upon receiving Anne's California medical records, John learned the whereabouts of the Canadian prospective adoptive couple. On approximately March 3, 1992, John, by Canadian counsel, filed a statement of claim, requesting guardianship, and a paternity action in the Court of Queen's Bench of Alberta, Canada, Judicial District of Calgary. Following a hearing, the Canadian trial court entered an order dated June 22, 1992, dismissing John's claims, finding his consent to be unnecessary, and granting the Canadian couple's petition for adoption. [14] John testified that he did not appeal this order or otherwise pursue further legal remedies in Canada because of indications that he would have been required to post a significant bond and reimburse the adoptive couple's expenses if he had been unsuccessful.

*739 Finally, on July 22, 1992, John filed a civil action in the Circuit Court of Cabell County, West Virginia [hereinafter "West Virginia case 2"], which is the subject of this appeal. In this matter, John and his father, Ray Miller Kessel [hereinafter Dr. Kessel], [15] asserted claims against Anne, Dr. and Mrs. Conaty, Brian, and Leavitt for fraud, civil conspiracy, tortious interference with parental relationship, outrage, violation of constitutional rights, and tortious interference with and deprivation of grandparental relationship. Following a trial in November, 1995, the jury, on December 4, 1995, returned a verdict against the defendants on the issues of fraud [16] and tortious interference [17] . The jury further awarded John compensatory damages of $2 million [18] and punitive damages of $5.85 million [19] . From these verdicts, the defendants appeal to this Court. [20]

II.

DISCUSSION OF ISSUES AND STANDARDS OF REVIEW

On appeal to this Court, the defendants assign the following errors: the circuit court lacked personal jurisdiction over defendant Leavitt; John failed to state a claim upon which relief can be granted as to his causes of action for fraud and tortious interference with parental relationship; the circuit court erroneously instructed the jury as to the validity and effect of the ex parte temporary injunction order, the applicability of the Interstate Compact on the Placement of Children (ICPC) and the Uniform Child Custody Jurisdiction Act (UCCJA), the right of a parent to the custody of his/her child, the defendants' intent to violate John's due process and equal protection rights, and the meaning of "contempt of court" and the consideration of legal ethics standards; the circuit court improperly determined that the attorney-client privilege between defendants Leavitt and Anne had been extinguished due to the crime or fraud exception to this privilege; and the jury awarded excessive compensatory and punitive damages. In addition, Dr. Kessel cross-appeals and complains that the circuit court improperly granted the defendants a directed verdict as to his claims regarding his grandparental rights.

During our resolution of the issues raised by the parties, which were previously determined by the jury rendering the verdict in this case, we will be guided by the detailed standards of appellate review applicable to jury verdicts. "`An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421 [, 191 S.E. 550 (1937) ]." Syl. pt. 1, Walker v. Monongahela Power Co., 147 W.Va. 825 , 131 S.E.2d 736 (1963). Additionally,

[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the *740 party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.

Syl. pt. 3, id.

Furthermore, our review of the parties' assignments of error challenging specific legal rulings of the circuit court will be de novo. See, e.g., Syl. pt. 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108 , 492 S.E.2d 167 (1997) ("Questions of law are subject to a de novo review."); Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138 , 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). We turn now to the parties' contentions.

A.

Personal Jurisdiction over Defendant Leavitt

The defendants, Anne, Dr. and Mrs. Conaty, and Brian, first assign as error the circuit court's determination that it had personal jurisdiction over defendant Leavitt. In this manner, the defendants represent that, during the proceedings below, the circuit court found it had personal jurisdiction over Leavitt as a result of his one-time advertisement in the yellow pages of the Huntington, West Virginia, telephone directory. The defendants, however, maintain that this one-time advertisement does not constitute contacts with this State sufficient to confer personal jurisdiction.

They argue further that Leavitt's activities do not satisfy the requirements of the two-part jurisdictional test enunciated in Syllabus Point 5 of Abbott v. Owens-Corning Fiberglas Corp., 191 W.Va. 198 , 444 S.E.2d 285 (1994):

A court must use a two-step approach when analyzing whether personal jurisdiction exists over a foreign corporation or other nonresident. The first step involves determining whether the defendant's actions satisfy our personal jurisdiction statutes set forth in W. Va.Code, 31-1-15 [1984] and W. Va.Code, 56-3-33 [1984]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process.

First, the defendants concede that even if the advertisement amounted to "transacting business" in this State as contemplated by W. Va.Code ž 56-3-33(a)(1) (1984) (Repl.Vol. 1997), the causes of action asserted by John did not arise from this contact as required by W. Va.Code ž 56-3-33(b) (1984) (Repl.Vol. 1997), because the telephone advertisement did not factor into the decision of the Conaty defendants to communicate with defendant Leavitt.

Likewise, the defendants maintain that the second element of the Abbott test cannot be satisfied because assertion of personal jurisdiction over Leavitt offends the protections of federal due process. Citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 , 104 S.Ct. 1868, 1873 , 80 L.Ed.2d 404, 412 (1984) (requiring nonresident defendant to have "continuous and systematic general business contacts" with forum state as prerequisite to finding personal jurisdiction); Syl. pt. 3, in part, Pries v. Watt, 186 W.Va. 49 , 410 S.E.2d 285 (1991) (focusing upon whether nonresident defendant "has purposefully acted to obtain benefits or privileges in the forum state" in determining whether personal jurisdiction is proper).

John responds that the circuit court's assertion of personal jurisdiction over defendant Leavitt was proper because the record evidence demonstrates that Leavitt had more contacts with West Virginia than his one-time telephone advertisement. Among these contacts, John cites defendant Leavitt's direction of the activities of Lockwood and defendant Brian with respect to the various West Virginia court proceedings in the underlying inverse paternity action, and Leavitt's communications with various defendants encouraging their cooperation in expediting the Canadian adoption.

Additionally, John contends that the two factors of the Abbott test are satisfied in this case. First, with respect to the long-arm statute, Leavitt transacted business, contracted to supply services, and caused tortious *741 injury by acts and omissions in this State. Citing Lozinski v. Lozinski, 185 W.Va. 558, 562 , 408 S.E.2d 310, 314 (1991) (defining "`tortious act' as including any act committed in the state which involved a breach of duty to another and resulted in ascertainable damages").

Second, John maintains that personal jurisdiction over Leavitt is appropriate under the federal due process analysis. Citing International Shoe Co. v. Washington, 326 U.S. 310, 316 , 66 S.Ct. 154, 158 , 90 L.Ed. 95, 102 (1945) (requiring, with respect to finding of personal jurisdiction, "certain minimum contacts... such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice'" (citations omitted)); Norfolk S. Ry. Co. v. Maynard, 190 W.Va. 113, 116 , 437 S.E.2d 277, 280 (1993) (recognizing that "[t]he critical element for determining minimum contacts is not the volume of the activity but rather `the quality and nature of the activity'" (citation omitted)); Pries v. Watt, 186 W.Va. at 52 , 410 S.E.2d at 288 (suggesting consideration of various factors to aid in court's assessment of personal jurisdiction). Employing these due process considerations, John urges that Leavitt purposefully availed himself of the benefits of this State because he advertised here and accepted Anne's case knowing her connection to this State. In addition, this State has a substantial interest in hearing this case given Leavitt's alleged disregard for its court's orders and John's rights as a biological father. Lastly, judicial economy supports personal jurisdiction in this State, because, as John claims, Leavitt was not unduly burdened by the West Virginia trial since he employed the same attorney as the other defendants and traveled only once to this State for trial purposes. Citing S.R. v. City of Fairmont, 167 W.Va. 880, 886-87 , 280 S.E.2d 712, 716 (1981) (permitting court to consider interstate nature of suit in determining jurisdictional questions).

In resolving the issue of whether the circuit court properly exercised personal jurisdiction over defendant Leavitt, we are faced with a rather unique situation. The defendant who was most injuriously affected by the circuit court's finding of personal jurisdiction, Leavitt, is no longer before this Court as a party to the instant appeal. At the time this case was submitted on appeal to this Court, defendant Leavitt was requested to post a $7 million bond in the Circuit Court of Cabell County, by order of this Court dated January 16, 1997, which bond was later reduced to $1.1 million, pursuant to our order of February 6, 1997. No bond having been posted, this Court dismissed Leavitt's appeal by order dated March 20, 1997. Thereafter, Leavitt filed a petition for writ of certiorari in the United States Supreme Court to contest our dismissal of his appeal. By decision dated October 6, 1997, the United States Supreme Court denied Leavitt's petition for writ of certiorari. See Leavitt v. Kessel, ___ U.S. ___, 118 S.Ct. 266 , 139 L.Ed.2d 192 (1997).

By dismissing Leavitt's appeal, we effectively have affirmed, as to Leavitt only, those rulings of the lower court which he had attempted to challenge by way of appeal. This Court's authority to dismiss a party's appeal upon his/her failure to satisfy a bond requirement is set forth in Rule 6(d) of the West Virginia Rules of Appellate Procedure:

In civil cases relief available in ... the Supreme Court under this rule [regarding stay of proceedings pending appeal] may be conditioned upon the filing of a bond or other appropriate security in the circuit court, in such amount and upon such conditions as the court granting the stay feels is proper for the protection of the adverse party. The provisions of W. Va.Code, 58-5-14, are applicable.... Failure to execute such bond may be grounds for the dismissal of the appeal.

(Emphasis added). See also W. Va.Code ž 58-5-14 (1995) (Repl.Vol.1997) ("When required by the court, an appeal ... shall not take effect until bond is given by the appellants or petitioners, or one of them, or some other person, in a penalty to be fixed by the court or judge by or in which the appeal ... is allowed ... with condition[.]"); W. Va. Code ž 58-5-16 (1990) (Repl.Vol.1997) ("An appeal ... allowed from ... a final judgment, decree or order shall be dismissed whenever it appears that two months have elapsed since the date when the appeal ... *742 was granted before such bond is given as is required to be given before the appeal ... takes effect."). See generally State v. Legg, 151 W.Va. 401, 407 , 151 S.E.2d 215, 219 (1966) (holding provisions of W. Va.Code ž 58-5-16 to be mandatory); Chenowith v. Keenan, 61 W.Va. 108 , 55 S.E. 991 (1906) (discussing generally effect of dismissal of appeal). Cf. Syl. pt. 1, Lubeck Meat Packing, Inc. v. Motorists Mut. Ins. Co., 179 W.Va. 372 , 369 S.E.2d 223 (1988) ("`Where it appears to the Court upon mature consideration that an appeal presents no substantial issues of fact or law which can be considered fairly raised and where the trial court arrived at a correct result, the appeal will be dismissed as improvidently awarded and the judgment of the circuit court will be summarily affirmed. ` Syllabus, Napier v. Plymale, 167 W.Va. 372 , 280 S.E.2d 122 (1981)." (emphasis added)).

Based upon these many authorities, we hold that when a party appeals a lower court's ruling to the Supreme Court of Appeals of West Virginia and he/she is required to post an appeal bond, his/her failure to post such bond will result in the dismissal of that party's appeal and the consequent affirmance, as to that party, of the lower court's ruling. Thus, we affirm, as to Leavitt, the appealable order of the Circuit Court of Cabell County.

As a result of the dismissal of Leavitt's appeal, and the attendant affirmance of the lower court's rulings as to Leavitt, it may be said that Leavitt effectively has waived his right to challenge the circuit court's finding that he was properly within that court's personal jurisdiction. See, e.g., Syl. pt. 4, in part, West Virginia Secondary Sch. Activities Comm'n v. Wagner, 143 W.Va. 508 , 102 S.E.2d 901 (1958) ("Jurisdiction of the person may be conferred by consent of the parties or the lack of such jurisdiction may be waived. " (emphasis added)). [21] Because defendant Leavitt has waived his right to challenge the circuit court's finding of personal jurisdiction and because he is not presently before this Court as a party to the instant appeal, he cannot assert this, or any other, ground of error.

Our resolution of this issue is not yet complete, however, as the remaining defendants attempt to ride on Leavitt's coattails by also challenging the circuit court's assertion of personal jurisdiction over their codefendant, Leavitt. [22] In this regard, the remaining defendants have argued that "[a]ll of [sic] Defendants were prejudiced by the trial court's assertion of personal jurisdiction over Defendant Leavitt.... The Conaty Defendants were prejudiced by being put on trial accused of conspiring with a codefendant who had never been to West Virginia and was a Beverly Hills lawyer." The Conaty defendants allege prejudice arising from the jury's verdict finding both defendant Leavitt and the remaining defendants liable for fraud and tortious interference and the jury's assessment of damages for these transgressions. Apart from these assertions, though, the remaining defendants cite no authority for their proposition that they also should be permitted to challenge the circuit court's assertion of personal jurisdiction over Leavitt.

Neither can we discern any authority to permit a defendant to challenge the personal jurisdiction of a codefendant when that codefendant, by his/her acts or omissions, has waived his/her right to challenge such personal jurisdiction. On the contrary,

*743 [t]raditionally, courts have been reluctant to allow persons to claim standing to vindicate the rights of a third party on the grounds that third parties are generally the most effective advocates of their own rights and that such litigation will result in an unnecessary adjudication of rights which the holder either does not wish to assert or will be able to enjoy regardless of the outcome of the case.

Snyder v. Callaghan, 168 W.Va. 265, 279 , 284 S.E.2d 241, 250 (1981) (emphasis added) (citation omitted). Furthermore, the United States Supreme Court has announced a specific "prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves." Warth v. Seldin, 422 U.S. 490, 509 , 95 S.Ct. 2197, 2210 , 45 L.Ed.2d 343, 361 (1975). [23]

Therefore, we hold that an appellant/defendant may not assign as error a circuit court's affirmative assertion of personal jurisdiction over a coappellant/codefendant when the coappellant/codefendant either has not challenged the assertion of personal jurisdiction over him/her or has otherwise, by his/her acts and/or omissions, waived his/her right to challenge the personal jurisdiction ruling. Accordingly, we find that the remaining defendants are not proper parties to challenge the circuit court's exercise of personal jurisdiction over defendant Leavitt. For this reason, and as a result of our dismissal of Leavitt's appeal, we leave undisturbed the circuit court's ruling in this regard.

