Opinion
No. 24431.
Submitted September 23, 1998.
Filed December 9, 1998.
Appeal from the Circuit Court of Webster County, Honorable Danny O. Cline, Judge, Civil Action No. 93-D-35.
Douglas A. Cornelius, Clarksburg, West Virginia, Attorney for Appellant.
William W. Talbott, Webster Springs, West Virginia, Attorney for Appellee.
The appellant in this proceeding, Patricia L. Lake, petitioned the Circuit Court of Webster County to modify a prior child custody order and to award her the exclusive custody of her five-year-old son. The circuit court denied that petition. In the present proceeding the appellant claims that that denial was based on the child's stated preference to remain with his father, and she also asserts that the child was incompetent to state such preference. She claims that, in view of the child's incompetence to state a preference, the circuit court erred in relying on the statement of preference in ruling on her petition for modification.
BACKGROUND FACTS
In 1995, the appellant and the appellee, while obtaining a divorce from each other, entered into a "Joint Parenting Agreement" relating to the care and custody of their infant son. That agreement was accepted by the Circuit Court of Webster County, and on January 19, 1995, the court entered an "Agreed Order" which, in effect, adopted the agreement.
In the Agreed Order, the appellant and the appellee were awarded the joint and equal legal and physical care, custody, and control of their son, with the provision that the child stay with each of the parties for alternative three week periods until he entered pre-school in 1996. It was further provided that as 1996 approached, if the child was able to articulate a clear preference as to whether he desired to attend pre-school near the residence of either party, the parties would acquiesce to his wishes and would reform visitation so that they could share time equally with the child when they were not working and when the child was not in school. Additionally, the order appointed a psychologist to monitor the well-being of the child and to assist the Court in determining whether the child was emotionally and intellectually able to voice a preference at the time of the pre-school decision. Finally, the Agreed Order stated:
[T]he Court may interview the child outside the presence of the parties and counsel in accordance with Family Law Master Rule 16 and that the Court may direct that the child reside during the school year primarily with the parent selected by the child, but if the child refuses or fails to state a preference, the Court will decide the issue based upon the best interests of the child.
Prior to, and at the time of the divorce, both parties resided in Webster County, but on July 28, 1995, the appellant married Timothy R. Stout and moved to Bridgeport, Harrison County.
After moving to Harrison County, the appellant, on May 23, 1996, petitioned the Circuit Court of Webster County to modify the child custody arrangement and to award her custody of the child. In the petition she asserted that the court-appointed psychologist had concluded that the child was too young to state a preference as to where he would like to attend pre-school. She also stated that she and her new husband had purchased a new home and:
[S]he and her husband can and will provide said child with a proper and beneficial home and living environment which will further the best interests of said child; and . . . she does not and will not be away from said child for work purposes while said child is in her home, while the father has been and will continue to be away from said child for work purposes and leaves said child in the care of his mother during his absence.
The appellee, in a counter-petition, prayed that the court enforce the custody agreement that the parties had entered into and conduct an interview with the five-year-old child to determine if he had a preference as to whether he desired to attend pre-school in 1996 near the residence of the father or the residence of the mother.
While the matter was pending, the psychologist appointed to monitor the progress of the child, informed the court on May 20, 1996, that the child had not stated a preference as to where he wanted to attend school. The psychologist also stated that the child did not want to make a choice, that he was not able to make an objective or competent choice, and that he could be easily swayed by whichever parent with whom he had just been. The psychologist further said that it would be unwise to ask the child to make a choice.
Subsequently, the trial judge, after hearing the representations and arguments of the parties, announced that he would attempt to interview the child on two occasions, once, on that day, June 21, 1996, after the child had been in the appellant's physical custody for a week, and once on July 19, 1996, after the child had been in the appellee's physical custody for a week. On the first occasion, the Court attempted to interview the child, but the child refused to respond. On July 19, 1996, the child indicated that he wanted to live with his "dad."
After conducting an evidentiary hearing on August 28, 1996, the court ruled that the appellee should have physical custody of the child and that the child should attend pre-school near the appellee's home. In reaching this conclusion, the court stated:
The Court is of the opinion and conclusion in this instance that the child should for the current school year be placed in the custody of the father.
I say this because the child has been reared, he's been brought up and has spent more time at the home of the father. That's been the home that he's lived in all of his life except for the past — I guess for the past several months, but he's lived all his life basically in that house; there's been a joint custody arrangement.
That has to come to an end. It has to be concluded, because he has to start to school. There's not any showing it would be detrimental for him to remain there. He certainly would have attachments to the place where he has lived, and the Court is of the opinion and finds that he's spent more of his life where he started off than he has spent at the mother's present residence.
