Appendix — Leavitt v. Kessel
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“ 98 939 DECS -1998
No. 98- OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1998
DAVID KEENE LEAVITT, ANNE GILMORE CONATY,
ELEANOR WOLFE CONATY, THOMAS J. CONATY,
and
BRIAN P. CONATY
Petitioners,
Vv.
JOHN WOODRUFF KESSEL,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Appeals of West Virginia
APPENDIX
LONNIE C. SIMMONS
Counsel of Record
Law Office of P. Rodney Jackson
410 Washington Street, East
Suite 307
P.O. Box 3785
Charleston, West Virginia 25337
(304) 342-4616
Attorney for Petitioners
i
APPENDIX
Published Decision in Kessel v. Leavitt et al., Affirming
PE CY 2 TOR ik kos oe ck x. la
Order Denying Motion To Exceed Page Limit
Required For Petition For Rehearing
ROU eis ek ooo ws 232a
Order Denying Petition For Rehearing
GE PE rs oh eck ek be 234a
Order Denying Petition For Rehearing Filed Within
Required Page Limit
NE a SD sie a Ng cK Ss eee 235a
Judgment Order in Kessel v. Leavitt et al., No. 92-C-2141
(Circuit Court of Cabell County, West Virginia,
i ae. | Ip ne On eae eae 236a
Order Denying Motion For New Trial (December 28,
SWPP esas kPAGUN Ck > 1a eee aks 240a
Order Denying Motion To Alter Or Amend Judgment
COMI Es LS) saa heck in ks 241a
Order Denying Motion To Review Punitive Damages
Award (December 28, 1995) ........5...... 243a
Order On Motion For Stay Of Judgment (December 28,
ROEER Re Olas haw 0 cad OR Kes 244a
Order Granting Appeal in Kessel v. Leavitt et all,
No. 23557 (Supreme Court of Appeals
of West Virginia, June 26, 1996) ............ 248a
Order Requiring Only Leavitt To Post $7 Million “Appeal
Re CIMMYT TOOTS os sig ei oe ko 250a
Order Staying “Appeal Bond” Requirement
fe gL 3 8 SIR one eee ore 252a
Order Requiring Only Leavitt To Post $1.1 Million
“Appeal Bond” (February 6, 1997) .......... 254a
SR NO OO ee ee TT
il
Order Denying Reconsideration Of “Appeal Bond”
Requirement (February 19, 1997) ........... 256a
Order Dismissing Leavitt From Appeal
CUNGTE cay TES 6 6a 6S ee ee ee ee 258a
Order Denying Leavitt’s Petition For Writ Of Certiorari
In Leavitt v. Kessel, No. 97-124 (United States
Supreme Court, October 6, 1997) ........... 259a
la
IN THE SUPREME COURT OF APPEALS
OF WEST VIRGINIA
January 1997 Term
No, 23557
JOHN WOODRUFF KESSEL AND
RAY MILLER KESSEL,
Plaintiffs Below, Appellees and Cross-Appellants,
Ws
DAVID KEENE LEAVITT,
ANNE GILMORE CONATY,
ELEANOR WOLFE CONATY, THOMAS J. CONATY,
AND BRIAN P. CGNATY,
Defendants Below, Appellants and Cross-Appellees.
Appeal from the Circuit Court of Cabell County
Honorable O.C. Spaulding,
sitting by temporary assignment
Civil Action No. 92-C-2141
AFFIRMED.
Submitted: January 28, 1997
Filed: July 22, 1998
Lonnie C. Simmons
DiTrapano & Jackson
Charleston, WV
Attorney for Appellants
Janis K. Stocks
San Diego, CA
Attorney for Amicus
Curaie
Academy of California
Adoption Lawyers
Academy of California
Adoption Lawyers
Mitchell Wendell
Attorney for Amicus
Curaie
Association of
Administrators of the
Interstate Compact on
the Placement of
Children
Office of Secretariat
~ Washington, D.C.
2a
Marvin W. Masters
Paula L. Wilson
Masters & Taylor
Charleston, WV
Attorneys for Appellees
Brendon C. O’Shea
Gleason, Dunn, Walsh
& O’Shea
Albany, New York
Attorney for Amicus
Curaie
The National Council
for Adoption
Jon R. Ryan
Attorney for Amicus
Curaie
National Organization
for Birthfathers and
Adoption Reform
Punta Gorda, Florida
JUSTICE DAVIS delivered the Opinion of the Court.
RETIRED JUSTICE MCHUGH sitting by temporary
assignment.
JUSTICE MCCUSKEY not participating.
CHIEF JUSTICE WORKMAN concurs, in part, and
dissents, in part, and reserves the right to file a separate
opinion.
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SYLLABUS BY THE COURT
1.“““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)].” Syllabus point 1, Walker
v. Monongahela Power Co., 147 W. Va. 825, 131 S.E.2d 736
(1963).
2. 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.
3. 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.
4. 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.
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5. 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.
6. A parent 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 nght accrues the
instant the child is born.
7. 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 nght to establish or maintain a parental or
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.
8. 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
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TE RP ae Se a goon eh Ue lat
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parental or custodial relationship was necessary to protect the
chiid from physical, mental, or emotional harm, as
contemplated by W. Va. Code § 49-i-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 nght 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).
9. A parent cannot charge his/her child’s other parent with
tortious interference with parental or custodial relationship if
both parents have equal nights, or substantially equal nghts (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 nghts identical to those of the
child’s biological mother), to establish or maintain a parental
or custodial relationship with their child.
10. The Interstate Compact on the Placement of Children
(ICPC), set forth in W. Va. Code § 49-2A-1, et seg., does not
govern pre-adoptive or adoptive placements into a state or
nation which is not a party state to the ICPC.
11. The Uniform Child Custody Jurisdiction Act
(UCCIJA), W. Va. Code § 48-10-1, et seg., does not govern
actions whose main purpose is the establishment of paternity as
such actions are generally in the nature of support proceedings
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which are specifically excluded from the governance of the
UCCIJA. W. Va. Code § 48A-6-4 (1989) (Cum. Supp. 1991);
§ 48-10-2 (1981) (Repl. Vol. 1996).
7a
Davis, Justice:'
The appellants herein, and defendants below, David Keene
Leavitt, Anne Gilmore Conaty, Eleanor Wolfe Conaty, Thomas
J. Conaty, and Brian P. Conaty,’ 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.
‘By administrative order entered January 5, 1998, this Court recalled to
active service retired Justice Thomas E. McHugh to continue his
participation in the consideration and decision of this appeal.
*David Keene Leavitt, who was named as a defendant to the underlying
action, unsuccessfully attempted to appeal the adverse jury verdict rendered
against him. This Court dismissed his appeal when he refused to post the
requested appeal bond. For further discussion of the dismissal of Leavitt's
appeal, see infra note 20 and Section IIL.A.
8a
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. 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.* Anne
visited with a fnend 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
‘Neither Anne nor John dispute that Anne’s pregnancy resulted from their
relationship or that they are the biological parents of this child.
‘At the time of her pregnancy, Anne was an elementary school teacher.
During this same period of time, John was fulfilling his residency
requirements for the completion of his specialized medical training.
SIN en cn a
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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.°
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
*Anne testified that she first spoke with Leavitt while she was in North
Carolina.
10a
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’® 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
‘The atypical phrase “inverse paternity action” refers to a paternity
proceeding initiated by a putative father to determine whether he is, in fact,
the biological father of a nonmarital child. In such a proceeding, the
biological mother of the child is generally named as a defendant to the
action. See, e.g., In re Adoption of Pierce, 15 Cal. App. 3d 244, 247, 93
Cal. Rptr. 171, 172 (1971); In re Adoption of Pierce, 5 Cal. App. 3d 316,
318, 85 Cal. Rptr. 104, 104-05 (1970). See also Hixon v. Buchberger, 306
Md. 72, 73-74, 507 A.2d 607, 607 (1986) (describing lawsuit initiated by
putative father to establish paternity of child as “reverse paternity action”).