B.

Statement of Claim Upon Which Relief Can Be Granted

The defendants' second assignment of error raises the question of whether John stated a claim upon which relief can be granted with respect to his causes of action for fraud and tortious interference with his parental relationship with Baby Boy Conaty. In this regard, the defendants ostensibly rely upon Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, which permits a defendant to a civil action to move for dismissal of the case if the plaintiff "fail[s] to state a claim upon which relief can be granted." During the proceedings below, the circuit court reviewed the defendants' challenges to the two causes of action asserted by John and determined that John had stated claims upon which he could have been granted relief.

We have instructed circuit courts, when deciding a Rule 12(b)(6) motion to dismiss for failure to state a valid claim, to "constru[e] the factual allegations in the light most favorable to the plaintiffs." Murphy v. Smallridge, 196 W.Va. 35, 36 , 468 S.E.2d 167, 168 (1996). In this regard, "[d]ismissal for failure to state a claim is proper where `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 , 104 S.Ct. 2229, 2232 , 81 L.Ed.2d 59, 65 (1984)) (additional citation omitted). Stated otherwise,

"[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl. Pt. 3, Chapman v. Kane Transfer Company, [Inc.], [160] W. Va. [530,] 236 S.E.2d 207 (1977) [( citing ] Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 ,[ 102,] 2 L.Ed.2d 80 [, 84] (1957)[) ]. *744 Syl., John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603 , 245 S.E.2d 157 (1978). See also id. at 606 , 245 S.E.2d at 159 ("The trial court should not dismiss a complaint merely because it doubts that the plaintiff will prevail in the action").

In addition to these principles permitting the circuit court to evaluate the adequacy of the complaint's factual allegations, all decisions of Rule 12(b)(6) motions are governed by "the liberal policy of the rules of pleading with regard to the construction of plaintiff's complaint[] and ... the policy of the rules favoring the determination of actions on the merits." John W. Lodge at 606, 245 S.E.2d at 159 . Accordingly, we have directed that "the motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted." Id.

When a circuit court grants a Rule 12(b)(6) motion and dismisses a complaint for failure to state a claim upon which relief can be granted, appellate review of the circuit court's dismissal of the complaint is de novo. See, e.g., Shaffer v. Charleston Area Med. Ctr., Inc., 199 W.Va. 428, 433 , 485 S.E.2d 12, 17 (1997) ("Where matters heard on a 12(b)(6) motion do not extend outside the pleading, our standard of review from an order dismissing a claim under Rule 12(b)(6) is de novo[.]" (citation omitted)); Murphy v. Smallridge, 196 W.Va. at 36 , 468 S.E.2d at 168 ("We review de novo a dismissal under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure[.]" (citation omitted)).

By contrast, a circuit court's denial of a Rule 12(b)(6) motion to dismiss, which permits the plaintiff's case to proceed on the stated causes of action, is less often the subject of appellate review. "Ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable." Syl. pt. 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239 , 460 S.E.2d 54 (1995) (emphasis added). See also Hutchison v. City of Huntington, 198 W.Va. 139, 147 , 479 S.E.2d 649, 657 (1996) (acknowledging that "[o]rdinarily, this Court does not entertain nor discuss a denial of a motion for failure to state a claim under W. Va. R. Civ. P. Rule 12(b)(6), in that such an order is interlocutory in nature").

Nevertheless, it is possible, as is evidenced by the case sub judice, for a party, whose Rule 12(b)(6) motion was denied by the circuit court, to ultimately raise this issue on appeal, not as an interlocutory order but as part of the final judgment underlying his/ her appeal. Thus, "[w]hen a party, as part of an appeal from a final judgment, assigns as error a circuit court's denial of a motion to dismiss, the circuit court's disposition of the motion to dismiss will be reviewed de novo. " Syl. pt. 4, Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228 , 503 S.E.2d 541 (1998). Applying this de novo standard of review, we turn now to the defendants' arguments alleging that John failed to state claims upon which relief can be granted for fraud and tortious interference with parental relationship.

1. Fraud

The defendants first contend that John failed to state a claim for fraud upon which relief can be granted because his complaint failed to specifically plead a cause of action for fraud. In this regard, the defendants suggest that the circuit court erred by determining that John's complaint contained sufficient allegations of fraud, as required by Rule 9(b) of the West Virginia Rules of Civil Procedure: "[i]n all averments of fraud ..., the circumstances constituting fraud ... shall be stated with particularity." The defendants further submit that "[t]he failure to plead particularly the circumstances constituting fraud ... inhibits full review of the substance of the claim of fraud by this Court on appeal [and] precludes the introduction of evidence supportive of any general allegation of fraud contained in the complaint[.]" Syl. pt. 4, Croston v. Emax Oil Co., 195 W.Va. 86 , 464 S.E.2d 728 (1995). See also Syl. pt. 1, in part, Hager v. Exxon Corp., 161 W.Va. 278 , 241 S.E.2d 920 (1978) ("[F]raud or mistake must be alleged in the appropriate pleading with particularity[,] and the failure to do so precludes the offer of proof thereof during the trial."). The defendants also complain *745 that John's complaint did not contain the words "fraud," "misrepresentation," or "deceit" in reference to his averments of their allegedly fraudulent conduct.

In addition, the defendants suggest that John's claim for fraud was not proper because they cannot be held liable for their allegedly fraudulent conduct. The defendants assert that one may hold another liable for fraud only if the allegedly liable party has a duty to the party seeking to impose such liability. Here, the defendants state that John is attempting to impose liability on them for their silence and concealment of certain information. Yet, the defendants maintain that, because they owed no duty to John to reveal such information, imposition of liability upon them because their refusal to speak was "fraudulent" is improper. Citing Restatement (Second) of Torts ž 551(1) (1976) ("One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting ... is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.").

John answers that he did, in fact, state a valid cause of action for fraud. In this regard, John submits that it is not necessary to use the specific words "fraud" or "misrepresent" in a complaint asserting a claim for fraud in order to comply with the pleading requirements of Rule 9(b). Rather, it is essential only to plead relevant facts with such specificity and particularity as to imply a fraud has been committed or from which a conclusion of fraud necessarily results. Citing 37 Am.Jur.2d Fraud and Deceit ž 424, at 577-78 (1968).

Furthermore, John urges that the defendants had a duty not to conceal from him the whereabouts of his son and advocates the recognition of a cause of action for fraud under the particular circumstances of this case. He indicates that liability for fraudulent conduct issues from an act, omission, or concealment involving the breach of a legal duty, trust, or confidence. Such fraudulent conduct must also produce an injury to the aggrieved party or result in the acquisition of an undue or unconscientious advantage over the aggrieved party. Citing Stanley v. Sewell Coal Co., 169 W.Va. 72 , 285 S.E.2d 679 (1981); Miller v. Huntington & Ohio Bridge Co., 123 W.Va. 320 , 15 S.E.2d 687 (1941); Dickel v. Smith, 38 W.Va. 635 , 18 S.E. 721 (1893); Hulings v. Hulings Lumber Co., 38 W.Va. 351 , 18 S.E. 620 (1893). Fraud also may arise from the active concealment of information or as a result of voluntary misstatements in response to inquiries for information. Citing Frazier v. Brewer, 52 W.Va. 306 , 43 S.E. 110 (1903) (finding party liable for fraudulent concealment if his/her willful concealment and suppression of facts causes another's detrimental reliance thereon). John suggests that the defendants committed fraudulent acts by withholding and misrepresenting information about Baby Boy Conaty thereby preventing him from exercising his parental rights.

Finally, John characterizes the defendants' actions in concealing information about his child as a type of civil conspiracy. Citing Syl. pt. 1, in part, Dixon v. American Indus. Leasing Co., 162 W.Va. 832 , 253 S.E.2d 150 (1979) ("In order for civil conspiracy to be actionable it must be proved that the defendants have committed some wrongful act or have committed a lawful act in an unlawful manner to the injury of the plaintiff[.]"). Typically, the acts of one co-conspirator are attributable to all persons who participate in the conspiracy. Citing Wells v. Smith, 171 W.Va. 97 , 297 S.E.2d 872 (1982), overruled in part on other grounds by Garnes v. Fleming Landfill, Inc., 186 W.Va. 656 , 413 S.E.2d 897 (1991). Thus, John maintains that his cause of action alleging fraud perpetrated by all of the named defendants is proper since all conspiring defendants are accountable for the fraudulent acts of the conspiracy.

Prior to reaching the precise issue of whether John adequately stated a valid cause of action for fraud, we must first examine the rudimentary foundation upon which John rests his claim. It is imperative to note at the outset that a woman possesses a myriad of choices with respect to her personal reproductive *746 decisions. [24] Therefore, the various decisions that Anne made concerning the birth and adoptive placement of Baby Boy Conaty were squarely within her constitutionally protected decisional rights. However, we must not overlook John's rights as the father of this child.

While, historically, an unwed biological mother possessed a superior right to the custody of her child born without the benefit of marriage, such an automatic preference is no longer a settled and unyielding rule. See, e.g., State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 631 , 474 S.E.2d 554, 561 (1996) (noting that the "liberty interest" protected by the due process clause "includes a parent's right to establish and preserve relationships with his or her children, even if they are born outside the traditional family" (emphasis added) (citations omitted)); Syl. pt. 1, Honaker v. Burnside, 182 W.Va. 448 , 388 S.E.2d 322 (1989) (recognizing parent's right to the custody of his/her child absent finding that parent is unfit or has waived custodial rights); Syl. pt. 1, In re Willis, 157 W.Va. 225 , 207 S.E.2d 129 (1973) (holding that right of parent to custody of his/her child is paramount to custodial rights of all other persons). [25] Instead, an unwed biological father has a judicially recognized and constitutionally protected inchoate right to establish a parent-child relationship with his child provided he satisfies certain criteria evidencing his intent to assume the full responsibilities of parenthood. Lehr v. Robertson, 463 U.S. 248, 257 , 103 S.Ct. 2985, 2991 , 77 L.Ed.2d 614, 624 (1983) ("[T]he rights of the parents are a counterpart of the responsibilities they have assumed."); State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 632 , 474 S.E.2d 554, 562 (1996) ("In our opinion, the strength of a parent's bond with his or her child is not dependent upon some official or traditional arrangement; rather, the strength derives from the parent's personal and emotional investment and the relationship that develops from that investment.").

Specifically,

[w]hen an unwed father demonstrates a full commitment to the responsibilities of *747 parenthood by "com[ing] forward to participate in the rearing of his child," Caban [ v. Mohammed ], 441 U.S. [380,] 392, [ 99 S.Ct. 1760, 1768 , 60 L.Ed.2d 297, 307 (1979),] his interest in personal contact with his child acquires substantial protection under the Due Process Clause.[ [26] ] At that point it may be said that he "act[s] as a father toward his children." Id., at 389, n. 7, 99 S.Ct., at 1766, n. 7 [, 60 L.Ed.2d, at 305, n. 7 ]. But the mere existence of a biological link does not merit equivalent constitutional protection.... "[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in `promot[ing] a way of life' through the instruction of children ... as well as from the fact of blood relationship." Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 , [ 97 S.Ct. 2094, 2109-2110 , 53 L.Ed.2d 14, 35 ] (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233 [, 92 S.Ct. 1526, 1541-1542 , 32 L.Ed.2d 15, 34-35 ] (1972)).

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

Lehr v. Robertson, 463 U.S. at 261-62 , 103 S.Ct. at 2993-94 , 77 L.Ed.2d at 626-27 (footnotes omitted).

This Court, in echoing the pronouncement of the United States Supreme Court, likewise has identified an unwed biological father's interest in establishing a relationship with his child:

Although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause in Section 10 of Article III of the West Virginia Constitution.[ [27] ]

Syl. pt. 2, State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624 , 474 S.E.2d 554 . See also State ex rel. Roy Allen S., 196 W.Va. at 638 , 474 S.E.2d at 568 (directing that "it is highly relevant ... to consider ... whether the putative [biological] father was dilatory in grasping the opportunity to assert his parental rights and responsibilities"). [28] *748

*749 The circumstances of the instant appeal, though, are somewhat unusual in that, allegedly as a result of the defendants' actions, John was unable to assert his paternal rights by establishing a parental relationship with Baby Boy Conaty. Because the child was placed for adoption with a Canadian family almost immediately after his birth, John was not permitted the opportunity to see or otherwise visit with his son, much less provide for his support and otherwise fulfill his parental obligations. Several courts have recognized that when the child with respect to whom a father attempts to assert his parental rights is a newborn infant, a slightly modified inquiry is appropriate to determine whether the father has "grasped the opportunity" to establish a parent-child relationship.

Thus, where an unwed biological mother decided to place her newborn child for adoption immediately after birth, thereby precluding the child's unwed biological father from establishing a relationship with his child, the Supreme Court of Louisiana determined that " if the father appears and demonstrates that he is fully committed to his parental responsibilities and has grasped the opportunity to commence a relationship with his [recently born] child, the court must uphold his parental rights[.]" In re Adoption of B.G.S., 556 So.2d 545, 558-59 (La.1990) (emphasis added).