The fact that the mother comes to the Court and says that I can stop working and will do so does not warrant, in the opinion of the Court, removing the child.
* * *
The Court is of the opinion that there's no showing for a change of custody. The Court finds that the primary caretaker rule would not apply in this instance because the child has been subject to a split custody at least since June of '94.
Since that time, the Court is of the opinion, that the child has probably spent more time with the plaintiff father than the defendant mother.
The Court is of the opinion, considering the fact that the child has lived the greater portion of his life and is more familiar with and is living in the house of the plaintiff father.
The Court will award custody to the plaintiff for this current school year.
Subsequently, the court entered an order implementing this decision.
As previously indicated, on appeal, the appellant claims that the court erred in awarding the appellee custody of the parties' child upon the basis of the interviews with the child when the court-appointed psychologist had indicated that the child was not competent to make a choice and when the court did not conduct the interview in a proper manner. The appellant also claims that the court erred in not deciding the custody question based upon the child's best interests and that the court erred in placing the "burden of proof upon her to show why the agreed order should be modified when the agreed order stated that the custody order should be based on the child's best interest if the child was found to be incompetent to express a custodial preference."
STANDARD OF REVIEW
This Court recognized in Syllabus Point 1 of Judith R. v. Hey, 185 W. Va. 117, 405 S.E.2d 447 (1990) that "`To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.' Syl. Pt. 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669(1977)." See also, Stevens v. Stevens, 186 W. Va. 259, 412 S.E.2d 257 (1991).
DISCUSSION
Contrary to the appellant's assertions, the record in the present case shows that the circuit judge did not render his decision on the basis of the child's stated preference to live with one parent. In fact, the judge concluded that the child's statement of preference should not control, and at the conclusion of the hearing in the case, the judge specifically stated:
[A] child of five years would not be able to make an informed and intelligent decision as to going to school and the consequences of attending one school versus another school. A child doesn't have the capacity to do that. The Court recognizes that, and I think that the psychologist recognizes that, and I'm sure that the parties may recognize that. I'm sure these attorneys recognize that.
The record also indicates that instead of relying upon the child's expression of preference, the court found that the child had been reared in the Webster County area and had basically lived there most of his life and that after the parties' divorce, the appellant had moved to the Bridgeport area. The court concluded that if the appellant was granted custody, the child would be uprooted from the area in which he had principally lived and would be required to live in the Bridgeport area. The court said:
In this instance, the child has been basically reared in the home area, or been basically reared where he lived as a child with both of the parties.
The Court is of the opinion from this evidence that he has had more contact with that vicinity than he has had with the Bridgeport area.
The court also stated:
My impression is that the change of circumstances that will warrant a change in custody are changes that are material that promote the best interest of the child is what I thought the rule was.
In this instance, there has certainly been a change in circumstances in regard to the mother.
I cannot say from the evidence that the best interest of this child would be materially promoted by placing him at Bridgeport.
This Court believes that the circuit judge properly concluded that a five-year-old child, such as the child in this case, cannot meaningfully express a preference as to which parent he wishes to reside and that the circuit court properly based its ruling on what was in the best interests of the child. Before a statement of preference by a child may properly serve as the basis for establishing or modifying custody, the child must be of sufficient age and maturity. Rose v. Rose, 176 W. Va. 18, 340 S.E.2d 176 (1985); and Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981). This Court does not believe that a five-year-old child, such as the one in this case, would ever have sufficient maturity to grasp the significance of a statement of preference. Syllabus Point 2 of Cloud v. Cloud, supra, states the fundamental duty of a court in considering the question of whether child custody should be modified. That duty is to consider whether a change in custody will materially promote the welfare of the child. Parents may not modify that duty by entering into any sort of agreement in abrogation of that duty, nor may a trial judge avoid that duty by relying upon an agreement such as the one involved in this case. Such agreements place undue pressure upon the infants involved and should be looked upon with disfavor. What is in the best interest of the child should always be the primary inquiry.
Since the record shows that the trial judge did not base his ruling on the expression of preference by the parties' child, this Court cannot conclude that the appellant's assertion that the Court erred in basing the decision on such preference has merit. Likewise, the Court concludes that the claim that the circuit court did not conduct the interviews in a proper manner does not support a reversal of the circuit court's decision.
It does appear that the circuit court considered whether there had been a change in circumstances of the parties and whether a change in custody would materially promote the welfare of the child and the court articulated valid reasons for directing that the child attend pre-school in Webster County. This shows that the trial court considered the factors set forth in Cloud v. Cloud, supra, in arriving at the decision in this case. Because of this, this Court believes that the judgment of the Circuit Court of Webster County should be affirmed.