The unusual arrangement of the parties to an inverse paternity action is in
contrast to the more common scenario in which a biological mother, a
nonmanital child, or a representative of a state agency initiates a proceeding
against a putative biological father, thereby naming him as a defendant to
the action.
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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 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, Bnan 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.’ 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
"While Leavitt established the initial contact with the Oregon prospective
acoptive parents, Anne also participated, to some degree, in the selection of
this family.
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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.*
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.? On July 25, 1991, Anne executed the
remaining documents necessary for placement of her child with
*The Oregon attorney wanted to notify John of the adoption arrangements
between Anne and the Oregon couple even though John did not have, under
then-existing Oregon law, an unconditional right either to notice of Anne’s
adoptive placement of their child or to withhold his consent to this adoption.
See Or. Rev. Stat. § 109.092 (1975) (Act, 1975 Oregon Laws 1600, ch. 640,
§ 2) [current Or. Rev. Stat. § 109.092 (1995) (Main Vol. 1997)] (regarding
consent to adoption by mother who is not marnied); Or. Rev. Stat. § 109.096
(1983) (Act, 1983 Oregon Laws 1272, 1283, ch. 709, § 39) [current Or.
Rev. Stat. § 109.096 (1995) (Main Vol. 1997)] (defining notice
requirements); Or. Rev. Stat. § 109.225 (1991) (Main Vol. 1997)
(describing procedures for registration of paternity actions). Leavitt,
nowever, opposed such notification presumably because this notice could
have led to John’s registration of his inverse paternity action in Oregon and
the attendant difficulty of locating a permanent adoptive placement for
Anne’s unborn child.
*Anne registered at the hospital using the name “Rita Wiseman”. Anne
testified that she used an alias because she was afraid of John and desired
to maintain her privacy. Leavitt's client file on Anne demonstrates that
Leavitt and Anne contemplated her use of this alias during one of their
initial consultations.
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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 ord; 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 in the yellow
pages of the Huntington, West Virginia, telephone book for
Leavitt in Beverly Hills, California,'° 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
‘Leavitt testified that he placed an advertisement in the Huntington
telephone book yellow pages only once, in 1991. In this advertisement,
Leavitt represented that he provided legal services in the field of adoption
law.
eres
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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,'' 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, Dr.
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
''Presumably, John sought information regarding Anne’s location in order
to obtain information from her regarding the whereabouts of and pre-
adoptive arrangements concerning Baby Boy Conaty.
lSa
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
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
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to questioning.’ 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.”'’ 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
"Defendant Leavitt testified that the California Rules of Evidence
governing attorneys required him to affirmatively assert the attorney-client
privilege in this situation. See Cal. Evid. Code § 955 (1965) (Main Vol.
1995) (defining situations in which attorney is required to claim attorney-
client privilege).
'’The concealment portion of the note arose from Leavitt’s concern that
John would attempt to thwart the Canadian adoption. Pursuant to the law
of Alberta, Canada, as it existed in 1991, once a child had resided with legal
guardians for an uninterrupted period of six months, the Alberta courts were
almost certain to approve the petition of the legal guardians to adopt that
child. See Alexandra Maravel, /ntercountry Adoption and the Flight from
Unwed Fathers’ Rights: Whose Right Is It Anyway?, 48 S.C. L. Rev. 497,
522-23 (1997). Once this six-month period had expired, it would be very
difficult to persuade the Canadian judiciary to remove the child from the
prospective adoptive home. See id.
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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
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adoption.’ 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.
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],'* 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'® and
tortious interference'’. The jury further awarded John
'*On August 26, 1991, the Court of Queen’s Bench of Alberta, Judicial
District of Calgary, had terminated Anne’s parental nghts and approved the
Canadian couple as the sole legal guardians of Baby Boy Conaty.
'*During the course of the proceedings below, the circuit court granted a
directed verdict in favor of the defendants with respect to Dr. Kessel’s
claims for interference with his grandparental rights. Accordingly, for the
purposes of accuracy and ease of reference, the term “plaintiff” hereinafter
will be used to refer solely to John.
'*The jury apportioned the fault of the defendants with regard to fraud as
follows: Leavitt 55% fault; Brian 25% fault; Anne 10% fault; Dr. Conaty
5% fault; and Mrs. Conaty 5% fault.
The jury assigned the following percentages of fault for the tortious
interference claim: Leavitt 35% fault; Bnan 25% fault; Anne 30% fault; Dr.
Conaty 2% fault; and Mrs. Conaty 8% fault.
tetas ac Ng a se
smc: ow scams ea at ges Tica IMG IGT EAD TG ace ee
19a
compensatory damages of $2 million’* and punitive damages
of $5.85 million’®. From these verdicts, the defendants appeal
to this Court.”
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 (UCCIJA), the night
of a parent to the custody of his/her child, the defendants’
intent to violate John’s due process and equal protection nghts,
'§See infra Section II.E.1. for the specific amounts of compensatory
damages calculated by the jury. The circuit court subsequently amended
the compensatory damages award, by order dated December 28, 1995. In
this order, the circuit court determined that the plaintiff's expenses were
actually $116,687.47 as opposed to the $150,000.00 awarded by the jury.
Thus, the compensatory damages award, as amended, is approximately
$1.97 million, exclusive of any applicable interest which has accrued on this
judgment.
"See infra Section ILE.2. for a discussion of the punitive damages
«warded by the jury.
20A ithough defendant Leavitt requested and was granted leave to appeal
to this Court, his appeal herein was dismissed due to his failure to post the
appeal bond required of him. See supra note 2 and infra Section II.A. for
further treatment of this Court’s dismissal of Leavitt’s appeal.
20a
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 tnal 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,
[iJn 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 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, __ W. Va. ___, 492 S.E.2d 167
(1997) (“Questions of law are subject to a de novo review.”’);
ee en we a a
A Re LL etl ale Mt Bla
en Ee ae ae nee me
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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.
The defendants, Anne, Dr. and Mrs. Conaty, and Bran,
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
22a
contemplated by W. Va. Code § 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 § 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
ee ge ee
23a
long-arm statute, Leavitt transacted business, contracted to
supply services, and caused tortious 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 mainienance 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
24a
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 appeai. 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
certioran. See Leavitt v. Kessel, US. _,118S. 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
‘ ee ee eee ee ee
a hail Siceadeo es,
25a
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 § 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 § 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 . . . 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 § 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
26a
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 nght 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)).”'
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
*!See also Duncan v. Tucker County Bd. of Educ., 149 W. Va. 285, 288,
140 S.E.2d 613, 615 (1965) (“Jurisdiction of the person may be conferred
by consent or waiver[.]” (emphasis added)); Morris v. Calhoun, 119 W. Va.
603, 605, 195 S.E. 341, 344 (1938) (“In the ordinary civil case,
jurisdictional questions, especially those respecting jurisdiction of the
parties, may be waived[.]”). See generaliy 11B Michie’s Jur. Jurisdiction
§ 21, at 46 (1986) (“Jurisdiction of the person may be acquired by
implication arising out of some act done[.]”) and § 35, at 60 (“Because
objections to the court’s jurisdiction over specific persons involve the rights
of individuals to object to the exercise of judicial authority over them and
not the power inherent in the court to resolve conflicts between individuals
properly before it, parties can confer personal jurisdiction expressly or by
their acts or failures to act.” (ermphasis added)).
ERR CeO es ANS ck TE EA a es PS 28
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personal jurisdiction over their codefendant, Leavitt.” 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 i eavitt. ... 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,
[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,
2The remaining defendants do not argue or otherwise complain that the
circuit court’s exercise of personal jurisdiction as to them was improper.