Also acknowledging the difficulty which an unwed biological father may have in asserting his paternal rights when his parental agenda conflicts with that of the unwed biological mother, the District of Columbia Court of Appeals decided that "when an unwed mother has relinquished her right to custody of a child at birth for adoption by strangers, the unwed father's interest in developing a custodial relationship with his child is entitled to substantial constitutional protection if he has early on, and continually, done all that he could reasonably have been expected to do under the circumstances to pursue that interest. " Appeal of H.R., 581 A.2d 1141, 1162-63 (D.C.App.1990) (per curiam) (separate opinion of Ferren, Assoc. J.) (emphasis added) (citations omitted). [29] See *750 also Petition of Kirchner, 164 Ill.2d 468, 487-88 , 208 Ill.Dec. 268, 276 , 649 N.E.2d 324, 333 (1995) (per curiam) (discussing "an unwed father's rights regarding an infant placed for adoption at birth who seeks to raise his child but is prevented from doing so through deception" and announcing that "fathers ... whose parental rights are not properly terminated and who, through deceit, are kept from assuming responsibility for and developing a relationship with their children, are entitled to the same due process rights as fathers who actually are given an opportunity and do develop this relationship"). Cf. Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 206 (Utah 1984) (dictating that unwed biological father must "file a timely notice of his claim to paternity" to protect "his parental rights in [his] newborn infant"). [30] Thus, it appears that John would have had a valid basis for asserting a constitutionally protected right to establish and maintain a parent-child relationship with his son despite his inability to have his physical custody or to visit with him prior to his pre-adoptive placement into Canada. [31]

*751 Turning now to the precise issue at hand, we must determine whether the circuit court erred in upholding John's cause of action for fraud. [32] John contends that but for the defendants' actions he would have been able to demonstrate his commitment to the responsibilities of parenthood so as to permit him to establish and maintain a relationship with Baby Boy Conaty. While we have noted the prominence of Anne's decisional *752 rights, we must also consider the importance of John's parental rights. [33] On the one hand, "[i]t is a principle of the common law that wherever the law gives a right ..., it also gives a remedy." 1 Am.Jur.2d Actions ž 41, at 749-50 (1994) (citing Wennerholm v. Stanford Univ. School of Med., 20 Cal.2d 713 , 128 P.2d 522 (1942); Perkins v. Pare, 352 So.2d 64 (Fla.Dist.Ct.App.1977); Rozell v. Rozell, 281 N.Y. 106 , 22 N.E.2d 254 (1939)). On the other hand, the mere impingement of a legal right is not enough to create an automatic right of recovery in tort. "There must also be a violation of a duty recognized by law[.]" West Virginia Transp. Co. v. Standard Oil Co., 50 W.Va. 611, 615 , 40 S.E. 591, 592 (1902). See, e.g., 74 Am.Jur.2d Torts ž 9, at 627 n. 81 (1974) (impliedly creating duty to refrain from disturbing another's exercise of his/her legal rights by recognizing that "[o]ne who does anything, or permits anything to be done, without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights, is absolutely liable" (citing Taylor v. City of Cincinnati, 143 Ohio St. 426 , 28 Ohio Op. 369 , 55 N.E.2d 724 (1944))). With these principles in mind, we look to the law of fraud to determine whether John has stated a valid cause of action.

Generally speaking, "[f]raud has been defined as including all acts, omissions, and concealments which involve a breach of legal duty, trust or confidence justly reposed, and which are injurious to another, or by which undue and unconscientious advantage is taken of another." Stanley v. Sewell Coal Co., 169 W.Va. 72, 76 , 285 S.E.2d 679, 682 (1981) (citations omitted). Accord Dickel v. Smith, 38 W.Va. 635, 641 , 18 S.E. 721, 723 (1893). More precisely,

"`"[t]he essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it." Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272 , 280 S.E.2d 66 (1981).' Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340 , 368 S.E.2d 710 (1988)." Syllabus point 2, Bowling v. Ansted Chrysler-Plymouth-Dodge, [Inc.], 188 W.Va. 468 , 425 S.E.2d 144 (1992).

Syl. pt. 3, Cordial v. Ernst & Young, 199 W.Va. 119 , 483 S.E.2d 248 (1996). Accord Teter v. Old Colony Co., 190 W.Va. 711, 717 , 441 S.E.2d 728, 734 (1994); Powell v. Time Ins. Co., 181 W.Va. 289, 296 , 382 S.E.2d 342, 349 (1989).

Perhaps more instructive to the resolution of this issue is our acknowledgment that "`an action for fraud can arise by the concealment of truth.'" Teter, 190 W.Va. at 717 , 441 S.E.2d at 734 (quoting Thacker v. Tyree, 171 W.Va. 110, 113 , 297 S.E.2d 885, 888 (1982)). Such a basis for a claim of fraud is possible because "[f]raud is the concealment of the truth, just as much as it is the utterance of a falsehood." Frazier v. Brewer, 52 W.Va. 306, 310 , 43 S.E. 110, 111 (1902). See also Van Deusen v. Snead, 247 Va. 324, 328 , 441 S.E.2d 207, 209 (1994) ("`[C]oncealment always involves deliberate nondisclosure designed to prevent another from learning the truth. A ... party's willful nondisclosure of a material fact that he knows is unknown to the other party may evince an intent to practice actual fraud.'" *753 (quoting Spence v. Griffin, 236 Va. 21, 28 , 372 S.E.2d 595, 598-99 (1988))).

In this vein, the Second Restatement of Torts recognizes a cause of action for fraudulent concealment: "[Any person] ... who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering." Restatement (Second) of Torts ž 550 (1976). Explaining the types of wrongful behavior contemplated by this section, Comment b to ž 550 states that fraudulent concealment may arise

when the defendant successfully prevents the plaintiff from making an investigation that he would otherwise have made, and which, if made, would have disclosed the facts; or when the defendant frustrates an investigation .... Even a false denial of knowledge or information by one party to a transaction, who is in possession of the facts, may subject him to liability as fully as if he had expressly misstated the facts, if its effect upon the plaintiff is to lead him to believe that the facts do not exist or cannot be discovered.

(Emphasis added). Thus, the active concealment of information from a party with the intent to thwart that party's efforts to conduct an investigation, relating to such information, constitutes actionable fraudulent concealment. Lock v. Schreppler, 426 A.2d 856, 860 (Del.Super.1981) (recognizing cause of action for fraudulent concealment similar to that provided by ž 550: "For plaintiffs to recover damages for fraudulent concealment, plaintiffs must demonstrate that defendant took some action affirmative in nature designed or intended to prevent, and which does prevent, the discovery of facts giving rise to the fraud claim, some artifice to prevent knowledge of the facts or some representation intended to exclude suspicion and prevent inquiry." (citation omitted)), superseded by statute as noted in Eastern Commercial Realty Corp. v. Fusco, 654 A.2d 833 (Del.Supr.Ct.1995). [34]

In framing his cause of action for fraud, John also has alleged that the defendants' fraudulent conduct constituted a civil conspiracy. The law of this State recognizes a cause of action sounding in civil conspiracy. At its most fundamental level, a "civil conspiracy" is "a combination to commit a tort." State ex rel. Myers v. Wood, 154 W.Va. 431, 442 , 175 S.E.2d 637, 645 (1970) (citing 15A C.J.S. Conspiracy ž 1 (1967)). In Dixon v. *754 American Indus. Leasing Co., 162 W.Va. 832, 834 , 253 S.E.2d 150, 152 (1979), we provided a more detailed definition of this theory of liability:

[A] civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff.

(Citing 15A C.J.S. Conspiracy ž 1(1) and 16 Am.Jur.2d Conspiracy ž 44). Given the tort-based liability of participants in a civil conspiracy, a plaintiff can maintain such a claim provided he/she satisfies the enumerated standard: "In order for civil conspiracy to be actionable it must be proved that the defendants have committed some wrongful act or have committed a lawful act in an unlawful manner to the injury of the plaintiff[.]" Syl. pt. 1, in part, Dixon v. American Indus. Leasing Co., 162 W.Va. 832 , 253 S.E.2d 150 . See also Syl. pt. 7, Cook v. Heck's Inc., 176 W.Va. 368 , 342 S.E.2d 453 (1986) (same). Cf. Syl. pt. 3, West Virginia Transp. Co. v. Standard Oil Co., 50 W.Va. 611 , 40 S.E. 591 (1901) ("Where several combine and agree to do a lawful act, violative of no duty to another due from them, it is not an unlawful conspiracy subjecting them to an action by him, though the act injure him, and was so intended."); Syl. pt. 2, Porter v. Mack, 50 W.Va. 581 , 40 S.E. 459 (1901) ("There can be no conspiracy to do that which is lawful in a lawful manner.").

Additionally, individuals who have conspired with one another to orchestrate and/or carry out a fraudulent plan or scheme can be held liable for their conduct. See 37 Am. Jur.2d Fraud and Deceit ž 301, at 397 (1968) (stating that "everyone who engages in a fraudulent scheme forfeits all right to protection, either at law or in equity" (citing Densmore v. County Court, 106 W.Va. 317 , 145 S.E. 641 (1928))); 37 Am.Jur.2d Fraud and Deceit ž 305, at 403 & 405 (1968) (noting that relief from fraud may be had only against those who were "parties to the fraud," but explaining that "in order to establish liability, any person or persons sought to be charged need not have benefited from the transaction, have had any interest therein, or have colluded with the person benefited"; recognizing further that "[o]ne who participates in a fraud is of course guilty of fraud, and one who, with knowledge of the facts, assists another in the perpetration of a fraud is equally guilty" (footnotes omitted) (citing Lincoln v. Claflin, 74 U.S. 132 , 7 Wall. 132 , 19 L.Ed. 106 (1868))). See also Frazier v. Brewer, 52 W.Va. at 310 , 43 S.E. at 111 ("He who adopts the results adopts also the means by which they are brought about.").

Having enunciated these general standards, which permit the assignment of liability for fraudulent conduct or concealment, we now look to John's specific cause of action: whether the defendants are liable to John for their alleged fraudulent concealment of information in response to inquiries about the post-birth whereabouts of his son. We observe that not only is this asserted cause of action novel to the jurisprudence of this State, but it appears that the courts of no other states have addressed directly whether such a claim may be maintained.

In some decisions, while a specific cause of action for fraud has been asserted by a father against those who have allegedly deprived him of his child, the courts have adeptly avoided a direct resolution of the validity of such a claim. For example, in Daoud v. DeLeau, 455 Mich. 181 , 565 N.W.2d 639 (1997) (per curiam), the biological father brought a cause of action against his child's biological mother and the adoption agency claiming that they had fraudulently deprived him of a relationship with his child by placing the infant for adoption, unbeknownst to the biological father. The court, determining that the basis of the father's fraud claim was perjured testimony presented during the adoption proceedings, declined to rule upon the validity of the father's cause of action for fraud, finding instead that he sought relief from perjured testimony, which relief was limited to that provided in the applicable rules governing court proceedings in general. Id.

Similarly, the court in Larson v. Dunn, 449 N.W.2d 751 (Minn.App.), aff'd in part, rev'd in part, 460 N.W.2d 39 (Minn.1990), though *755 squarely confronted with a father's claim of fraudulent concealment of his daughter's whereabouts and information pertaining to her well-being, mechanically affirmed the trial court's dismissal of this claim without explanation. Additionally, in McGrady v. Rosenbaum, 62 Misc.2d 182 , 308 N.Y.S.2d 181 (1970), aff'd, 37 A.D.2d 917 , 324 N.Y.S.2d 876 (1971), the court found that the father did not have a redressable claim for wrongful interference with his visitation rights where his ex-wife, the child's mother, had been granted custody of the parties' child by a presumably valid court order. Because he could not maintain his main cause of action for interference, the court likewise determined that his fraud claims, based upon the manner in which the interference allegedly had been perpetrated, also were without merit. Id. Accord Copeland v. Delvaux, 89 Ohio App.3d 1 , 623 N.E.2d 569 (1993) (per curiam) (affirming lower court's ruling, wherein court determined that applicable statute of limitations barred unwed biological father's claim for fraudulent adoption).

Other decisions, though involving issues of fraud, have not had a direct opportunity to resolve the issue of whether civil liability may be imposed upon one fraudulently concealing information about a child from that child's parent. This line of cases instead reviews whether the fraud alleged to have facilitated the procurement of an adoption decree is such as to permit the adoption to be set aside. The court in In the Matter of the Adoption of Baby Girl S., 141 Misc.2d 905 , 535 N.Y.S.2d 676 (1988), aff'd, 150 A.D.2d 993 , 543 N.Y.S.2d 602 (1989), dismissed the adoption petition after finding that

[t]he record establishes that this [adoption] proceeding is permeated with fraud and misrepresentation. Each of the parties [the mother, the prospective adoptive parents, and the attorney representing both the mother and the prospective adoptive parents], with the exception of [the unwed biological father], had an agenda not revealed in the [adoption] papers and abused the judicial process to achieve it.

Id., 141 Misc.2d at 912 , 535 N.Y.S.2d at 680 . Nowhere in the opinion, though, did the court indicate whether the father would have a separate cause of action against the defendants for their fraudulent conduct.

In an analogous case, the court in Wade v. Geren, 743 P.2d 1070 (Okla.1987), vacated an adoption decree based upon fraudulent representations concerning the identity of the unwed biological father made by the child's maternal grandparents, who sought her adoption. Accord Petition of Doe, 159 Ill.2d 347, 351 , 202 Ill.Dec. 535, 536 , 638 N.E.2d 181, 182 (1994) (invalidating adoption and commenting "the fault here lies initially with the mother, who fraudulently tried to deprive the father of his rights, and secondly, with the adoptive parents and their attorney, who proceeded with the adoption when they knew that a real father was out there who had been denied knowledge of his baby's existence"); In re Adoption of Murphy, 53 Ohio App.3d 14, 18 , 557 N.E.2d 827, 832 (1988) (invalidating adoption proceeding because "actionable fraud attended the placement and initial adoption proceedings" of unwed biological father's child). Cf. Robert O. v. Russell K., 80 N.Y.2d 254 , 590 N.Y.S.2d 37 , 604 N.E.2d 99 (1992) (declining to vacate adoption, which unwed biological father claimed had been fraudulently obtained, because record did not evince any attempts by unwed biological mother to deceptively conceal her pregnancy from the child's father); In re Adoption of Hart, 62 Ohio App.3d 544 , 577 N.E.2d 77 (1989) (refusing to dismiss adoption petition as evidence did not indicate that adoptive parents had fraudulently concealed from court identity of unwed biological father).