The judgment of the Circuit Court of Webster County is, therefore, affirmed.
Affirmed.
While I concur with some of the principles set forth in the majority opinion, I vehemently dissent from the majority's holding that the Free Speech Clause of the state constitution is not applicable to private sector employers. This all-encompassing holding is wrong from a legal perspective and wrong from a policy perspective. I do not believe it is the law of the United States and I will not subscribe to it being the law of West Virginia.
Furthermore, I disagree with the majority's conclusion that truthful communications are always a defense to tortious interference with a business relationship, even if such communications are malicious and intended to do harm. Both of these issues should have been governed by a much more cautious analysis of the law in the context of this action and the two new points of law should have been far more narrowly drawn.
I. FREE SPEECH
The specific issue before this Court which gave rise to the free speech question was whether "public policy emanating from the Free Speech Clause of the state constitution applies to speech by private sector employees who criticize or disagree with policies or other lawful actions taken by their private sector employers." The majority, however, abandons this concrete and limited question to cut across the constitution with a sharp and wide swath. In moving their analysis from a very concrete to an all-encompassing framework, they elevate statutes over our state constitution, they misinterpret the law from other jurisdictions, give no deference to precedent, and, as the authorities cited below indicate, they depart from a lengthy body of jurisprudential law holding that West Virginia's constitution is in many respects even more protective of our citizens' rights than the United States Constitution.
First, an examination of the case law upon which the majority relies reflects a gross misapprehension on the part of the majority as to what theses cases say:
The cases cited by the majority expressly connect the absence of a cause of action for the employee's exercise of free speech to speech that has a legitimate "employment-related nexus." Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985). In Johnson v. Mayo Yarns, 484 S.E.2d 840 (N.C.Ct.App. 1997), a case upon which the majority cites as supportive of its holding, the court determined that an employee's refusal to obey his private employer's directive to remove a Confederate flag decal from his workplace toolbox was not constitutionally protected speech or expression and therefore, no public policy violation occurred which would permit an actionable wrongful discharge claim. Id. at 843. Accepting the employer's contention that "the right of free speech and expression does not extend to the workplace where a private employer must have flexibility in adopting and enforcing its employment policies and practices[,]" the court in Johnson ruled that "the plaintiff's conduct carried out in private employment is not constitutionally protected activity." Id. (emphasis supplied). Similarly, in another decision cited by the majority, Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (Wyo. 1995), the court affirmed the dismissal of two employees' retaliatory discharge claim where the management-level employees were fired for refusing to wear buttons urging a "no" vote on union recognition. The court's ruling that "[t]erminating an at-will employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer's premises during working hours does not violate public policy" was expressly predicated on the generally-applicable maxim that the right to free speech does not extend to private property. Id. at 82 (citing Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 567-70 (1972) and emphasis supplied).
In certain instances, this right of private employers to draw limits on their employees' freedom of speech may even extend beyond the physical premises of the place of employment. For example, in Korb v. Raytheon Corp., 574 N.E.2d 370 (Mass. 1991), the court determined that no public policy violation occurred where the discharged employee was the corporate spokesperson. Because the employee spoke out against the interests of his defense contractor employer during a press conference of a nonprofit organization of which he was a board member, the employer legitimately determined that the employee "had lost his effectiveness as its spokesperson." Id. at 372. The court expressly contrasted the situation present in Korb where the employer clearly "had a financial stake in not advocating th[e] position" stated by the employee to one in which "an employee is fired for speaking out on issues in which his employer has no interest, financial or otherwise." Id.; see also Prysak v. R.L. Polk Co., 483 N.W.2d 629, 634 (Mich.Ct.App. 1992) (finding no free speech violation where computer operator fired for writing a letter which threatened one of his employer's customers and noting distinction between speech that involves matters of public concern versus purely private speech).
In other words, while there is law across the United States that private employers, not being state actors, are not required to protect First Amendment rights of employees, and that they may even be allowed to restrict such rights if there is a nexus between the speech and a valid business-related interest of the employer, the law does not support the conclusion that the First Amendment has no application whatsoever to private employers.