28a
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).””
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
coappellanit/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.
*See also United States Dep't of Labor v. Triplett, 494 U.S. 715, 720, 110
S. Ct. 1428, 1431, 108 L. Ed. 2d 701, 713 (1990) (“Ordinarily, . . . a litigant
‘must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.”’” (quoting Valley
Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 474, 102 S. Ct. 752, 760, 70 L. Ed. 2d 700, 711
(1982) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205,
45 L. Ed. 2d 343, 355 (1975) (citations omitted)) (footnote omitted))); New
Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464
(Sth Cir. 1984) (acknowledging that “‘a party has no standing to assert a
right if it is not his own’” (quoting United States v. 936.71 Acres of Land,
418 F.2d $51, $56 (Sth Cir. 1969)) (footnote omitted)); DuPree v. United
States, 559 F.2d 1151, 1153 (9th Cir. 1977) (“[T]he presence of harm to a
party does not permit him to assert the rights of third parties in order to
obtain redress for himself.” (citation omitted)).
oe eat are
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5 + 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.’” “Jd. (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
30a
v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,[ 102,] 2
L. Ed. 2d 80[, 84] (1957)[)].
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.” Jd.
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 a2 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
Soh Coes Visti: thahie dt oe
AG wanda Oia Wee ee ets ES “Se
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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, __ W. Va.
__,___ S.E.2d__ (No. 24902 June 12, 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
32a
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 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 § 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
33a
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 § 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, OF
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
ee
34a
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 decisions.“ Therefore, the various decisions that
**See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (recognizing
women have right to seek and obtain abortion without notifying their
husbands); Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976) (plurality opinion) (declaring
women have right to seek and obtain abortion without spousal consent or,
in the case of unmarried minors seeking and obtaining abortion, without
parental consent); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d
35a
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.
147 (1973) (holding women have qualified right to terminate pregnancy
during period of fetal nonviability); Eisenstadt v. Baird, 405 U.S. 438, 92
S. Ct. 1029, 31 L. Ed. 2d 349 (1972) (finding unmarried persons have right
to obtain contraceptives); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.
1678, 14 L\Ed. 2d 510 (1965) (acknowledging married persons have right
to obtain contraceptives); Skinner v. Oklahoma ex. rel. Williamson, 316
US. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (declaring individuals have
fundamental right of procreation). Cf Doe v. Smith, 486 U.S. 1308, 108
S. Ct. 2136, 100 L. Ed. 2d 909 (1988) (refusing to permit unwed biological
father to enjoin unwed biological mother from obtaining abortion).
In addition, individuals have a firmly established right to travel. See
e.g., Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329, 22
L. Ed. 2d 600, 612 (1969) (“[T]Jhe nature of our Federal Union and our
constitutional concepts of personal liberty unite to require that all citizens
be free to travel throughout the length and breadth of our land uninhibited
by statutes, rules, or regulations which unreasonably burden or restrict this
movement.”), overruled in part on other grounds by Edelman v. Jordan,
415 US. 651, 94S. Ct. 1347, 39 L. Ed. 2d 662 (1974), United States v.
Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 1178, 16 L. Ed. 2d 239, 249
(1966) (“The constitutional right to travel from one State to another, and
necessarily to use the highways and other instrumentalities of interstate
commerce in doing so, occupies a position fundamental to the concept of
our Federal Union.”); Edwards v. California, 314 U.S. 160, 178, 62 S. Ct.
164, 169, 86 L. Ed. 119, 127 (1941) (“The right to move freely from State
to State is an incident of narional citizenship protected by the privileges and
immunities clause of the Fourteenth Amendment{.]”); Williams v. Fears,
179 U.S. 270, 274, 21 S. Ct. 128, 129, 45 L. Ed. 186, 188 (1900)
(“Undoubtedly the right of locomotion, the right to remove from one place
to another according to inclination, is an attribute of personal liberty, and
the right, ordinarily, of free wansit from or through the territory of any State
is a right secured by the Fourteenth Amendment and by other provisions of
the Constitution.”).
36a
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, Jn 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).”° 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 nights 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,
*°For further treatment of the abolishment of the maternal preference and
the recognition of a parent’s custodial rights, see Section II.C.3., infra.
5
4
nt ene |
37a
[w]hen an unwed father demonstrates a full
commitment to the responsibilities of 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.”* 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 vy. 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
**The Fourteenth Amendment to the United States Constitution guarantees
that no “State [shall] deprive any person of life, liberty, or property, without
due process of law{.]” U.S. Const. amend. XIV, § 1.
38a
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 compei 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.!?7!
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
Article III, Section 10, of the West Virginia Constitution ensures that
“[{njo person shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers.”
*}
3
4
39a
and responsibilities”’).”*
**Many of our sister jurisdictions have also recognized an unwed
biological father’s interest in maintaining a parent-child relationship with
his biological child when he demonstrates a willingness to accept the
responsibilities of fatherhood. See, e.g., Adoption of Kelsey S., 1 Cal. 4th
816, 849, 4 Cal. Rptr. 2d 615, 635, 823 P.2d 1216, 1236 (1992) (“If an
unwed father promptly comes forward and demonstrates a full commitment
to his parental responsibilities--emotional, financial, and otherwise--his
federal constitutional right to due process prohibits the termination of his
parental relationship absent a showing of his unfitness as a parent. Absent
such a showing, the child’s well-being is presumptively best served by
continuation of the father’s parental relationship. Similarly, when the father
has come forward to grasp his parental responsibilities, his parental rights
are entitled to equal protection as those of the mother.” (footnote omitted)):
Jermstad v. McNelis, 210 Cal. App. 3d 528, 550, 258 Cal. Rptr. 519, 532
(1989) (recognizing that “where the natural father has promptly come
forward to grasp his opportunity interest and diligently pursued that
interest” he has “‘the opportunity to establish a protected custodial
relationship”’” with his child (quoting /n re. Baby Girl M., 37 Cal. 3d 65, 74,
207 Cal. Rptr. 309, 315, 688 P.2d 918, 924 (1984))); Appeal of H.R., 581
A.2d 1141, 1162 (D.C. App. 1990) (per curiam) (separate opinion of
Ferren, Assoc. J.) (“[W]hether a particular unwed, noncustodial father’s
opportunity interest will be entitled to substantial protection under the due
process clause depends on application of such factors as (1) the presence or
absence of an established relationship between the child and an existing
family; (2) whether the father has established a custodial, personal, or
financial relationship with his child, or assumed responsibilities during the
mother’s pregnancy; (3) the impact, if any, of state action on the father’s
opportunity to establish a relationship with his child; (4) the age of the child
when the action to terminate parental rights is initiated; and (5) the natural
father’s invocation or disregard of statutory safeguards designed to protect
his opportunity interest.”); Jn the Matter of Adoption of Doe, 543 So. 2d
741, 748 (Fla. 1989) (“[T]he biclogical relationship offers the parent the
opportunity to assume parental responsibilities. Parental rights based on the
biological relationship are inchoate, it is the assumption of the parental
responsibilities which is of constitutional significance.”); Jn re Baby Girl
Eason, 257 Ga. 292, 296, 358 S.E.2d 459, 462 (1987) (“[U]nwed fathers
gain from their biological connection with a child an opportunity interest to
develop a relationship with their children which is constitutionally
40a
protected. This opportunity interest begins at conception and endures
probably throughout the minority of the child. But it is not indestructible.