Despite the lack of precedent recognizing a claim based in tort and sounding in fraud in circumstances fairly analogous to those underlying the instant appeal, this jurisprudential absence does not, alone, foreclose our recognition of such a claim. "As previously stated, ... a lack of precedentÔÇö standing aloneÔÇöis an insufficient reason to deny a cause of action." Farley v. Sartin, 195 W.Va. 671, 682 , 466 S.E.2d 522, 533 (1995) (footnote omitted). Notwithstanding an unwed biological father's responsibility to affirmatively protect his own rights, by "grasping the opportunity" to demonstrate his commitment to assuming parental responsibility *756 for his child, we cannot condone the actions of the defendants in this case who, by their conduct, wrongfully interfered with John's ability to establish and assert his parental rights. Accordingly, we hold that the instant a child is born, both unwed biological parents have a right to establish a parent-child relationship with their child. To preserve his parental interest vis-a-vis his newborn child, an unwed biological father must, upon learning of the existence of his child, demonstrate his commitment to assume the responsibilities of parenthood by coming forward to participate in the care, rearing, and support of his newborn child and by commencing to establish a meaningful parent-child relationship with his child. [35]

Further, where a person has knowledge of information concerning a newborn child's birth or physical location, or indicating where and in whose care the child may be found, and the child's parent [36] inquires of such person regarding his/her child's birth or physical location, and/or where and in whose care his/her child may be found, such person may be held liable for fraudulently concealing information if he/she affirmatively, intentionally, and willfully fails to provide such information to the child's parent pursuant to his/her request for such information and such concealment unduly hinders or otherwise irreparably harms the parent's ability to establish a parent-child relationship with his/her child. Additionally, we hold that any person or persons who plot, plan, scheme, or otherwise conspire to affirmatively, intentionally, and willfully conceal information regarding a newborn child's birth or physical location, or indicating where and in whose care the child may be found, in response to inquiries by the child's parent for such information, may be held liable for his/ her or their participation in such civil conspiracy. [37]

Finding that John does, in fact, have a cause of action against the defendants for their alleged concealment of information regarding Baby Boy Conaty, we must now ascertain whether the allegations in John's complaint were sufficient to state such a claim. Typically, "[a] pleading which sets forth a claim for relief ... [must] contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." W. Va. *757 R. Civ. P. Rule 8(a). However, when a party alleges that he/she has been injured by the fraud or fraudulent conduct of another, "the circumstances constituting fraud ... [must] be stated with particularity." W. Va. R. Civ. P. Rule 9(b). See also Funeral Serv. by Gregory, Inc. v. Bluefield Community Hosp., 186 W.Va. 424, 430 , 413 S.E.2d 79, 85 (1991) (instructing that "in order to establish fraud, the circumstances must be clearly alleged and proved"), overruled on other grounds by Courtney v. Courtney, 190 W.Va. 126 , 437 S.E.2d 436 (1993); Syl. pt. 1, in part, Hager v. Exxon Corp., 161 W.Va. 278 , 241 S.E.2d 920 (1978) ("[F]raud or mistake must be alleged in the appropriate pleading with particularity[,] and the failure to do so precludes the offer of proof thereof during the trial.").

The reason for this deviation from the general pleading requirements when fraud is charged is both to allow the party alleged to have committed fraud to defend such charges and to permit the tribunal hearing the matter to conduct a full review of the complaining party's claims. Syl. pt. 4, in part, Croston v. Emax Oil Co., 195 W.Va. 86 , 464 S.E.2d 728 (1995) ("The failure to plead particularly the circumstances constituting fraud not only inhibits full review of the substance of the claim of fraud by this Court on appeal ...; such failure also precludes the introduction of evidence supportive of any general allegation of fraud contained in the complaint[.]").

Nevertheless, the requirement that fraud be "stated with particularity" does not automatically render a complaint fatally flawed if the magic word "fraud" has not been invoked. While certainly the better practice when stating a cause of action for fraud is to include the word "fraud" in the complaint, thereby ensuring that both the defendant and the court are aware of the claim asserted, the complaint generally will be deemed sufficient so long as a cause of action for fraud may be discerned from the allegations contained therein.

Fraud may be well pleaded even though the conduct referred to is not alleged expressly to be "fraudulent," provided that the facts alleged are such as constitute fraud in themselves, or are facts from which fraud will be necessarily implied. The acts charged are not less fraudulent because the word "fraud" or "fraudulent" is not employed by the pleader in characterizing them. In other words, an allegation of facts from which the conclusion of fraud necessarily results is sufficient.

37 Am.Jur.2d Fraud and Deceit ž 424, at 577-78 (1968) (footnotes omitted).

Reviewing the complaint filed by John in the circuit court, we initially note that the use of the word "fraud" or "fraudulent" to describe the conduct complained of would have been preferable. Nevertheless, we conclude that the complaint's allegations set forth sufficient facts from which a jury could have found fraudulent conduct to have been committed by the defendants. Thus, we find that the averments charging that the defendants intentionally, purposefully, and maliciously prevented John from obtaining any pertinent information regarding Baby Boy Conaty's birth or subsequent pre-adoptive placement and that they continued a scheme to impair and frustrate his efforts to ascertain the whereabouts of his son sufficiently stated a cause of action for fraud. Accordingly, we find that the circuit court did not err in upholding John's claim. [38]

2. Tortious Interference with Parental Relationship

The defendants next contest the sufficiency of John's claim alleging that they tortiously interfered with his parental relationship with Baby Boy Conaty. They urge *758 that the circuit court erred in concluding that John's complaint sufficiently stated grounds for relief on this theory because the court misstated the applicable law. Acknowledging John's purported reliance on the language of Section 700 of the Second Restatement of Torts, [39] the defendants entreat this Court to follow the decisions of the minority of jurisdictions, which have refused to recognize a claim for tortious interference with parental relationship based upon their determinations that such tort-based recovery would be detrimental to the best interests of the children involved at the center of these controversies. Citing Whitehorse v. Critchfield, 144 Ill.App.3d 192 , 98 Ill.Dec. 621 , 494 N.E.2d 743 (1986); Larson v. Dunn, 460 N.W.2d 39 (Minn.1990); Zaharias v. Gammill, 844 P.2d 137 (Okla.1992); Cosner v. Ridinger, 882 P.2d 1243 (Wyo.1994).

If, however, this Court should recognize a cause of action for tortious interference with parental relationship, the defendants assert that the definition of this tort contained in Section 700 does not apply to the facts of this case. Further, they submit that John has failed to state a cause of action for tortious interference because he is unable to satisfy two elements required of such a claim. First, the defendants represent that this tort is available only to those individuals who are custodial parents and thereby entitled to their child's sole legal custody. As John was not, and never has been, the custodial parent of Baby Boy Conaty, he is not entitled to seek recovery under this theory. Second, Section 700, as it is written, provides relief from damages occasioned by the abduction or compelled removal of a child from his/her parent who is entitled to his/her legal custody. Again, the defendants indicate that the facts underlying this appeal do not support John's claim as there is no indication either that John was entitled to his son's custody or that Baby Boy Conaty was abducted from, or compelled to leave, John. Finally, the defendants dispute John's ability to maintain this cause of action where both he and Anne had equal custodial rights vis-a-vis Baby Boy Conaty. [40]

John replies that he has stated a valid claim upon which to obtain relief from the defendants' alleged tortious interference with his parental relationship with Baby Boy Conaty. Although this cause is novel to the jurisprudence of this State, a majority of jurisdictions throughout the country have recognized such a claim. Citing, e.g., Hinton v. Hinton, 436 F.2d 211 , 141 U.S.App. D.C. 57 (D.C.Cir.1970), aff'd, 492 F.2d 669 , 160 U.S.App. D.C. 403 (D.C.Cir.1974); Kunz v. Deitch, 660 F.Supp. 679 (N.D.Ill.1987); Lloyd v. Loeffler, 539 F.Supp. 998 (E.D.Wis. 1982), aff'd, 694 F.2d 489 (7th Cir.1982); D & D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520 (Colo.1989); Plante v. Engel, 124 N.H. 213 , 469 A.2d 1299 (1983); Bedard v. Notre Dame Hospital, 89 R.I. 195 , 151 A.2d 690 (1959). In urging this Court to adopt this cause of action, John suggests that such a claim is consistent with the existing law of this State, which recognizes the preeminence of a parent's right to the custody of his/her child, provided the parent is not unfit and has not waived, abandoned, transferred, or otherwise relinquished his/her custodial rights. Citing Hammack v. Wise, 158 W.Va. 343 , 211 S.E.2d 118 (1975). John further supports his position by proposing that, regardless of any decisional rights enjoyed by Anne, "[o]nce the baby is born[, both] the baby and the father have rights."

Additionally, while John concedes that the facts of this case do not fit neatly into the definition of "tortious interference" contained *759 in Section 700, he nevertheless asks this Court to recognize his claim, stating that the lack of precedent does not automatically foreclose the recognition of a cause of action to remedy the wrong that has been done. Citing Rosefield v. Rosefield, 221 Cal.App.2d 431 , 34 Cal.Rptr. 479 (1963). Finally, responding to the defendants' arguments that he has not satisfied all of the requisite elements to prosecute this cause of action, John asserts that he has, in fact, met these requirements. First, John indicates that there is no requirement that he have a judicial decree awarding him sole legal custody of Baby Boy Conaty in order to maintain his claim. Citing Rosefield, 221 Cal.App.2d 431 , 34 Cal.Rptr. 479 . Second, John disputes the defendants' charge that Baby Boy Conaty was not abducted from, or otherwise compelled to leave, John. In this regard, John states that the defendants orchestrated a scheme to prevent him from establishing a relationship with his infant son and, given his son's tender age of two days, effectively compelled the child to leave his father through their pre-adoptive placement of the boy into Canada. Lastly, John suggests that, despite the defendants' contrary view, he is permitted to assert a claim for tortious interference even though both he and Anne theoretically had equal rights to their son's custody. Under the facts of this case, John represents that he and Anne, realistically, did not have equal parental rights because Anne effectively prevented him from establishing and asserting his rights, thus elevating her own rights above his. Therefore, because the parties actually had unequal rights, as a result of the defendants' conduct, John should be permitted to maintain his claim. Citing Rosefield, 221 Cal.App.2d 431 , 34 Cal.Rptr. 479 .

The cause of action asserted by John, that of tortious interference with parental relationship, is a matter of first impression before this Court. Nevertheless, the recognition of this cause of action appears to be the standard adopted by a majority of other jurisdictions' courts that have been faced with this issue. [41] In order to determine whether this Court should follow the lead initiated by our sister jurisdictions, it is necessary for us *760 first to understand the nature of this proffered claim and then to ascertain whether our existing law would impede our embracement of this cause.

Section 700 of the Restatement (Second) of Torts articulates the elements of a claim for "tortious interference with parental or custodial [42] relationship". [43] Pursuant to the Restatement, "Causing [a] Minor Child to Leave or not to Return Home[,]" "[o]ne who, with knowledge that the parent does not consent, abducts or otherwise compels or *761 induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent." Restatement (Second) of Torts ž 700 (1976). [44]

This Section permits a cause of action to be maintained both when the child has been forcibly abducted from his/her parent's custody and when he/she is prevented from returning to his/her parent's custody.

Under the rule stated in this Section, an action may be maintained by the parent who is entitled to the custody of a minor child against one who by force abducts the child from its home, or one who induces the child to leave its home with knowledge that the parent has not consented.... So, too, the action can be maintained against one who, with knowledge that the child is away from home against the will of the parent, imprisons it or induces the child... not to return home.

Restatement (Second) of Torts ž 700 cmt. a (1976). However, under either the removal or retention theories, "[t]o become liable under the rule stated in this Section for inducing a child not to return home, it is necessary that the actor know that the child is away from home against the will of the parent." Restatement (Second) of Torts ž 700 cmt. b.

Governing all claims for tortious interference with a parental or custodial relationship, though, is the underlying custodial or parental rights of the parties involved. Thus,

[w]hen the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other.... One parent may be liable to the other parent for the abduction of his own child if by judicial decree the sole custody of the child has been awarded to the other parent.

Restatement (Second) of Torts ž 700 cmt. c.

Refining, clarifying, and adopting this tort, various jurisdictions have established precise tests to be used in determining whether one has tortiously interfered with another's parental or custodial rights and have explained the rationale underlying their decisions to recognize this cause of action. For example, the Supreme Court of Alabama, in reviewing a claim by the plaintiff parents charging that a male juvenile and his parents had assisted the plaintiff's minor daughter in running away from home and had concealed her whereabouts from the plaintiffs, recognized that

Section 700 does not create a new cause of action unknown to the common law. [Rather, i]t accurately reflects the common law principle that "parents have a right to the care, custody, services and companionship of their minor children, and [that] when they are wrongfully deprived thereof by another, they have an action therefor."

Anonymous v. Anonymous, 672 So.2d 787, 789 (Ala.1995) (quoting Steward v. Gold Medal Shows, 244 Ala. 583, 586 , 14 So.2d 549, 552 (1943)) (additional citation omitted). The court then proceeded to clarify the requisite elements for a claim of tortious interference:

To state a claim of intentional or malicious custodial interference, a [parent] need only plead facts tending to show:

"(1) [S]ome active or affirmative effort by [the] defendant to detract the child *762 from the parent's custody or service, (2) [that] the enticing or harboring [was] willful, [and] (3) [that the enticing or harboring was done] with notice or knowledge that the child had a parent whose rights were thereby invaded."

Id., 672 So.2d at 790 (quoting 67A C.J.S. Parent & Child ž 131, at p. 513 (1978)) (additional citation omitted). See also Marshak v. Marshak, 226 Conn. 652 , 628 A.2d 964 (1993) (refusing to allow mother's claim for tortious interference with custodial relationship, where mother and father had joint legal custody of children at time of alleged interference, based upon Restatement (Second) of Torts ž 700 cmt. c (1976)); Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842 , 571 N.E.2d 340 (1991) (emphasizing importance of lack of parent's consent to child's absence from parent's home and enumerating criteria for jury to consider in this regard); Kipper v. Vokolek, 546 S.W.2d 521, 525-26 (Mo.App.1977) (discussing particular elements comprising tort claim for interference with parental or custodial relationship).

In a somewhat different case, the California District Court of Appeal reviewed the rationale for permitting a cause of action for tortious interference with parental or custodial relationship in enunciating the appropriate context for such a claim. Rosefield v. Rosefield, 221 Cal.App.2d 431 , 34 Cal.Rptr. 479 (1963). The case arose in the context of divorce proceedings. Since the date of separation, the mother had had custody of the parties' child. During the pendency of the proceedings and shortly before custody was to be awarded to the mother, the father, with the help of his father (the paternal grandfather), took the child from the mother and concealed his whereabouts from her. At the time the appellate court heard this case, the father and child had not yet been located.