It may be lost.”); /n the Matter of the Petition of Steve B.D., 112 Idaho 22,
25, 730 P.2d 942, 945 (1986) (per curiam) (“[I]n order to secure the
protection of the Fourteenth Amendment Due Process and Equal Protection
Clauses, the unwed father must grasp the opportunity to make a significant
custodial, personal, financial, and legal connection with the child.” (internal
quotation and citations omitted)); Jn the Matter of R.E., 645 So. 2d 205, 207
(La. 1994) (“When an unwed father demonstrates a full commitment to the
responsibilities of parenthood and an ability to participate beneficially in the
rearing of his child, his interest in personal contact with his child acquires
substantial protection under the state and federal due process clauses.”
(citations omitted)); Jn re Application of S.R.S., 225 Neb. 759, 408 N.W.2d
272 (1987) (per curiam) (finding unwed biological father had protected
interest in relationship with his son where he continuously provided for and
interacted with his son during son’s first two years of life and repeatedly
attempted to ascertain son’s whereabouts after unwed biological mother
unilaterally placed son for adoption); /n re Adoption of Zschach, 75 Ohio
St. 3d 648, 653, 665 N.E.2d 1070, 1075 (1996) (acknowledging that only
“if a biological father comes forward and accepts the full responsibilities of
parenthood [will he] be extended full protection of that relationship”’), cert.
denied sub nom, Johnson v. Zschach, ___ U.S.___, 117 S. Ct. 582, 136 L.
Ed. 2d 513 (1996); Jn the Matter of the Adoption of Baby Boy W., 831 P.2d
643, 646 (Okla. 1992) (noting that unwed biological father’s parental
interest will be preserved only where he has exercised statutory “‘parental
rights and duties toward the child,’” which include “contributing to the
support of the mother during the pregnancy and contributing to the support
of the child after its birth” (citation omitted)); Jn the Matter of the Adoption
of Baby Boy D, 742 P.2d 1059, 1067 (Okla. 1985) (“The Constitution
protects only parent-child relationships of biological parents who have
actually committed themselves to their children and have exercised
responsibility for rearing their children.”). Cf B.G. v. H.S., 509 N.E.2d
214, 217 (Ind. App. 1987) (requiring unwed biological father to file
paternity action ‘n order to protect his “opportunity to develop a responsible
relationship with his child”). But see, e.g., Quilloin v. Walcott, 434 U.S.
246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978) (determining that unwed
biological father did not have protected right to veto his eleven-year-old
son’s adoption by husband of child’s mother where father had never lived
with child, regularly supported child, exercised custody of child, or
Sh TA WEE w-
PILE «te seth deta
4ia
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
attempted to legitimate child until after adoption petition had been filed);
In the Matter of Adoption of Doe, 543 So. 2d 741, 749 (finding unwed
biological father had no right to establish relationship with his child when
he failed to “provide prebirth support to the unwed pregnant mother when
such support [was] needed and within his means”); Jn the Matter of the
Petition of Steve B.D., 112 Idaho 22, 730 P.2d 942 (concluding unwed
biological father did not have protected interest in relationship with his
child where he did not marry child’s mother before child’s birth; failed to
pay for birth expenses; never provided for child’s financial support; made
no attempt to interact with child; and delayed the initiation of legal
proceedings to establish his parental interest); Robert O. v. Russell K., 80
N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) (determining
biological father had lost his protected interest in his child by not promptly
demonstrating his commitment to parenthood; unwed biological father
failed to ascertain that biological mother was pregnant with his child,
although biological mother had not attempted to conceal fact of her
pregnancy from him, or to take any steps to assert his parental rights until
he learned of child’s existence some ten months after child’s adoption had
been finalized); /n re Adoption of Baby Boy Dearing, 98 Ohio App. 3d 197,
648 N.E.2d 57 (1994) (finding putative father’s interest in personal contact
with child to be entitled to no protection because he did not Participate in
rearing, care, or support of child); Jn the Matter of the Adoption of Baby
Boy D, 742 P.2d 1059, 1068 (refusing to protect unwed biological father’s
interest in parent-child relationship with his son where he provided no
financial support or care for child’s mother during her pregnancy; made no
attempt to ascertain when and where his child would be born; and generally
failed to assume any responsibilities of parenthood). But cf. In re Clausen,
442 Mich. 648, 684 n.43, 502 N.W.2d 649, 665 n.43 (1993) (per curiam)
(“[F Jrompt action by the father to assert parental rights, combined with the
father’s being prevented from developing a relationship with the child by
actions of the courts or the custodians, are factors that excuse or mitigate the
failure to establish such a relationship.” (citations omitted)).
42a
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
demunstrates 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[.]” Jn 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 nghts 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 nght 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.)
43a
(emphasis added) (citations omitted).?? See also
* Accord Adoption of Michael H., 10 Cal. 4th 1043, 1060, 43 Cal. Rptr. 2d
445, 455, 898 P.2d 891, 901 (1995) (holding that unwed biological father
has no constitutionally protected interest in his newborn child “unless he
shows that he promptly came forward and demonstrated as full a
commitment to his parental responsibilities as the biological mother
allowed and the circumstances permitted within a short time after he
learned or reasonably should have learned that the biological mother was
pregnant with his child’ (emphasis added)), cert. denied sub nom, Mark K.
v. John S., 516 U.S. 1176, 116 S. Ct. 1272, 134 L. Ed. 2d 219 (1996);
Robert O. v. Russell K., 80 N.Y.2d 254, 262, 590 N.Y.S.2d 37, 40, 604
N.E.2d 99, 102 (1992) (“[T]he unwed father of an infant placed for
adoption immediately at birth faces a unique dilemma should he desire to
establish his parental rights. Any opportunity he has to shoulder the
responsibility of parenthood may disappear before he has a chance to grasp
it, no matter how willing he is to do so. Accordingly . . . in some instances
the Constitution protects an unwed father’s opportunity to develop a
relationship with his infant son or daughter .... The right exists only for
the unwed father who manifests his willingness to assume full custody of
the child and does so promptly.” (citation omitted)); Jn the Matter of Raquel
Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 861, 559 N.E.2d 418,
424 (1990) (“[A]n unwed father who has been physically unable to have a
full custodial relationship with his newborn child is . . . entitled to the
maximum protection of his relationship, so long as he promptly avails
himself of all the possible mechanisms for forming a legal and emotional
bond with his child... . [H]owever, . . . in order to have the benefit of the
maximum protection of the re'ationship . . . the biological father not only
must assert his interest promptly . . . but also must manifest his ability and
willingness to assume custody of the child[.]” (emphasis added) (citations
omitted)).
Numerous state courts also have devised detailed examples of pre-birth
conduct by an unwed biological father indicative of his timely assumption
of parental responsibilities. See, e.g., Adoption of Kelsey S., 1 Cal. 4th 816,
849, 4 Cal. Rptr. 2d 615, _, 823 P.2d 1216, 1236-37 (“The father’s
conduct both before and after the child’s birth must be considered. Once
the father knows or reasonably should know of the pregnancy, he must
promptly attempt to assume his parental responsibilities as fully as the
mother will allow and his circumstances permit. In particular, the father
44a
Petition of Kirchner, 164 Jil. 2d 468, 487-88, 208 Ill. Dec. 268,
___, 649 N.E.2d 324, 333 (1995) (per curiam) (discussing “‘an
unwed father’s nghts 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
must demonstrate ‘a willingness hiraself to assume full custody of the child-
-not merely to block adoption by others.’ ... A court should also consider
the father’s public acknowledgment of paternity, payment of pregnancy and
birth expenses commensurate with his ability to do so, and prompt legal
action to seek custody of the child.” (quoting /n the Matter of Raquel Marie
X., 559 N.Y.S.2d 855, 865, 76 N.Y.2d 387, 408, 559 N.E.2d 418, 428
(1990)) (foomote omitted)); Adoption of Michael H., 10 Cal. 4th at 1056,
43 Cal. Rptr. 2d at 452, 898 P.2d at 898 (“To the extent the mother needs
such critical [prenatal] assistance and the unwed father is able to provide it,
the father, as one of the two individuals responsible for the pregnancy,
should be encouraged to do so early on and should not be granted
constitutional protection after birth if he has failed to timely fulfill this
responsibility.”); Jn the Matter of Adoption of Doe, 543 So. 2d 741, 746
(Fla. 1989) (“[AJn unwed father’s prebirth conduct in providing or failing
to provide support responsibilities and medical expenses for the natural
mother is relevant to the issue of abandonment.”’); Jn re Adoption of B.G.S.,
556 So. 2d 545, 551 (La. 1990) (citing examples of conduct of unwed
biological father that “amply demonstrated his dedication to his parental
responsibilities”: indicating, before his child’s birth, his opposition to
unwed biological mother’s intention to place child for adoption; formally
acknowledging paternity of his child; seeking notice of and actively
opposing adoption proceedings; attempting to have himself designated as
child’s father on original birth certificate; seeking custody through habeas
corpus proceedings; inserting his name as child’s father on re-issued birth
certificate; timely pursuing litigation; and legitimating child by marrying
child’s biological mother); /n the Matter of Raquel Marie X., 76 N.Y.2d
387, 408, 559 N.Y.S.2d 855, 865, 559 N.E.2d 418, 428 (conduct evidencing
unwed biological father’s commitment to parenthood “may include such
considerations as his public acknowledgment of paternity, payment of
pregnancy and birth expenses, steps taken to establish legal responsibility
for the child, and other factors evincing a commitment to the child”).
45a
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”).*° 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
“Implicit in our decision of this case is the necessarily limited scope of an
unwed biological father’s rights where a man attains fatherhood solely by
virtue of his uninvited sexual conduct. Thus, we adopt with approval the
artful clarification of these qualified rights by the Supreme Court of
California:
At the risk of stating the obvious, we caution that
our decision affords no protection, constitutional or
otherwise, to a male who impregnates a female as a
result of nonconsensual sexual intercourse. We find
nothing in the relevant high court decisions that
provides such a father a right to due process in
connection with the custody and adoption of his
biological child. Such a father also is not entitled to
equal protection, i.e., the same rights as the mother,
because the father and mother are clearly not similarly
situated. The sexual intercourse was voluntary only for
the father. Nor is such father entitled to be treated
similarly to those males who become fathers as a result
of consensual sexual intercourse.
Adoption of Kelsey S., 1 Cal. 4th 816, 849 n.14, 4 Cal. Rptr. 2d 615, 636
n.14, 823 P.2d 1216, 1237 n.14.
46a
Canada.?!
*'As we often have stated, an important consideration in determining
whether an unwed biological father will be permitted to maintain a
relationship with his child is whether the maintenance of the relationship
would be consistent with the child’s best interests. See, e.g., State ex rel.
Roy Allen S. v. Stone, 196 W. Va. 624, 638, 474 S.E.2d 554, 568 (1996)
(“Although a parent kas a protectable interest in a child, a parent’s rights are
not absolute: ‘[t]he welfare of the child is the paramount consideration to
which all of the factors, including common law preferential nghts of the
parents, must be deferred or subordinated.’” (quoting Johnson v. Johnson,
120 N.C. App. 1, 13, 461 S.E.2d 369, 376 (1995), rev’d per curiam on
other grounds, 343 N.C. 114, 468 S.E.2d 59 (1996)) (additional internal
quotations and additional citations omitted)); Syl. pt. 7, Matter of Brian D.,
194 W. Va. 623, 461 S.E.2d 129 (1995) (“Cases involving children must be
decided not just in the context of competing sets of adults’ nghts, but also
with a regard for the rights of the child(ren).”); Michael K.T. v. Tina L.T.,
182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of
the child is the polar star by which decisions must be made which affect
children.” (citation omitted)); Pierce v. Jeffries, 103 W. Va. 410, 413-14,
137 S.E. 651, 652 (1927) (“It is well settled in this state that the welfare of
the child is of paramount importance in determining who is entitled to its
custody, and that the welfare of the child is to be regarded more than the
technical rights of the parent.”).
We note additionally, in a tenuously related context, that the record
accompanying this appeal seems to indicate that no guardian ad litem was
appointed to protect the interests of Baby Boy Conaty with respect to his
pre-adoptive placement into Canada and ultimate adoption in that country.
While we do not glean any evidence to suggest that this omission
irreparably harmed the parties’ child or that the Canadian couple is not able
to provide a suitable home for the infant, we nevertheless are concerned
that, while the numerous adults involved in the adoption arguably were
contemplating the child’s interests, as well as their own, no one adult was
solely concerned with the welfare of the child who was at the heart of the
matter. Consistent with our desire to protect the interests of minor children
which are not otherwise safeguarded, we recommend that, in future cases
affecting the permanent custody of a child, a guardian ad litem be appointed
to ensure that any proposed custodial arrangement does in fact benefit and
promote the child’s safety and well-being. See Carter v. Carter, 196
ee ee
47a
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.** John contends that but
W. Va. 239, 251 n.23, 470 S.E.2d 193, 205 n.23 (1996) (“We suggest that
when a case involves the unrepresented interests of a child, . . . the circuit
court appoint a guardian ad litem to assure protection of the children’s
interest.” (citations omitted)); State Dep't of Health & Human Resources,
Child Advocate Office ex rel. Cline v. Pentasuglia, 193 W. Va. 621, 625,
457 S.E.2d 644, 648 (1995) (‘Although historically courts have addressed
issues affecting children primarily in the context of competing adults’
rights, the present trend in courts throughout the country is to give greater
recognition to the rights of children, including their right to independent
representation in proceedings affecting substantial rights.’” (emphasis in
original) (quoting Cleo A.E. v. Rickie Gene E., 190 W. Va. 543, 546, 438
S.E.2d 886, 889 (1993))).
*Our discussion and decision of the fraud issue focuses upon the single
inquiry of whether the defendants, individually or collectively, had a duty
to disclose to John the information he requested, and they concealed from
him, pertaining to the whereabouts of Baby Boy Conaty following his birth.
We do not reach the issue of whether the defendants, or defendant Anne
specifically, had a duty to notify Jebn of either the circumstances
surrounding her placement of their child for adoption or the subsequent
Canadian adoption proceedings. Neither the circuit court’s instructions nor
the parties’ briefs before this Court argue that the law applicable to the
child’s adoptive placement required Anne to provide such notice to John.
To the contrary, our preliminary inquiry into this area suggests that the law
governing this 1991 adoptive placement would not have required such
notice to have been given. See Marr v. Superior Court, 114 Cal. App. 2d
527, 250 P.2d 739 (1952) (suggesting that consent to adoption must comply
with laws of jurisdiction in which adoption petition is filed); Estate of
Johnson v. Johnson, 100 Cal. App. 2d 73, 223 P.2d 105 (1950) (indicating
that validity of adoption is determined by laws of state or foreign country
in which adoption is finalized); Alexandra Maravel, /ntercountry Adoption
and the Flight From Unwed Fathers’ Rights: Whose Right is it Anyway?,
48 S.C. L. Rev. 497, 522-23 & n.159 (1997) (describing notice
requirements in Alberta, Canada, as requiring “notice to a biological father
[only] if there [is] no permanent guardianship agreement or order,” but
48a
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 rights, we must also consider
the importance of John’s parental rights.** On the one hand,
instructing that “[t]he court may, however, dispense with any required
notice except notice to the director of child and family services”; also
revealing that “only the parties petitioning for adoption (and the child if at
least twelve years of age) are entitled to be heard at the [final adoption]
hearing before the court” (footnotes omitted)). See also Robert O. v.