Reviewing the mother's claim of tortious interference against the paternal grandfather, [45] the Rosefield Court noted that "[t]he actions of the third party [grandfather], as alleged, did not simply help the father to gain custody of the child, as from a stranger, but effectively deprived the mother of a right, elemental and of value inestimable, which she, too, had." 221 Cal.App.2d at 433 , 34 Cal.Rptr. at 481 . Though declining to definitively rule as to the propriety of the claim asserted against the father, the Court did find, given the circumstances, that the father's actions impermissibly infringed upon the mother's parental and custodial rights.

We believe that it was a legal wrong for the husband and father to abscond with the child, and that respondent [grandfather] would be liable in damages even for the father's actions, if conspiracy were shown. Of course, not every transportation of a child by one parent causing the other parent some loss of custody and association with the child would be wrongful. If, however, one parent makes away with the offspring, removes it effectually from judicial control, conceals it, and leaves the other parent utterly bereft of the means of enjoying any of the privileges of parenthood, it is folly to say that the decamping parent is merely exercising his "equal right" to the custody of the child. There is no equality about it.

Id., 221 Cal.App.2d at 435 , 34 Cal.Rptr. at 482 .

Similarly, the court in Plante v. Engel , focused upon the rationale supporting its adoption of a cause of action for tortious interference with parental or custodial relationship. 124 N.H. 213 , 469 A.2d 1299 (1983). In Plante , the mother and father had commenced an action for divorce. In conjunction with these proceedings, the father was awarded custody of the parties' child. The mother thereafter, in violation of the custody order and without telling the father, took the parties' child with her when she moved to Texas. Upholding the father's claim against the maternal grandparents for interfering with his right to the custody of his child, the Supreme Court of New Hampshire based its decision, in large part, on the deep respect accorded a parent's right to the custody of his/her child.

*763 The high place accorded filiation stems not from the material bond whereby services are provided to each other by parent and child but from recognition that there is a sanctity in the union of parent and child that transcends economics and deserves the utmost respect. Because this relationship is so intimately connected with the parent's person, we hold that where there is an intentional interference with a parent's custody of his or her child, an injured parent is entitled to a remedy that completely compensates him or her.

Id., 469 A.2d at 1301-02 (citations omitted).

Unlike the jurisdictions referenced above, this State has not previously recognized the tort of interference with a parental or custodial relationship. However, the law of West Virginia has explicitly adopted interference torts in other contexts. For example, in Syllabus point 2 of Barone v. Barone, 170 W.Va. 407 , 294 S.E.2d 260 (1982), we held that "[a]n intended beneficiary may sue for tortious interference with a testamentary bequest."

In addition, we very recently reiterated the standard enunciated for the tort of interference with an employment relationship that originally was announced in Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W.Va. 210 , 314 S.E.2d 166 (1983):

"To establish prima facie proof of tortious interference, a plaintiff must show:

(1) existence of a contractual or business relationship or expectancy;

(2) an intentional act of interference by a party outside that relationship or expectancy;

(3) proof that the interference caused the harm sustained; and

(4) damages.

"If a plaintiff makes a prima facie case, a defendant may prove justification or privilege, affirmative defenses. Defendants are not liable for interference that is negligent rather than intentional, or if they show defenses of legitimate competition between plaintiff and themselves, their financial interest in the induced party's business, their responsibility for another's welfare, their intention to influence another's business policies in which they have an interest, their giving of honest, truthful requested advice, or other factors that show the interference was proper."

Tiernan v. Charleston Area Medical Center, 203 W.Va. 135, 148-49 , 506 S.E.2d 578, 591-92 (1998) (quoting Syl. pt. 2, Torbett, 173 W.Va. 210 , 314 S.E.2d 166 ).

Finally, in Thacker Coal & Coke Co. v. Burke, 59 W.Va. 253, 254 , 53 S.E. 161, 162 (1906), we permitted an injured party to recover damages for tortious interference with a contractual relationship: "[i]f one wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of that third person, it is actionable." (Internal quotations and citation omitted). But cf. Syl. pt. 1, Shrewsbery v. National Grange Mut. Ins. Co., 183 W.Va. 322 , 395 S.E.2d 745 (1990) ("It is impossible for one party to a contract to maintain against the other party to the contract a claim for tortious interference with the parties' own contract; each party has agreed to be bound by the terms of the contract itself, and may not thereafter use a tort action to punish the other party for actions that are within its rights under the contract."). This brief survey suggests that the recognition of interference torts is not novel to the jurisprudence of this State. Thus, it may be said that the acceptance of a cause of action for tortious interference with parental or custodial relationship would simply be a logical progression of this jurisdiction's pre-existing tortious interference law.

Moreover, the Legislature of this State officially has codified, as a criminal offense, interference with a legal guardian's custody of a minor child. W. Va.Code ž 61-2-14d (1984) (Repl.Vol.1997) specifically recognizes as a crime in this State the "[c]oncealment or removal of [a] minor child from [his/her] custodian or from [a] person entitled to visitation":

(a) Any person who conceals, takes or removes a minor child in violation of any court order and with the intent to deprive another person of lawful custody or visitation rights shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one *764 nor more than five years, or in the discretion of the court, shall be imprisoned in the county jail not more than one year or fined not more than one thousand dollars, or both fined and imprisoned.

(b) Any person who violates this section and in so doing removes the minor child from this State or conceals the minor child in another state shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years or fined not more than one thousand dollars, or both fined and imprisoned.

(c) It shall be a defense under this section that the accused reasonably believed such action was necessary to preserve the welfare of the minor child. The mere failure to return a minor child at the expiration of any lawful custody or visitation period without the intent to deprive another person of lawful custody or visitation rights shall not constitute an offense under this section.

In addition, anyone who "aid[s] or abet[s]" in an offense of custodial interference, as defined by W. Va.Code ž 61-2-14d, is also criminally liable:

If any person in any way knowingly aid or abet any other person in the commission of any offense described in section fourteen, fourteen-a, fourteen-c or fourteen-d [ž 61-2-14, ž 61-2-14a, ž 61-2-14c, or ž 61-2-14d] of this article, either as accessory before or an accessory after the fact, such person so aiding and abetting shall be guilty as a principal in the commission of such offense and shall be punished in the same manner and to the same extent as is provided in said sections for the person who committed the offense.

W. Va.Code ž 61-2-14e, in part, (1984) (Repl.Vol.1997).

At least one state has based its adoption of the tort of interference with parental or custodial relationships, in part, upon the fact that it, too, had criminalized custodial interference. In D & D Fuller CATV Construction, Inc. v. Pace, 780 P.2d 520 (Colo.1989) (en banc), the Supreme Court of Colorado noted that that state recognized the crime of custodial interference. See Colo.Rev.Stat. ž 18-3-304 (1986). The Court then reasoned:

Based on the fact that it is a crime in this state to take a child from his or her lawful custodian and to deprive the lawful custodian of custody of a child, we recognize the tort of interference with the parent-child relationship set forth in Restatement (Second) of Torts ž 700 (197[6]).

780 P.2d at 524 . See also Spencer v. Terebelo, 373 So.2d 200, 202 (La.App.1979) (concluding that penal statute prohibiting criminal custodial interference, La.Rev.Stat. ž 14:45 (1966), "forms the basis of the legal duty owed by" the offending parent to the complaining parent); Silcott v. Oglesby, 721 S.W.2d 290 (Tex.1986) (recognizing tort cause of action for custodial interference, in part, based upon existing criminal offense of interference with child custody (citing Tex. Penal Code Ann. ž 25.03 (Vernon 1974))). But see Whitehorse v. Critchfield, 144 Ill. App.3d 192 , 98 Ill.Dec. 621 , 494 N.E.2d 743 (1986) (deferring to Legislature imposition of civil penalties for custodial interference because Legislature already had established criminal penalties for such an offense (citing Ill.Rev.Stat. ch. 38, paras. 10-5, 10-6 (1985))); Larson v. Dunn, 460 N.W.2d 39 (Minn.1990) (rejecting tort of parental or custodial interference partially because of Legislature's provision of criminal penalties, in Minn.Stat. ž 609.26 (1986), for abduction of children from custodial parent); Zaharias v. Gammill, 844 P.2d 137 (Okla.1992) (declining to adopt tort of custodial interference, in part, because of existing criminal penalties applicable to persons abducting minor children (citing 21 Okla. Stat. ž 1119 (1991))). Cf. Rosefield v. Rosefield, 221 Cal.App.2d 431, 433 , 34 Cal.Rptr. 479, 481 (1963) (noting that Cal. Civil Code ž 49 (1939) "forbids the abduction of a child from a parent" and acknowledging that third persons violating this section and/or committing tortious interference can be held liable to the complaining parent for damages arising from the interference).

Furthermore, we have a long-standing tradition of respecting the rights of parents to the custody of their children. See, e.g., Syl. pt. 3, in part, State ex rel. Harmon v. Utterback, *765 144 W.Va. 419 , 108 S.E.2d 521 (1959) ("The right of a parent to the custody of his or her child, being founded in nature and wisdom and recognized and declared by statute, will be respected unless such right is transferred, relinquished or abandoned[.]"), overruled on other grounds by Syl. pt. 3, Overfield v. Collins, 199 W.Va. 27 , 483 S.E.2d 27 (1996); Syl. pt. 4, State ex rel. Neider v. Reuff, 29 W.Va. 751 , 2 S.E. 801 (1887) ("The right of the father or mother to the custody of their minor child, is not an absolute right, to be accorded to them under all circumstances, for it may be denied to either of them, if it appears to the court, that the parent otherwise entitled to this right, `is unfit for the trust.'"). [46] In this regard we have declared that

[i]n the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.

Syl. pt. 1, In re Willis, 157 W.Va. 225 , 207 S.E.2d 129 (1973). We also have articulated that

"[a] parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404 [,] 168 S.E.2d [798] (1969).

Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343 , 211 S.E.2d 118 (1975).

Identifying the preeminence of a parent's right to enjoy a parental or custodial relationship with his/her child, various jurisdictions have attempted to further protect this right by permitting the recovery of damages when one tortiously interferes with such a relationship. See, e.g., Anonymous v. Anonymous, 672 So.2d 787 (Ala.1995) (noting that Restatement ž 700 reflects common law view that parents have right to custody of their children); Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842 , 571 N.E.2d 340 (discussing parent's interest in parental and custodial relationship with his/her child in context of common law cause of action for interference with such relationship); Plante v. Engel, 124 N.H. 213 , 469 A.2d 1299 (1983) (permitting recovery of damages for intentional interference with parent's custodial relationship with his/her child based upon highly regarded right of parent to custody of his/her child); Bedard v. Notre Dame Hospital, 89 R.I. 195 , 151 A.2d 690 (1959) (basing right to recovery in tort upon parent's legally protected right to custody of his/her child founded in common law and statutory enactments).

Based upon the prior recognition of other tortious interference claims by this Court, our criminal statutes providing penal remedies for unlawful custodial interference, and the high esteem with which we regard the rights of parents to maintain relationships with their children, we find that it is proper to recognize, as a valid cause of action, the claim of tortious interference as asserted by John. Accordingly, we hold that a parent [47] may maintain a cause of action against one who tortiously interferes with the parent's parental or custodial relationship with his/her minor child, which right accrues the instant the child is born.

We additionally hold, consistent with our prior holding in Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W.Va. 210 , 314 S.E.2d 166 (1983), that to make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or *766 custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party's intentional interference caused harm to the complaining parent's parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Further, we hold that where a parent presents a prima facie case of tortious interference with his/her parental or custodial relationship, the party interfering with such relationship may assert the affirmative defense of justification, i.e., the party possessed a reasonable, good faith belief that interference with the parent's parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm, as contemplated by W. Va.Code ž 49-1-3 (1994) (Repl.Vol.1996). A party also cannot be held liable for tortious interference with a parental or custodial relationship if he/she acted negligently, rather than intentionally; possessed a reasonable, good faith belief that the interference was proper ( i.e., no notice or knowledge of an original or superseding judicial decree awarding parental or custodial rights to complaining parent); or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child ( i.e., mistake as to identity of child's biological parents where paternity has not yet been formally established). [48]

Lastly, we hold that a parent cannot charge his/her child's other parent with tortious interference with parental or custodial relationship if both parents have equal rights, or substantially equal rights (as in the case of a nonmarital child where the putative biological father seeks to establish a meaningful parent-child relationship with his child and, until such a relationship has been commenced, does not have rights identical to those of the child's biological mother), to establish or maintain a parental or custodial relationship with their child. In other words, when no judicial award of custody has been made to either parent, thereby causing the parents' parental and custodial rights to be equal, no cause of action for tortious interference can be maintained by one parent against the other parent. Likewise, where no judicial decree has been entered awarding custody of a nonmarital child to one or the other of the child's biological parents, the complaining biological parent cannot assert a claim of tortious interference with parental or custodial relationship against the other biological parent. [49]

Having established that John may properly assert a claim for tortious interference with his parental relationship with Baby Boy Conaty, we must now ascertain whether his complaint sufficiently stated this cause of action. [50] As we iterated in the preceding *767 section, generally "[a] pleading which sets forth a claim for relief ... [must] contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." W. Va. R. Civ. P. Rule 8(a), in part. In this manner, while allegations of "fraud or mistake shall be stated with particularity[; m]alice, intent, knowledge, and other condition of mind of a person may be averred generally." W. Va. R. Civ. P. Rule 9(b), in part. Moreover, in order to withstand a challenge that the complaint fails to state a claim upon which relief may be granted, the complaint must indicate that "the plaintiff can prove... facts in support of his claim which would entitle him to relief." Syl., in part, John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W.Va. 603 , 245 S.E.2d 157 (1978) (internal quotations and citations omitted). During the proceedings below, the circuit court determined that John's complaint properly stated a claim for tortious interference.