Russell K., 173 A.D.2d 30, _, 578 N.Y.S.2d 594, 597 (1992) (“It is well
settled that a ‘natural mother ha[s] no obligation to . . . volunteer any
information with respect to [the father.]’” (emphasis added) (quoting Matter
of Jessica XX., 54 N.Y.2d 417, 427, 446 N.Y.S.2d 20, 24, 430 N.E.2d 896,
900 (1981), aff'd sub nom, Lehr v. Robertson, 463 U.S. 248, 103 S. Ct.
2985, 77 L. Ed. 2d 614 (1983)), aff'd, 80 N.Y.2d 254, 590 N.Y.S.2d 37,
604 N.E.2d 99 (1992). Cf Caban v. Mohammed, 441 U.S. 380, 99 S. Ct.
1760, 60 L. Ed. 2d 297 (1979) (implying that biological fathers are entitled
to notice of pending adoption proceedings by holding unconstitutional New
York statute that permitted biological mothers, but not biological fathers,
to block adoption by withholding consent); Stanley v. Illinois, 405 U.S. 645,
92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (holding that unwed biological
father is entitled to hearing and, impliedly, notice of any hearing prior to
effecting change of child’s custody); Adoption of Michael D., 209
Cal. App. 3d 122, 130, 256 Cal. Rptr. 884, 889 (1989) (noting that
California statutory law requires that biological father be notified of
pending adoption petition and that he be afforded “the right to be heard with
respect to the proposed adoption” (citation omitted)), superseded by statute
as noted in In re Mario C., 226 Cal. App. 3d 599, 276 Cal. Rptr. 548
(1990); Cheryl H. v. Superior Court, 41 Cal. App. 3d 273, 280, 115
Cal. Rptr. 849, 853 (1974) (recognizing, in adoption context, that unwed
biological father “is entitled to notice of any proceeding involving change
in legal custody” of child).
**By our recognition of John’s parental rights we in no way intend to
unnecessarily trammel Anne’s decisional rights; instead, we adhere to our
prior practice and afford those personal rights of decision the utmost
ios ec RIE a
4%a
“i]t is a principle of the common law that wherever the law
gives aright... , it also gives a remedy.” 1 Am. Jur. 2d
Actions § 41, at 749-50 (1994) (citing Wennerholm vy. 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 § 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
respect. See Farley v. Sartin, 195 W. Va. 671, 683-84, 466 S.E.2d 522,
534-35 (1995) (emphasizing that holding, which permitted wrongful death
action to be maintained for tortious death of nonviable unborn child,
“neither affects nor interferes with the constitutional protection afforded a
woman who chooses to have an abortion, as was set forth originally in Roe
v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 ( 1973)”; announcing
further that “a wrongful death action will not lie against a woman who
chooses to exercise her constitutional right to have an abortion. By
definition, if a woman has a constitutional right to decide whether to carry
an unborn child to term or abort it, then the act of aborting is not tortious.
In such cases, the reasons for invoking the wrongful death statute do not
apply; there is no tortious conduct to deter.” (footnotes omitted)). We wish
only to emphasize that once Baby Boy Conaty was born, he had two
biological parents who had nearly co-equal rights to establish a parent-child
relationship with him.
50a
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,
“«*It|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.
Sla
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.”” (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 § 550
(1976). Explaining the types of wrongful behavior
contemplated by this section, Comment b to § 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 vy.
Schreppler, 426 A.2d 856, 860 (Del. Super. 1981) (recognizing
52a
cause of action for fraudulent concealment similar to that
provided by § 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. Super. Ct. 1995).*4
**Seizing upon this language, other jurisdictions have also recognized a
cause of action for fraudulent concealment pursuant to § 550 of the
Restatement (Second) of Torts. See, e.g., Fox v. Kane-Miller Corp., 542
F.2d 915, 918-19 (4th Cir. 1976) (recognizing cause of action “based upon
concealment which is ‘intentional[ly] and effective[ly ]the hiding of a
material fact with the attained object of creating or continuing a false
impression as to that fact’” (quoting Fegeas v. Sherrill, 218 Md. 472, 476-
77, 147 A.2d 223, 225 (1958))); Roadmaster Industries, Inc. v. Columbia
Mfg. Co., Inc., 893 F. Supp. 1162, 1179 (D. Mass. 1995) (“[I}n order to
establish fraudulent concealment, a plaintiff must prove that the defendant
took affirmative steps to conceal defects or to prevent the plaintiff from
acquiring knowledge of the defects... . In addition to establishing
intentional concealment of [material] information . . ., it must be established
that the defendant owed to the plaintiff a fiduciary duty or other similar
relation of trust and confidence that required disclosure.” (citations
omitted)); Stevens v. Superior Court, 180 Cal. App. 3d 605, 608-09, 225
Cal. Rptr. 624, 626 (1986) (noting that “intentional concealment of a
material fact is an alternative form of fraud and deceit equivalent to direct
affirmative misrepresentation” (citations omitted)); Davidson v. Rogers, 431
So. 2d 483, 485 (Miss. 1983) (“In order to recover damages for fraudulent
concealment, (the plaintiff] must demonstrate [the defendant] took some
action, affirmative in nature, which was designed or intended to prevent and
which did prevent, the discovery of the facts giving rise to the fraud claim.”
(footnote omitted)); Roberts v. Estate of Barbagallo, 366 Pa. Super. 559,
568-69, 531 A.2d 1125, 1130 (1987) (stating that liability for fraud under
§ 550 “may arise by . . . an intentional concealment of true facts which is
calculated to deceive the other party” (citation omitted)); Paul v. Kelley, 42
salle Mal aicad eal ain cs tt vig os
53a
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 § 1 (1967)). In
Dixon v. 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 15SA C.J.S. Conspiracy § 1(1) and 16 Am. Jur. 2d
Conspiracy § 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.
Or. App. 61, 65-66, 599 P.2d 1236, 1238-39 (1979) (explaining difference
between “simple nondisclosure,” which requires a duty to speak, and
“active concealment,” which has no such duty requirement; further
indicating that “active concealment” contemplates “*fajny words or acts
which create a false impression covering up the truth, . . . or which remove
an Opportunity that might otherwise have led to the discovery of a material
fact . . ., or even a false denial of knowledge by one in possession of the
facts’” (quoting William L. Prosser, Handbook of the Law of Torts § 106,
at 695 (4th ed. 1971))).
54a
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 (1902) (“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 § 301, at 397 (1968) (stating that
“everyone who engages in a fraudulent scheme forfeits all nght
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 § 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
55a
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. De Leau, 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. Jd.
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 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
56a
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 j
not have a redressable claim for wrongful interference with his
visitation nghts 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. Jd.
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).
Peenee ts
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 Jn 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 _, 535 N.Y.S.2d at 680. Nowhere in the
opinion, though, did the court indicate whether the father would
¢
4
i
57a
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, _—, 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); Jn 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 precedent--standing alone--is an
58a
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 nights, by
“grasping the opportunity” to demonstrate his commitment to
assuming parental responsibility 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.*°
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** inquires of such person regarding his/her
child’s birth or physical location, and/or where and in whose
**We emphasize that an unwed biological father’s right to establish and
maintain a parental relationship with his child does not foreclose an unwed
biological mother’s right to terminate her pregnancy. See Doe v. Smith, 486
U.S. 1308, 108 S. Ct. 2136, 100 L. Ed. 2d 909 (1988) (refusing to permit
unwed biological father to enjoin unwed biological mother from obtaining
an abortion).
—
**By the term “parent” we mean both biological parents and those persons
who have attained the status of parents by virtue of adoption. See W. Va.
Code § 48-4-11 (1984) (Repl. Vol. 1996).