Given our review of the pertinent authority and our holding stated above, we find that the circuit court erred in permitting John to maintain his tortious interference claim against Anne. As expressed in the comments to Restatement ž 700 and echoed in our decision, when both parents are equally, or substantially equally, entitled to establish or maintain a parental or custodial relationship with their child, neither of them can maintain a cause of action against the other for tortious interference with that relationship.

The circumstances underlying this case suggest that John and Anne had substantially equal rights vis-a-vis Baby Boy Conaty. Anne, as the biological mother of the child, had an undisputed right to maintain a custodial relationship with her son. John, as the putative biological father, had a right to establish a parental relationship with his son in order to acquire parental rights sufficient to enable him to subsequently assert his right to custody of the boy. At no time did either parent obtain superior parental or custodial rights as no court order was ever entered granting either John or Anne exclusive custody of their son. Because both Anne and John had substantially equal rights to have a parental or custodial relationship with Baby Boy Conaty, John could not assert a claim for tortious interference against Anne. In fact, the prosecution of such a claim between parents with co-equal rights effectively permits one parent to elevate his/her parental or custodial rights above those of the other parent rather than leaving such a determination to the judiciary equipped to resolve such custodial disputes. See, e.g., Garska v. McCoy, 167 W.Va. 59 , 278 S.E.2d 357 (1981) (defining factors to be considered by court in determining custody of child). Therefore, we find that the circuit court erred in permitting John to assert against Anne a claim of tortious interference with his parental rights. However, as we explain below, our decision in this regard does not necessitate the reversal of the jury's verdict.

By contrast, John can state a claim for tortious interference against the remaining defendants, Dr. and Mrs. Conaty and Brian. As our holding indicates, a parent who has been deprived of his/her parental or custodial relationship with his/her child generally is not prevented from asserting such a claim against other nonparental relatives of his/her child. Instead, it appears that these types of tortious interference claims are quite often asserted against the child's grandparents, aunts, and uncles who have participated in the removal or retention of the child from the complaining parent. [51] *768 Thus, John is not precluded from prosecuting his tortious interference claim against the remaining defendants.

Turning now to the sufficiency of John's complaint, we find that he adequately stated a claim against defendants Brian and Dr. and Mrs. Conaty for tortious interference with his parental or custodial relationship with Baby Boy Conaty. Allegations that the defendants "knowingly, willfully, intentionally and wrongfully conspired to hide [John's] child from him and to place the child for adoption, for the purpose of depriving [John] of the right to parenthood" and that "[t]he defendants' acts were done knowingly, intentionally, maliciously and with the specific intention to deprive [John] of his right to parenthood and the love, comfort, society and companionship of his child," sufficiently apprised these defendants that John was complaining of their alleged interference with his parental relationship with Baby Boy Conaty.

In our decision of this issue, we have determined that John could not state a claim against Anne for tortious interference with his parental relationship with their child. We also have decided that his claims against defendants Brian and Dr. and Mrs. Conaty for tortious interference were properly advanced. Despite Anne's inability to be liable under this theory of recovery and our establishment of defenses thereto more numerous than those upon which the circuit court instructed the jury, see supra note 48, we consider moot any further discussion of this matter. At trial, John asserted two alternative theories of wrongdoing by the defendants: fraud and tortious interference. Despite the jury's determination that all of the defendants were liable to John under both theories, John is nevertheless limited to a singular recovery. Since we have found John's claims of fraud against the defendants to have been properly stated and maintained, he may base his recovery on this theory. See Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 608 , 390 S.E.2d 796, 807 (1990) ("`It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories.'" (quoting Syl. pt. 7, Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673 , 289 S.E.2d 692 (1982)) (additional citations omitted)); Syl. pt. 1, in part, Thornton v. Charleston Area Medical Ctr., 158 W.Va. 504 , 213 S.E.2d 102 (1975) ("At common law, an injured party may have only one full recovery...."). Cf. Syl. pt. 6, Orr v. Crowder, 173 W.Va. 335 , 315 S.E.2d 593 (1983) ("Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues."). Accordingly, we need not address further the defendants' liability for tortiously interfering with John's parental relationship with his son, and we do not disturb that portion of the circuit court's order. [52]

C.

Jury Instructions

We next are asked to determine whether the trial court's decision to grant and to refuse certain jury instructions was proper in this case. First and foremost, we emphasize that, "[a]s a general rule, objections to a trial judge's charge must be clear and explicit enough to tell the trial judge what the parties want done to correct the alleged error." Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 70 , 479 S.E.2d 561, 580 (1996). This requirement of a "clear and explicit" objection is echoed by Rule 51 of the *769 West Virginia Rules of Civil Procedure, which provides, in pertinent part: "[n]o party may assign as error the giving or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which he objects and the grounds of his objection[.]"

Once a party's challenge to an objectionable jury instruction is properly before this Court, we conduct a more thorough inquiry to ascertain the degree of prejudice, if any, suffered by the objecting party. In Syllabus point 4 of State v. Guthrie, 194 W.Va. 657 , 461 S.E.2d 163 (1995), we enunciated an abuse of discretion standard to review such challenges:

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead [sic] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

See also Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97 , 459 S.E.2d 374 (1995) ("The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties."); Syl. pt. 2, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986) ("`Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company[, Inc.], 155 W.Va. 397 , 184 S.E.2d 118 (1971)."). Pursuant to this deferential approach, "[w]e will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury." Guthrie, 194 W.Va. at 672 , 461 S.E.2d at 178 . Accordingly, where the party challenging the giving of a jury instruction properly objected to the instruction during the trial court proceedings, and where we determine, upon a review of the trial court's decision to grant the challenged instruction, that the trial court did not abuse its discretion in permitting the instruction, the inquiry ends here, and the party's objection to the challenged instruction must fail.

Where, however, the error complained of involves a trial court's refusal to give a particular requested instruction, we "will ... presume[] that [the] trial court acted correctly ... unless it appears from the record in the case ... that the instructions refused were correct and should have been given." Coleman v. Sopher, 201 W.Va. 588, 602 , 499 S.E.2d 592, 606 (1997) (internal quotations and citations omitted). "As a general rule, the refusal to give a requested instruction is reviewed for an abuse of discretion." Syl. pt. 1, in part, State v. Hinkle, 200 W.Va. 280 , 489 S.E.2d 257 (1996).

If we observe that the complaining party objected to the instruction at trial but the trial court abused its discretion in granting the instruction, we proceed to a harmless error analysis. "Harmless error", as described by Rule 61 of the West Virginia Rules of Civil Procedure, contemplates that:

no error or defect in any ruling ... or in anything done ... by the court ... is ground [sic] for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding *770 which does not affect the substantial rights of the parties.

Similarly, in Skaggs, 198 W.Va. at 70-71 , 479 S.E.2d at 580-81 , we "direct[ed] reviewing judges to inquire, when determining whether an alleged error is harmless, whether they are in `grave doubt about the likely effect of an error on the jury's verdict,' O'Neal [ v. McAninch ], 513 U.S. [432,] 435, 115 S.Ct. [992,] 994, 130 L.Ed.2d [947,] 951 [ (1995) ]; if a court does have grave doubt, then the error is harmful." Thus, if the contested instruction does not affect the complaining party's substantial rights, any alleged error is harmless, and the challenge to the trial court's jury instruction must fail. See Tennant, 194 W.Va. at 111 , 459 S.E.2d at 388 ("Under West Virginia law, when substantial rights are not affected, reversal is not appropriate. A party is entitled to a new trial only if there is a reasonable probability that the jury's verdict was affected or influenced by trial error."). By contrast, if the contested instruction affects the substantial rights of the party opposing the instruction, or if the reviewing court has "grave doubt" about the prejudicial effect of the challenged instruction on the jury's verdict, the trial court's decision to give the instruction constitutes reversible harmful error. Cf. Syl. pt. 5, Wheeler v. Murphy, 192 W.Va. 325 , 452 S.E.2d 416 (1994) ("`"An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction." [Citations omitted.]' Syllabus Point 6, Ratlief v. Yokum, 167 W.Va. 779 , 280 S.E.2d 584 (1981).").

With respect to an erroneous decision by a trial court to refuse to give a particular instruction, we have established specific guidelines to be used in determining whether such a ruling constitutes reversible harmful error.

"A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense."

State v. Wade, 200 W.Va. 637, 646 , 490 S.E.2d 724, 733 (quoting Syl. pt. 11, State v. Derr, 192 W.Va. 165 , 451 S.E.2d 731 (1994)), cert. denied, ___ U.S. ___, 118 S.Ct. 576 , 139 L.Ed.2d 415 (1997).

Finally, where the party objecting to an instruction on appeal challenges the legal sufficiency of the instruction as opposed to the actual giving of, or the refusal to give, the instruction, we employ a de novo standard of review. See, e.g, Syl. pt. 1, in part, State v. Hinkle, 200 W.Va. 280 , 489 S.E.2d 257 ("[T]he question of whether a jury was properly instructed is a question of law, and the review is de novo. "). See also State v. McGuire, 200 W.Va. 823, 828 , 490 S.E.2d 912, 917 (1997) ("Our review of the legal correctness of a jury instruction ... is performed de novo[.]" (footnote omitted)); B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 466 , 475 S.E.2d 555, 558 (1996) ("Whether an instruction is legally correct is a question of law [sic] and our review is de novo. State v. Guthrie, 194 W.Va. 657 , 671 n. 12, 461 S.E.2d 163 , 177 n. 12 (1995).").

Applying the above-described standards to the case presently before us, we now proceed to evaluate, in turn, the defendants' challenges to the following jury instructions given or refused by the trial court in the proceedings below: (1) the validity and effect of the ex parte temporary injunction, issued in the inverse paternity proceeding ("West Virginia case 1"), which enjoined Anne from placing her child for adoption until the child's paternity had been established; (2) the applicability of the Interstate Compact for the Placement of Children and the Uniform Child Custody and Jurisdiction Act; (3) the existence of a parent's right to the custody of his/her child; (4) the effect of the defendants' actions on John's rights to due process and equal protection of the law; and (5) the consideration of contempt of court orders against defendants Anne and Dr. and Mrs. Conaty and of alleged violations of legal ethics rules by defendants Brian and Leavitt.

1. Validity and Effect of Ex Parte Temporary Injunction

The defendants first complain that the circuit court erred by giving and refusing *771 to give certain instructions pertaining to the ex parte temporary injunction order obtained by John in his inverse paternity action. In early June, 1991, John filed a petition in the circuit court of Cabell County seeking a conclusive determination of whether or not he was the father of Anne's then-unborn child. In conjunction with this paternity petition, John requested injunctive relief including:

1. An Order prohibiting [Anne] from consenting to an adoption of her unborn child until the issue of [John's] paternity of said child has been determined;

2. An Order compelling [Anne] to advise [John] of her whereabouts and to provide him with updated information regarding the condition of the unborn child; and

3. An Order compelling [Anne] to advise [John] of the impending birth of the child reasonably in advance of the delivery of said child.

Following a hearing on John's petition requesting, in part, injunctive relief, the circuit court entered an ex parte temporary injunction on June 26, 1991, "prohibiting [Anne] from placing her unborn child for adoption by anyone through any agency, church, group, attorney, or private household until the paternity of [John] can be established or refuted." The court further ordered John "to provide notice to [Anne] of this Injunction," presumably by publication. [53]

During the proceedings underlying the instant appeal, the trial court evaluated evidence pertaining to the ex parte temporary injunction entered in John's previous inverse paternity proceeding. The court then advised the jury, over the defendants' objection: "You are instructed in this case that the injunction obtained by John Kessel on June 26, 1991, was not void." Plaintiff's Instruction No. 38(a) (as amended). Additionally, the court instructed the jury, over the objection of the defendants, that:

When a Court has jurisdiction in the sense of power to decide whether an injunction or other writ shall be awarded, the party against whom it issues is bound to obey it, although the awarding of it may have been erroneous, and, in that sense, improper and improvident, and it may operate unreasonably and unjustly; he must obey it until vacated or dissolved. Even though an injunction may have been erroneously granted, unless it is absolutely void, it is the duty of the parties enjoined to obey it scrupulously, and they will be held to a strict observance of it.

Plaintiff's Instruction No. 38 (as amended). The court thereafter refused to give two instructions proffered by the defendants pertaining to the effect of the ex parte temporary injunction. Defendants' Instruction Number 3 would have provided: "You are instructed that Anne Conaty did not violate the injunction issued by the Circuit Court of Cabell County, West Virginia, on June 26, 1991, because the Circuit Court of Cabell County was without jurisdiction to prevent her from placing her child for adoption." [54] Similarly, Defendants' Instruction Number 46 would have directed: "You are instructed that the injunction issued by the Circuit Court was of no effect because no bond had been given and because the Judge made no finding that a bond was not required." [55] From these rulings of the circuit court, the defendants appeal to this Court.

*772 On appeal, the defendants primarily challenge the trial court's ruling as to the validity of the ex parte temporary injunction entered during John's inverse paternity action. As a result of this ruling, the defendants complain that certain instructions granted and refused by the court were erroneous as they perpetuated the trial court's initial error in refusing to find that the injunction was void. They first challenge as improper the jurisdiction of the Circuit Court of Cabell County to enjoin acts occurring outside of its territorial jurisdiction. At the time the ex parte temporary injunction was issued by the circuit court, John averred that Anne had removed herself from her previous residence in Huntington, West Virginia, and that he did not know her subsequent whereabouts. Thus, the defendants assert, it may be inferred that John knew that any prospective adoptive placement of the parties' child would occur outside of Cabell County, West Virginia.

The defendants then argue that by issuing the ex parte temporary injunction preventing Anne from placing the parties' child for adoption, the circuit court exceeded its territorial jurisdiction in direct contravention of West Virginia statutory law. Citing W. Va.Code ž 53-5-3 (1923) (Repl.Vol.1994) ("Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments."). See also Syl. pt. 2, Meadows ex rel. Professional Employees of West Virginia Educ. Ass'n v. Hey, 184 W.Va. 75 , 399 S.E.2d 657 (1990) ("Under W. Va. Code ž 53-5-3 (1981), the circuit court of one county does not have the authority to enjoin the acts of citizens occurring in other counties, except where the judge of the other county is interested in the proceeding and unable to act."). Consequently, the defendants maintain, because the circuit court did not have jurisdiction to enter the injunction, it was void.