59a
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.*’
“In rendering this decision, we wish to comment as to its intended effect
and scope. First, we emphatically reiterate that our holding is in no way
intended to abrogate a biological mother’s freedom to select from various
options available to her during the course of her pregnancy. Indeed, our
fervent hope is that by carefully and narrowly defining the boundaries for
the imposition of liability in a case such as this, these freedoms will be more
scrupulously preserved and protected. Second, we emphasize that we do
not impose upon a biological mother any affirmative duty to keep her
child’s biological father informed of the progress of her pregnancy or to
relay to him any other information pertaining to a proposed adoption of the
child other than that notice required to be given to the child’s biological
father pursuant to the applicable statutory or case law. Only when the
mother, or any other person, affirmatively, intentionally, and willfully
conceals information in response to a father’s inquiries can she, or any other
person, be subjected to liability. Last, we acknowledge that the scope of
this decision necessarily will be limited by the implementation of revised
adoption standards which afford greater consideration of a biological
father’s interest in establishing a relationship with his child. See W. Va.
Code §§ 48-4-8, 48-4-8b (1997) (Supp. 1997) (expanding class of persons
required to be given notice of pending adoption proceedings). See also Cal.
Family Code §§ 7662, 7664, 7666 (1992) (Main Vol. 1994) (requiring
notice of pending adoption proceedings be given to “natural father”) and
60a
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. 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 partv
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
7660 (1992) (Main Vol. 1994) (requiring notice of pending adoption
proceedings be given to “presumed father”); Adoption of Kelsey S., 1 Cal.
4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992) (holding
unconstitutional statutory scheme whereby unwed biological mother could
prevent unwed biological father from attaining status of presumed father,
whose consent is required for adoption of nonmarital child).
ors aA
gi rent: x
6la
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 § 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
62a
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.**
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 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,*? the defendants entreat this Court to
follow the decisions of the minority of jurisdictions, which
“Having determined the sufficiency of John’s claim for fraud, we need not
further review this matter. The issue of whether the record evidence
adequately satisfied the elements of a cause of action for fraud was properly
within the province of the jury. 8B Michie’s Jur. Fraud and Deceit § 67,
at 433 (1994) (“Generally, fraud is a question of fact to be determined by
the jury from all the circumstances of the case.” (footnote omitted)).
Furthermore, the defendants do not appear to challenge the sufficiency of
such evidence in their appeal. See Syl. pt. 3, Higginbotham v. City of
Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974) (“Assignments of error
that are not argued in the appellant’s brief may be deemed by this Court to
be waived.”), overruled on other grounds by O'Neil v. City of Parkersburg,
160 W. Va. 694, 237 S.E.2d 504 (1977).
**See infra for the text of Restatement (Second) of Torts § 700 (1976).
| RC TIROAS BATTAL Neos mm
63a
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 II.
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 submi. 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 ieave, 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.”
“The defendants alternatively suggest that John’s claim is based not upon
Section 700 but upon Section 699 of the Second Restatement of Torts. See
64a
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 nghts. 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 nghts enjoyed by Anne, “[o]nce the baby is
born[, both} the baby and the father have rights.”
Restatement (Second) of Torts § 699 (1976) (“One who, without more,
alienates from its parent the affections of a child, whether a minor or of full
age, is not liable to the child’s parent.”). As the claim enunciated in Section
699 is nothing more than a claim for alienation of a child’s affections, for
which no relief is available, and as this cause of action has been abolished
in this State, the defendants contend that the circuit court erroneously
permitted John to maintain his claim. Citing W. Va. Code § 56-3-2a (1969)
(Repl. Vol. 1997); Syl. pt. 2, Weaver v. Union Carbide Corp., 180 W. Va.
556, 378 S.E.2d 105 (1989); Syl. pts. 1 and 4, Wallace v. Wallace, 155
W. Va. 569, 184 S.E.2d 327 (1971), overruled on other grounds by Belcher
v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990).
65a
Additionally, while John concedes that the facts of this
case do not fit neatly into the definition of “tortious
interference” contained 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
66a
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
tS Bode ee reat
*'See, e.g., DiRuggiero v. Rodgers, 743 F.2d 1009 (3d Cir. 1984)
(construing law of New Jersey as allowing cause of action for tortious
interference with parents’ custodial rights); Bennett v. Bennett, 682 F.2d
1039, 221 U.S. App. Dec. 90 (D.C. Cir. 1982) (recognizing applicability of
tort to relatives of minor child); Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.
1982) (surmising Wisconsin law would permit cause of action for tortious
interference with custodial relationship); Anonymous v. Anonymous, 672 So.
2d 787 (Ala. 1995) (listing elements of tortious interference with custody
cause of action); Matter of Mendel, 897 P.2d 68 (Alaska 1995) (impliedly
allowing maintenance of claim for tortious custodial interference); Rosefield
v. Rosefield, 221 Cal. App. 2d 431, 34 Cal. Rptr. 479 (1963) (explaining
rationale for adopting tort); D & D Fuller CATV Constr., Inc. v. Pace, 780
P.2d 520 (Colo. 1989) (en banc) (basing recognition of tort on pre-existing
state crime of custodial interference); Mathews v. Murray, 101 Ga. App.
216, 113 S.E.2d 232 (1960) (permitting plaintiff to maintain claim for
damages arising from defendant’s interference with plaintiff's custody of
his minor child); Shields v. Martin, 109 Idaho 132, 706 P.2d 21 (1985)
(permitting recovery of damages for tortious interference with custodial
relationship), superseded by statute as noted in Doe v. Cutter Biological, a
Div. of Miles, Inc., 852 F. Supp. 909 (D. Idaho 1994); Montgomery v.
Crum, 199 Ind. 660, 161 N.E. 251 (1928) (permitting mother to maintain
cause of action for damages resulting from defendant’s tortious interference
with her parental and custodial rights); Wood v. Wood, 338 N.W.2d 123
(lowa 1983) (en banc) (determining tort would provide effective remedy
and deterrent to problem of child snatching); Washburn v. Abram, 122 Ky.
53, 28 Ky. L. Rptr. 985, 90 S.W. 997 (1906) (allowing pareni to recover
damages occasioned by unlawful abduction or detention of his/her minor
child); Spencer v. Terebelo, 373 So. 2d 200 (La. App. 1979) (recognizing
cause of action in tort for interference with custodial relationship); Hare v.
Dean, 90 Me. 308, 38 A. 227 (1897) (upholding cause of action for
interference with payent’s custody of his/her minor child); Michaels v.
Nemethvargo, 82 Md. App. 294, 571 A.2d 850 (1990) (recognizing cause
of action in tort for interference with parental relationship between parent
se phd Sia
67a
and his/her minor child; limiting recovery to loss of child’s services and
expenses necessary to ensure child’s welfare and precluding recovery of
damages for society and companionship); Murphy v. I.S.K. Con. of New
England, Inc., 409 Mass. 842, 571 N.E.2d 340 (1991) (recognizing cause
of action for tortious interference with parent-child relationship grounded
in common law and Restatement (Second) of Torts § 700 (1976)); Brown
v. Brown, 338 Mich. 492, 61 N.W.2d 656 (1953) (adopting language of
Restatement of Torts § 700 (1938)); Kramer v. Leineweber, 642 S.W.2d
364 (Mo. App. 1982) (noting Missouri’s long-standing recognition of tort
action for parental or custodial interference); Tavlinsky v. Ringling Bros.
Circus Co., 113 Neb. 632, 204 N.W. 388 (1925) (acknowledging that
parents generally have cause of action for wrongful deprivation of custody
of their minor child); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983)
(extending liability for tort to those conspiring to commit tort); Casivant v.
Greene County Community Action Agency, Inc., 652 N.Y.S.2d 115, 234
A.D.2d 818 (1996) (finding tort to be narrowly drawn), aff'd, 90 N.Y.2d
969, 665 N.Y.S.2d 952, 688 N.E.2d 1034 (1997); LaGrenade v. Gordon.