The defendants next contend that the ex parte temporary injunction is without legal effect because John did not post an injunctive bond with the circuit court and the court did not specifically waive this requirement. In support of this contention, the defendants cite W. Va.Code ž 53-5-9 (1923) (Repl.Vol. 1994):

An injunction ... shall not take effect until bond be given in such penalty as the court or judge awarding it may direct, with condition to pay the judgment or decree (proceedings on which are enjoined) and all such costs as may be awarded against the party obtaining the injunction, and also such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved, and with a further condition, if a forthcoming bond has been given under such judgment or decree, to indemnify and save harmless the sureties in such forthcoming bond and their representatives against all lost [sic] or damages in consequence of such suretyship; or, if the injunction be not to proceedings on a judgment or decree, with such condition as such court or judge may prescribe.

The defendants further bolster their argument by citing this Court's holding interpreting the effect of this statutory prerequisite to the effectiveness of an injunction: "[a]n order of injunction is of no legal effect under section 10, chapter 133, Code [W. Va.Code ž 53-5-9], unless the court requires a bond, or recites in the order that no bond is required for good cause, or unless the movant is a personal representative." Syl. pt. 4, Meyers v. Washington Heights Land Co., 107 W.Va. 632 , 149 S.E. 819 (1929). In explaining this holding, the Court in Meyers stated:

The intent and purpose of the statute is manifest, namely, that he who invokes the injunctive process of the court must be [sic] proper bond guarantee to make good to any person whose rights are prejudicially affected by such injunction all damages and injuries thus occasioned to him.... If there was reason [for excusing the enjoining party from posting the statutorily required bond], it should have been recited in the order. Again we say courts of record must speak by their records. The court's record containing no reason why *773 the injunction should have been issued without bond, it must be considered that there was no reason. Therefore, the granting of the injunction in such manner was erroneous. Not only that, but the injunction was without binding force. The statute so says. There was therefore no legal or binding injunctive inhibition on the [party sought to be enjoined]....

107 W.Va. at 643-44 , 149 S.E. at 823-24 . The defendants also suggest that this bond requirement is likewise applicable to temporary injunctions. Citing Syl. pt. 2, Conley v. Brewer, 85 W.Va. 725 , 102 S.E. 607 (1920) ("It is error on decreeing a temporary injunction to make the same effective without requiring of the plaintiff a bond in such penalty as the court may prescribe, conditioned according to law."); Chesapeake & Ohio R.R. Co. v. Patton, 5 W.Va. 234 (1872). Therefore, the defendants claim that the ex parte temporary injunction had no legal effect as a result of John's failure to post bond and the circuit court's failure to require him to do so or to definitely waive such a requirement.

The defendants additionally urge that Anne cannot be found to have violated the ex parte temporary injunction because she did not receive actual notice of the injunctive order until after the enjoined act had occurred. In this vein, the defendants represent that a party must have actual notice of the terms of an injunction before he/she may be charged with its contents: "[w]here a party has actual notice of an order of injunction, although it may not have been yet served, or be defectively served upon him, the order becomes operative on him from that time." Syl. pt. 3, Wenger v. Fisher, 55 W.Va. 13 , 46 S.E. 695 (1904).

Further, the defendants suggest that the evidence presented at trial failed to establish that Anne had knowledge of the injunction before she placed Baby Boy Conaty for adoption. Anne testified that she did not know of the ex parte injunction order until November, 1991, when she returned from England where she had been visiting with her sister since shortly after the birth of the parties' child in July, 1991. Additionally, Anne was never personally served with the injunction order. Nevertheless, the defendants note that the jury affirmatively answered special interrogatories finding that both defendants Anne and Leavitt knew of the injunctive order prior to Baby Boy Conaty's adoptive placement. [56]

Moreover, the defendants complain that Anne cannot be found to have violated the injunctive order because she was not served with the injunction until after the enjoined acts had occurred. While the injunction was entered on June 26, 1991, the defendants claim that service of the injunctive order on Anne was not effective until July 26, 1991, the last date of publication of the injunctive order, or some date thereafter. As Anne had completed all of the pre-adoptive placement paperwork on July 25, 1991, she had effectively already placed Baby Boy Conaty for adoption on July 26, 1991, and her actions in so doing could not then have been enjoined. Citing Syl. pt. 4, Chesapeake & Ohio R.R. Co. v. Patton, 5 W.Va. 234 ("An injunction should not be granted for an act done and completed, though contrary to law, unless under peculiar circumstances."). Hence, the defendants argue the ex parte temporary injunction was unenforceable because Anne did not obtain notice or knowledge of and was not served with the injunction order until after she had completed the prohibited acts.

John replies that the ex parte temporary injunction was valid and that the trial court *774 did not err in so ruling. He further suggests that the most appropriate redress for the defendants' grievances would have been to appeal the circuit court's injunctive order or to request a writ of prohibition to prevent its enforcement. As the defendants failed to pursue either of these remedies, though, John also responds to their arguments before this Court. He first contests the defendants' position that Anne had performed the acts sought to be enjoined, i.e., adoptive placement of Baby Boy Conaty, prior to the effective date of service of the injunctive order upon her. He suggests that the final paperwork required to be completed by the hospital before the child could be released to the prospective adoptive parents was not finalized until July 26, 1991, the same date that service of the injunctive order on Anne by publication became effective. Thus, John contends that Anne could have prevented the infant's adoptive placement after she received notice, via publication, of the injunction.

John next proposes that the injunction was properly entered pursuant to the circuit court's domestic relations jurisdiction. W. Va.Code ž 48A-6-1 (1995) (Repl.Vol.1996) defines the circuit court's domestic relations jurisdiction applicable to the ex parte temporary injunction at issue in this assignment of error:

(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a circuit court ... may... protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of the child and of the putative father of the child.

Under this jurisdiction, John claims that the circuit court was empowered to "enjoin the offending party from ... interfering with the custodial or visitation rights of the other...." W. Va.Code ž 48-2-13(a)(11-12) (1993) (Repl.Vol.1996). See also W. Va.Code ž 48-2-15 (1996) (Repl.Vol.1996).

John also suggests that the circuit court properly exercised personal jurisdiction over Anne by virtue of her status as a domiciliary of Cabell County, West Virginia. Citing Meadows, 184 W.Va. 75 , 399 S.E.2d 657 . West Virginia remained Anne's state of domicile, despite her temporary absence from this region, because she retained her intention to remain in this state for an indefinite period of time. Citing Syl. pt. 8, in part, White v. Manchin, 173 W.Va. 526 , 318 S.E.2d 470 (1984) ("Domicile is a combination of residence (or presence) and an intention of remaining. If domicile has once existed, mere temporary absence will not destroy it, however long continued." (internal quotations and citation omitted)). In support of this theory John asserts that during her sojourn in California and other states, Anne did not change her permanent address to one other than her prior address in Huntington, West Virginia. In addition, Anne's intent to return to this State is exemplified by her request for a leave of absence from her Huntington, West Virginia, teaching position, rather than an unconditional resignation of this post. As both she, and her child, were domiciliaries of West Virginia, the Cabell County Circuit Court properly exercised in personam jurisdiction over Anne in issuing the ex parte temporary injunction order. Citing Rogers v. Commonwealth, 176 Va. 355, 361 , 11 S.E.2d 584, 586 (1940) (holding that domicile of nonmarital child is same as that of child's mother).

Finally, John urges that the circuit court possessed jurisdiction to enter injunctive relief by virtue of its authority to determine matters related to the paternity of a child. Specifically, a circuit court obtains personal jurisdiction in paternity matters, in part, pursuant to W. Va.Code ž 48A-6-1 (1989) (Cum. Supp.1991):

(b) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for an action brought under this article with respect to a child who was conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.

Given the circuit court's jurisdiction over Anne's person, John maintains that the court had the power to issue an injunction to restrain Anne from performing certain acts even if such acts were to be performed outside *775 of the circuit court's territorial jurisdiction. Citing United States Fire Ins. Co. v. Fleenor, 179 Va. 268 , 18 S.E.2d 901 (1942). Furthermore, John contends that even if the injunction was later determined to be invalid, Anne was required to abide by its terms until such a judicial determination had been made. Citing Howat v. Kansas, 258 U.S. 181, 189-90 , 42 S.Ct. 277, 280-81 , 66 L.Ed. 550, 559 (1922); Eastern Assoc. Coal Corp. v. Doe, 159 W.Va. 200, 206 , 220 S.E.2d 672, 677 (1975).

Having scrupulously examined the defendants' arguments pertaining to this particular assignment of error, we initially are inclined to refuse to address their merits based upon the fact that such arguments, though couched in terms of erroneous jury instruction rulings, are, in fact, nothing more than attempts to challenge the validity of the ex parte temporary injunction at this late date. Ordinarily, we would reject such an untimely challenge where the record evinces no prior objection to the injunctive order's validity. See Syl., Brast v. Kanawha Oil Co., 46 W.Va. 613 , 33 S.E. 302 (1899) ("An ex parte order granting an injunction is not appealable until after a motion made to vacate or set it aside."). [57] Nevertheless, because we find that a determination of the injunction's validity is an integral and indispensable step in assessing the propriety of the jury instructions granted and refused by the trial court, we will undertake to evaluate, on the merits, the issues presented for consideration.

The defendants first challenge the propriety of the circuit court's instruction advising that the injunction "was not void." See Plaintiff's Instruction No. 38(a) (as amended). Typically, a court may issue an injunction to enjoin only those acts occurring within that court's territorial jurisdiction. W. Va.Code ž 53-5-3 (1923) (Repl.Vol.1994) directs that "[j]urisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended[.]" See also Syl. pt. 1, Ray v. Hey, 183 W.Va. 521 , 396 S.E.2d 702 (1990) ("`By section 4, c. 133, Code 1913 (sec.4950) [ W. Va.Code, 53-5-3 [1931]], jurisdiction to award injunctive process is vested exclusively in the circuit court of the county wherein the act or proceeding sought to be enjoined is to be done, or is doing, or is apprehended, notwithstanding some of the defendants may reside in another county[,] except as provided in sections 6 and 9 of the same chapter (secs.4952, 4955) [ W. Va.Code, 53-5-4, -7 [1931]], and where a co-ordinate court has jurisdiction on grounds other than the award of such injunction.' Syllabus Point 1, Wayland Oil & Gas Co. v. Rummel, 78 W.Va. 196 , 88 S.E. 741 (1916).").

However, a well-recognized exception exists to permit courts to enjoin acts occurring outside of their territorial jurisdiction where the injunctive relief is merely ancillary to an underlying proceeding over which the court unquestionably has jurisdiction. In this respect, Syllabus point 3 of Shobe v. Latimer, 162 W.Va. 779 , 253 S.E.2d 54 (1979), indicates that "W. Va.Code ž 53-5-3 has been held to be applicable only where an injunction is the exclusive relief sought, and not where injunctive relief is merely ancillary to the primary claim advanced in the case. Lewis, Hubbard & Co. v. Pugh, 115 W.Va. 232 , 174 S.E. 880 (1934); State v. Fredlock, 52 W.Va. 232 , 43 S.E. 153 (1902)." See also Syl. pt. 2, State v. Fredlock, 52 W.Va. 232 , 43 S.E. 153 ("A court *776 having jurisdiction in personam, may require the defendant to do, or refrain from doing, beyond its territorial jurisdiction, anything which it has power to require him to do or omit within the limits of its territory."). Interpreting the language of the Shobe holding, we discern that "exclusive" "`is synonymous with the words "only" and "sole[]",'" 21A Michie's Jur. Words and Phrases 159 (1987) (quoting United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W.Va. 374, 376 , 135 S.E. 399, 400 (1926)), and that "ancillary" signifies "a proceeding attendant upon or which aids another proceeding considered as principal," Black's Law Dictionary 85 (6th ed.1990).

Looking to the petition filed in John's inverse paternity proceeding, we find that John requested both a determination of paternity and injunctive relief in aid of obtaining, or ancillary to, such a paternity determination. Under the applicable statutory law, John was entitled to petition the court for an ascertainment of his fatherhood of Anne's child. See W. Va.Code ž 48A-6-1(a)(7) (1989) (Cum. Supp.1991) ("(a) A civil action to establish the paternity of a child ... may be instituted, by verified complaint, in the circuit court of the county where the plaintiff, the defendant or the child resides. Such action may be brought by any of the following persons: ... (7) A man purporting to be the father of a child born out-of-wedlock, when there has been no prior judicial determination of paternity."). Likewise, the Circuit Court of Cabell County had express jurisdiction to hear the paternity matter raised by John because John was, at that time, a resident of Cabell County.

With respect to the specific contents of John's inverse paternity petition, it is apparent from the record evidence that he filed his action both to determine whether he was, in fact, the father of Anne's child and to prevent Anne from placing her child for adoption until his paternity had been established or refuted. In this regard he expressed to the circuit court, during the ex parte temporary injunction hearing, his desire to obtain a conclusive determination of his paternity or lack thereof. Moreover, one may infer, from reviewing the petition filed by John, that injunctive relief would have been meaningless without an attendant determination that John was the father of Anne's child. In this manner, if all that John sought and received was the injunctive relief at issue, he would have been powerless to assert his parental and/or custodial rights vis-a-vis the child unless he had been judicially determined to be the child's father. Thus, because the injunction issued by the circuit court was merely ancillary to the primary inverse paternity proceeding, the goal of which was to determine whether John was the father of Anne's child, the court was empowered to enjoin Anne's adoptive placement of Baby Boy Conaty, although the contemplated acts were likely to occur outside of Cabell County, West Virginia.