46 N.C. App. 329, 264 S.E.2d 757 (1980) (finding mother had right to
maintain claim for tortiov~ interference with parental or custodial
relationship where father haa, ~’ contract, surrendered to mother his
common law right to custody of parties’ minor child), appeal dismissed,
review denied, 300 N.C. 557, 270 S.E.2d 109 (1980); Clark v. Bayer, 32
Ohio St. 299, 30 Am. Rep. 593 (1877) (permitting lawful custodian of
minor child to maintain claim for damages resulting from another’s
wrongful interference with such custodial relationship); McBride v.
Magnuson, 282 Or. 433, 578 P.2d 1259 (1978) (en banc) (following other
jurisdictions recognizing tort); Bedard v. Notre Dame Hosp., 89 R.I. 195,
151 A.2d 690 (1959) (holding parent may bring cause of action for injury
to his/her parental relationship with his/her child); Hershey v. Hershey, 467
N.W.2d 484 (S.D. 1991) (recognizing cause of action in tort for interference
with parental relationship, but specifically phrasing claim as one for
alienation of affections); Silcort v. Oglesby, 721 S.W.2d 290 (Tex. 1986)
(adopting cause of action by parent for tortious interference with custodial
relationship and applying Restatement (Second) of Torts § 700 (1976));
Magnuson v. O’Dea, 75 Wash. 574, 135 P. 640 (1913) (allowing recovery
of damages arising from tortious interference with custodial relationship).
But see, e.g., McDougald v. Jenson, 596 F. Supp. 680 (N.D. Fla. 1984)
(refusing to recognize, under Florida law, cause of action for tortious
interference with parental or custodial relationship), aff'd, 786 F.2d 1465
68a
In order to determine whether this Court should follow the lead
initiated by our sister jurisdictions, it is necessary for us 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
(11th Cir. 1986); Simmons v. Simmons, 41 F. Supp. 545 (E.D.S.C. 1941)
(interpreting South Carolina law as prohibiting cause of action by one
spouse against the other spouse for interference with custodial relationship
between complaining spouse and parties’ child based upon sanctity and
promotion of “domestic felicity” and child’s best interests); Whitehorse v.
Critchfield, 144 Ill. App. 3d 192, 98 Ill. Dec. 621, 494 N.E.2d 743 (1986)
(declining to recognize cause of action for tortious interference with
parent’s custody and determining Legislature to be more appropnate body
to umplement civil sanctions for such interference); Larson v. Dunn, 460
N.W.2d 39 (Minn. 1990) (explicitly rejecting father’s tort claim for
intentional interference with his custodial rights; finding proposed cause of
action to be contrary to best interests of children at issue in such disputes
resulting from dissolution of marriage proceedings); Zaharias v. Gammill,
844 P.2d 137 (Okla. 1992) (rejecting tort because increased litigation would
be contrary to best interests of children involved). See generally Marshak
v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993) (agreeing with mal
court’s ruling that recognition of cause of action for custodial interference
would likely be consistent with Connecticut law but finding facts
insufficient to maintain such a claim in this particular case); Bartanus v. Lis,
332 Pa. Super. 48, 480 A.2d 1178 (1984) (not expressly adopting or
rejecting tort of interference with custody by “harboring” minor child
without his/her parent’s consent; determining instead that facts alleged were
insufficient to state such a claim because plaintiff had not demonstrated that
he had lawful custody of his son at time of alleged interference); White v.
Blackburn, 787 P.2d 1315 (Utah App. 1990) (neither specifically adopting
nor definitively rejecting cause of action for tortious interference with
parental or custodial relationship; determining facts did not establish claim
for such interference in this case).
69a
with parental or custodial'*”) relationship”.*? 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 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 § 700
(1976).¥
“We phrase the relationship protected by this cause of action in the
alternative to encompass both “parental relationships” and “custodial
relationships”. In this manner, we view a “parental relationship” as the
relationship fostered, or commenced, by an unwed biological father as a
prerequisite to asserting his broader parental and custodial rights. By
“custodial reiationship” we mean the relationship between parent and child
enjoyed by a parent who has physical or legal custody of his/her child.
“Our discussion of tortious interference will be limited to tortious
interference with a parent’s parental or custodial relationship with his/her
child as distinguished from tortious interference with a parent’s viSitation
rights or tortious interference which results in a parent’s loss of his/her
child’s society and companionship, i.e., parental consortium. For further
discussion of the two types of tortious interference not addressed by our
decision, see Note, Tort Recovery for Intentional Interference with
Visitation Rights: A Necessary Alternative, 32 U. Louisville J. Fam. L. 657
(1993-94) (discussing tortious interference with visitation), and Jean C.
Love, Tortious Interference with the Parent-Child Relationship: Loss of an
Injured Person's Society and Companionship, 51 Ind. L.J. 590 (1975-76)
(discussing tortious interference with child’s society and companionship)
and Note, Torts--Parent’'s Recovery for Loss of Society and Companionship
of Child, 80 W. Va. L. Rev. 340 (1977-78) (same).
“The language of the Restatement is clear, and we emphasize further, that
the claim asserted by John and contemplated by this Court is one for
tortious interference and not for alienation of affections, as the defendants
suggest. These two causes may be distinguished as follows. “Tortious
interference with parental or custodial relationship” intimates that the
complaining parent has been deprived of his/her parental or custodial nights;
70a
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 § 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 § 700 cmt. b.
in other words, but for the tortious interference, the complaining parent
would be able to exercise some measure of control over his/her child’s care,
rearing, safety, well-being, etc. By contrast, “alienation of affections”
connotes only that the parent is not able to enjoy the company of his/her
child; this cause of action does not suggest that the offending party has
removed parental or custodial authority from the complaining parent. We
further recognize that “alienation of affections” is no longer a valid cause
of action in this State. See W. Va. Code § 56-3-2a (1969) (Repl. Vol. 1997)
(“Notwithstanding any other provision of law to the contrary, no civil action
shall lie or be maintained in this State . . . for alienation of affections, unless
such civil action was instituted prior to the effective date of this section
{March 6, 1969].”). See also Restatement (Second) Torts § 699 cmt. a
(1976) (“For the mere alienation of a child’s affections no action can be
maintained by the parent.”).
7la
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 § 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:
72a
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 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 nghts were thereby invaded.”
Id., 672 So. 2d at 790 (quoting 67A C.J.S. Parent & Child §
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 § 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
73a
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,*° 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 ri ght,
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
“The Court noted that the child’s father had not been served with process
and therefore was not a party to the appeal. Rosefield v. Rosefield, 221 Cal.
App. 2d 431, 432, 34 Cal. Rptr. 479, 480 (1963)
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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 night 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.
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
eienin
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contexts. For example, in Syllabus point 2 of Barone vy.
Barone, 170 W. Va. 407, 294 S.E.2d 260 (1982), we held that
“[aJn 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, __ W. Va. or
__»___S.E.2d__,_, slip op. at 29-30 (No. 24434 May 21,
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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 bnef 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 § 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
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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 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 nights 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 § 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 [§ 61-2-14, § 61-2-14a, § 61-2-14c, or §
61-2-14d] of this article, either as accessory before or
an accessory after the fact, such person so aiding and
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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 1s provided
in said sections for the person who committed the
offense.
W. Va. Code § 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 cmminalized 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. § 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
§ 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. § 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. § 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
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Ill. Rev. Stat. ch. 38, paras. 10-5, 10-6 (1985))); Larson y.
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. § 609.26 (1986),
for abduction of children from custodial parent); Zaharias y.
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. § 1119(1991))). Cf Rosefield v. Rosefield, 221
Cal. App. 2d 431, 433, 34 Cal. Rptr. 479, 481 (1963) (noting
that Cal. Civil Code § 49 (1939) “forbids the abduction of a
child from a parent” and acknowledging that third persons
violating this section and/or committing tortious interference
ca
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