Additionally, the circuit court was entitled to entertain John's request for injunctive relief and to grant such relief in order to preserve the status quo pending the resolution of the underlying inverse paternity action. We long have recognized the propriety of issuing an injunction to preserve the status quo of pending litigation. See, e.g., Syl. pt. 2, Powhatan Coal & Coke Co. v. Ritz, 60 W.Va. 395 , 56 S.E. 257 (1906) ("The function of a preliminary injunction, whether it be prohibitory or mandatory, is to preserve the status quo until, upon final hearing, the court may grant full relief."), overruled on other grounds by Eastern Assoc. Coal Corp. v. Doe, 159 W.Va. 200 , 220 S.E.2d 672 (1975). See also Syl. pt. 3, Eastern Assoc. Coal Corp. v. Doe, 159 W.Va. 200 , 220 S.E.2d 672 ("A court may protect its power to determine its own jurisdiction by issuing a temporary injunction to maintain the status quo pending an adversary determination of its own jurisdiction."); Syl. pt. 1, in part, Leslie Co. v. Cosner Coal Co., 131 W.Va. 483 , 48 S.E.2d 332 (1948) (permitting injunction to be dissolved where no clear showing is made requiring injunctive relief "for the preservation of the status quo "). Thus, the circuit court had the authority to issue injunctive relief in John's inverse paternity action in order to preserve, to the extent possible, the status quo until a conclusive determination of John's paternity could be made. [58]

*777 Finally, the circuit court was permitted to issue a temporary injunction on an ex parte basis. We specifically have recognized that "[a] circuit court judge may issue a valid injunction on the ex parte motion of a litigant." Syl. pt. 1, Eastern Assoc. Coal Corp. v. Doe, 159 W.Va. 200 , 220 S.E.2d 672 . Because of the one-sided nature of the proceedings surrounding such an order and the respect we afford the rights of the adverse party, "[a]n ex parte preliminary injunction is an extraordinary remedy which is justified only under extraordinary circumstances." Syl. pt. 1, Ashland Oil, Inc. v. Kaufman, 181 W.Va. 728 , 384 S.E.2d 173 (1989). When faced with a request for ex parte injunctive relief,

"a court shall grant such an injunction only if it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. The applicant's attorney must certify to the court the efforts, if any, which have been made to give the notice and the reasons supporting any claim that notice should not be given."

Syl. pt. 1, in part, United Mine Workers of Am., Local Union 1938 v. Waters, 200 W.Va. 289 , 489 S.E.2d 266 (1997) (quoting Syl. pt. 3, in part, Ashland Oil, Inc. v. Kaufman, 181 W.Va. 728 , 384 S.E.2d 173 ).

An examination of the injunctive order indicates that the circuit court, in granting ex parte injunctive relief, properly complied with the prerequisite findings mandated by United Mine Workers and Ashland. The court specifically found "[t]hat [John], as well as any prospective adopting parents, will be irreparably harmed if the unborn child is placed for adoption without the establishment of [John's] paternity and without [John's] consent," thereby rendering necessary the injunction prohibiting Anne from placing her child for adoption. Furthermore, the transcript of the ex parte temporary injunction hearing reflects the attempts made by John's counsel to provide notice to Anne of the paternity petition and injunctive proceedings:

A. [by John] We tried to serve her brother, Brian,ÔÇöShe lived with her brother Brian on Eleventh AvenueÔÇömultiple times and no one was home. We tried to serve her parents in town. No one there.

She told me David Lockwood was her attorney. Also Brian told me David Lockwood was her attorney. I had a former attorney in February who had talked with Mr. Lockwood and said that he was her attorney, but evidentlyÔÇö

Q. [by Court] [Lockwood] represented to the Court yesterday or today that he was not representing her.

A. Exactly.

Q. So, that is why we couldn't let service go through him.

. . . . .

MS. EIFERT [counsel for John]: My office attempted to serve [Anne] two times at her previous residence where she resided with Brian; and, in fact, a person in the neighborhood said Ms. Conaty did not reside there any more. We have since that still attempted to serve it at that residence but Brian has never been there to pick it up.

The week before the hearing we tried serving it Wednesday, Thursday, Friday at the Conaty home on Thirteenth Avenue [sic] and they were not home.

We went to the Circuit Clerk and had it sent by certified mail under Rule 4 and then today is the first time it is in the newspaper by order of publication; and I also, as [John] said, on June the 5th sent a courtesy copy to Dave [Lockwood] because I had understood from John that Dave was her attorney.

Following this exchange, the court specifically found that "I am of the opinion that [John] has used due diligence in order to get personal service upon [Anne]. I don't know what else they could do; and, therefore, the Court feels comfortable in having the ex parte hearing in this matter." Hence, the court recognized *778 the circumstances under which ex parte injunctive relief is appropriate and found that such relief was appropriate in the underlying inverse paternity action. In sum, it appears that, on several grounds, the circuit court possessed subject matter jurisdiction to issue the ex parte temporary injunction. [59]

The Circuit Court of Cabell County also had personal jurisdiction to enjoin Anne from placing her child for adoption. Pursuant to W. Va.Code ž 48A-6-1(b) (1989) (Cum.Supp.1991), "[a] person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for an action brought under this article with respect to a child who was conceived by that act of intercourse." The parties do not dispute that the conception of Baby Boy Conaty occurred anywhere but in the state of West Virginia. Accordingly, it appears that both Anne and John, by their actions, have submitted to personal jurisdiction in West Virginia with respect to all proceedings pertaining to the paternity of Baby Boy Conaty. Since the circuit court granted the ex parte temporary injunction incident to the underlying inverse paternity proceeding, the circuit court properly asserted personal jurisdiction to enjoin Anne from placing her child for adoption until the child's paternity had been established.

Furthermore, the circuit court was permitted to exercise personal jurisdiction over Anne in relation to issuing the ex parte temporary injunction pursuant to the explicit law of injunctions. As we recognized above, a circuit court may enter an ex parte temporary injunction where the circumstances warrant such relief. Given the circuit court's authority to issue temporary injunctions ex parte, we are compelled to find the court could properly enter an injunction despite Anne's contentions that she did not have prior notice of the injunction hearing and that she was absent from the hearing as a result of this lack of notice. Implicit in the term " ex parte " is the recognition that one party seeks judicial relief on his/her own initiative despite the fact that the other party is not then presently before the court. The very definition of " ex parte " commands such an interpretation: "`[e]x parte' is defined as on one side only; by or for one party; done for, in behalf of or on the application of, one party only." 21A Michie's Jur. Words and Phrases 64 (Supp.1997) (citing In re Kaufman, 187 W.Va. 166 , 171 n. 5, 416 S.E.2d 480 , 485 n. 5 (1992) (internal quotations and citation omitted)). Therefore, the fact that we have permitted courts to issue injunctive orders ex parte implies that we also have approved the entry of such orders despite the adverse party's absence. Reiterating our finding set forth above, because we have determined that the circuit court properly evaluated and applied the factors requisite to issuing ex parte injunctive relief, we conclude that the circuit court did not lack personal jurisdiction to enjoin Anne's adoptive placement of her infant son solely because the relief was granted ex parte and not in Anne's presence.

Moreover, the statutory provision governing the issuance of injunctions, generally, places the question of whether the party sought to be enjoined should be given notice of the injunction proceedings within the sound discretion of the circuit court.

[A]ny court or judge may require that reasonable notice shall be given to the adverse party, or his attorney-at-law, or in fact, of the time and place of moving for it, before the injunction is awarded, if in the opinion of the court or judge it be proper that such notice should be given.

W. Va.Code ž 53-5-8 (1955) (Repl.Vol.1994) (emphasis added). Likewise, this Court has approved the ability of the circuit court to discretionarily provide notice to the adverse party. See Ashland Oil, Inc. v. Kaufman, 181 W.Va. at 731 & n. 4, 384 S.E.2d at 176 & n. 4 (reaffirming our prior approval of the discretionary notice provision contained within W. Va.Code ž 53-5-8 and reiterating that "`a circuit judge[,] or judge thereof in vacation, on application for injunction, may exercise a sound discretion in the matter of requiring notice to be given to the adverse *779 party[,] or his attorney[-]at[-]law or in fact, of the time and place of moving for it before the injunction is awarded'" (quoting Syl. pt. 1, in part, Kalbitzer v. Goodhue, 52 W.Va. 435 , 44 S.E. 264 (1903))). Thus, it again appears that the circuit court's assertion of jurisdiction over Anne in its issuance of the ex parte temporary injunction was appropriate. Based upon our foregoing analysis, we conclude that the Circuit Court of Cabell County had both subject matter and personal jurisdiction to grant the ex parte temporary injunction requested by John. As such, we further find that the circuit court, in the trial of John's civil action, did not err in instructing the jury that the injunction order "was not void." [60]

Next, the defendants argue that the circuit court erroneously instructed the jury that an enjoined party must obey an injunction, even if it was erroneously granted, unless the injunction is absolutely void or until it is subsequently vacated or dissolved. See Plaintiff's Instruction No. 38 (as amended). As we noted above, the formulation of a trial court's jury charge is within its discretion and, where the instruction given is a correct statement of the law, we are reluctant to find an abuse of the court's discretion. See, e.g., Syl. pt. 4, State v. Guthrie, 194 W.Va. 657 , 461 S.E.2d 163 (1995). Upon a review of the applicable law, we are convinced that the instruction challenged by the defendants in this instance was, in fact, a correct statement of the applicable law. In Syllabus point 2 of Eastern Associated Coal Corp. v. Doe, 159 W.Va. 200 , 220 S.E.2d 672 , we recognized that "[a] court having jurisdiction of the parties and colorable jurisdiction of the subject matter may issue an injunction which must be obeyed regardless of whether it is ultimately determined to have been erroneously or improvidently awarded." See also Syl. pt. 3, State ex rel. Askin v. Dostert, 170 W.Va. 562 , 295 S.E.2d 271 (1982) ("Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular, or is improvidently rendered, does not justify one in disregarding or violating the order, and then citing the court's error as a defense to a charge of contempt. Where, however, the court or judge lacks jurisdiction, or is without power or authority to render the order, refusal to comply with such order may not be punished as contempt."); State v. Fredlock, 52 W.Va. 232, 243 , 43 S.E. 153, 157 (1902) ("When a court has jurisdiction in the sense of power to decide whether an injunction or other writ shall be awarded, the party against whom it issues is bound to obey it, although the awarding of it may have been erroneous, and, in that sense, improper and improvident, and it may operate unreasonably and unjustly. He must obey it until vacated or dissolved." (citations omitted)).

Reviewing the instruction challenged in this instance by the defendants, we can find no error in the statement of the law or in the circuit court's decision to so instruct the jury. Our examination of this instruction as it was originally tendered to the circuit court further indicates that its basis in law was correct. In support of this instruction, John cites Doe and Fredlock , both of which we have found to be supportive of the statement contained in the challenged instruction. Therefore, we find that the circuit court did not err in granting this instruction over the defendants' objections.

The defendants' third allegation of error with regard to the injunction instructions concerns the circuit court's refusal to give an instruction proffered by the defendants, directing: "You are instructed that Anne Conaty did not violate the injunction issued by the Circuit Court of Cabell County, West Virginia, on June 26, 1991, because the Circuit Court of Cabell County was without jurisdiction to prevent her from placing her child for adoption." Defendants' Instruction No. 3. In reviewing arguments pertaining to a circuit court's refusal to give a particular jury instruction, "[i]t will be presumed that a trial court acted correctly ... in refusing to *780 give instructions to the jury, unless it appears from the record in the case ... that the instructions refused were correct and should have been given." Coleman v. Sopher, 201 W.Va. 588, 602 , 499 S.E.2d 592, 606 (1997) (internal quotations and citations omitted). Where the instruction is determined to have been correct such that it should have been given,

"[a] trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense."

State v. Wade, 200 W.Va. 637, 646 , 490 S.E.2d 724, 733 (quoting Syl. pt. 11, State v. Derr, 192 W.Va. 165 , 451 S.E.2d 731 (1994)), cert. denied, ___ U.S. ___, 118 S.Ct. 576 , 139 L.Ed.2d 415 (1997).

Our first inquiry, then, is whether the instruction proffered by the defendants but refused by the circuit court was a correct statement of the applicable law. Although we have determined that the circuit court properly exercised its authority by entering the ex parte temporary injunction to prohibit Anne from placing her child for adoption, we are concerned about the subsequent ramifications of this order. Our statutory and jurisprudential law permits a court to assert jurisdiction over a party who is not presently before it, and who may not have received notice of the judicial hearing, for the purpose of entering an injunction to prohibit him/her from conducting him/herself in a particular manner. This assumption of personal jurisdiction is well documented in the law of this State and cannot be disputed.

The problem arises, however, when one attempts to enforce an injunction that has been entered in the aforementioned manner against a party who, even after the entry of the injunction, cannot be personally served with the prohibitory order. In such a case, a court may order service of the injunction order by publication. While the enjoined party would be required to comply with the prohibitory terms of the injunction, it is conceivable that he/she may never have acquired actual notice of its terms. See 14A Michie's Jur. Notice ž 3, at 4-5 (1989) ("Actual notice is actual knowledge, by the party, of the very matter or thing of which he is said to have notice." (footnote omitted)). Though we have held "[w]here a party has actual notice of an order of injunction, although it may not have been yet served, or be defectively served upon him, the order becomes operative on him from that time," Syl. pt. 3, Wenger v. Fisher, 55 W.Va. 13 , 46 S.E. 695 (1904); Syl. pt. 2, Osborn v. Glasscock, 39 W.Va. 749 , 20 S.E. 702 (1894) (same), we remain concerned by the potential inequities of this situation.

More simply stated, we are hesitant to require a party to comply with the terms of an injunctive order where it is questionable whether the enjoining court could, within the bounds of due process, compel such compliance. In this regard, we look to W. Va.Code ž 61-5-26 (1923) (Repl.Vol.1997), which defines the criminal offense of "contempt of court":

The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: ... (d) disobedience to or resistance of any ... person, to any lawful process, judgment, decree or order of the said court.... No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause, on some certain day, and shall have failed to appear and show cause.

See also W. Va.Code ž 62-6-6 (1965) (Repl. Vol.1997) ("No court shall impose a fine upon a[ny] person, for disobedience of its process or any contempt, unless he be present in a court at the time, or shall have been served with a rule of the court, returnable to a time certain, requiring him to show cause why the fine should not be imposed, and shall have failed to appear and show cause."). See generally State ex rel. Arnold v. Conley, 151 W.Va. 584, 587 , 153 S.E.2d 681, 683 (1966) (recog

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