Each of the above-discussed cases was cited by the majority to support its sweeping pronouncement that the Free Speech clause of the state constitution is not applicable to private employers, but none of them supports the extent to which the majority abrogates individual constitutional rights. This holding should have been narrowly drawn to pertain only to that speech which can be determined to have a legitimate "employment-related nexus" either through the location at which the speech is made, i.e. the place of employment, or through the ability of the speech to have a determinable effect on the employer or on the employee's job responsibilities. Absent this limitation, we are clearly authorizing the abrogation of the freedom of speech rights of all private sector employees. I both fear and predict that the majority's holding may be used as a shield to protect private sector employers from wrongful discharge suits that are prompted when an employer discharges an employee when it disagrees with an employee's exercise of his right to freedom of speech even though such speech has nothing whatsoever to do with the employment.
Under the majority holding, for example, an employee could be fired for writing a letter to the editor, joining an organization, wearing a badge, or even speaking out on a public issue, even though such activities are done on his own time and have nothing to do with his employment. I am unable to find any body of law in modern American jurisprudence that permits such an Orwellian result. West Virginia, which has historically been immensely protective of individual rights, stands alone in such an all-encompassing holding.
In the syllabus point of Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), this Court held:
The rule than an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.
See also, Tudor v. Charleston Area Medical Center, Inc., ___ W. Va. ___, ___ S.E.2d ___ (No. 23948, Dec. 16, 1997); syl. pt. 1, McClung v. Marion County Comm., 178 W. Va. 444, 360 S.E.2d 221 (1987).
In that regard, this Court has made clear that the Constitution of West Virginia is a source of public policy in the area of employment law. As this Court observed in syllabus point twp of Birthisel v. Tri-Cities Health Services Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992): "To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." See also, syl. pt. 6, Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (1997).
Thus, the suggestion in syllabus point four of the majority opinion that a statute would be required to impose or recognize public policy emanating from the Constitution of West Virginia with regard to free speech is slightly absurd. Certainly, the Constitution of West Virginia is already the law of the land in this State and enjoys a priority over statutory law. In fact, as this Court recognized in syllabus point two of Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979): "The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution." See also, Syl. pt. 1, State v. Bonham, 173 W. Va. 416, 317 S.E.2d 501 (1984). In Cordle v. General Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984), as the majority acknowledges, this Court indicated that public policy is a question of law which a court must decide in light of the particular circumstances of each case. 174 W. Va. at 325, 325 S.E.2d at 114. While the principle thus expressed in Cordle may provide certain parameters in considering free speech in the private sector, public policy, as discernable in the Constitution of West Virginia, need not be selectively incorporated into West Virginia law by statute.
Furthermore, we held in Tudor v. CAMC, ___ W. Va. ___, ___ S.E.2d ___ (No. 23948, Dec. 16, 1997) that a constructive discharge claim may be grounded upon public policy emanating from a mere state regulation. In Tudor, the evidence of the plaintiff indicated that her discharge from employment was brought about, in part, because she had voiced concerns about the nurse-patient ratio. Thus, inasmuch as the claim in Tudor was upheld by this Court upon the basis of public policy emanating from a regulation, it seems ludicrous to say that public policy cannot emanate from the Constitution of West Virginia.
Lastly, I am disappointed in the concurring opinion. It is full of bombast, but I see not one citation of authority within its body. It parades the horribles, claiming that the reasoning of the dissent would result in all manner of mayhem, including threats of fire and pestilence. But I see no law cited, nor any meaningful discourse of the legal issues presented. I'd rather "stand the constitution on its ear," as the concurring opinion claims Justice Starcher does, than to throw it out the window.
West Virginia is a state of employees. Under the majority opinion, many could very well be called upon to decide — your freedom of speech or your job! After Tiernan v. CAMC, our state slogan "Mountaineers are always free" certainly needs modification.
II. TORTIOUS INTERFERENCE
Similarly, with regard to the issue of tortious interference with a business relationship, I am of the opinion that the syllabus point should have been more narrowly drawn and that a case-by-case analysis is warranted. Pursuant to the adoption of the Restatement in syllabus point five, truth would be an absolute bar to a claim of tortious interference with a business relationship. Dealing in absolutes, however, is a dangerous game, especially in the world of business and human relations that has evolved since the Restatement was drafted.
Thus, a more practical approach was developed by this Court in Torbett v. Wheeling Dollar Savings Trust Co., 173 W. Va. 210, 314 S.E.2d 166 (1983), syllabus point two of which states in part:
If a plaintiff makes a prima facie case [of tortious interference], 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.
To borrow a phrase from this Court's decision in Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994), however, "a bad motive will defeat a qualified privilege defense." See also, 41 Harv. L. Rev. 728 at p. 749-50 (1928), stating that "[t]he privilege is conditional and if the occasion were used not to give bona fide advice, but to injure the plaintiff for any ulterior reason, the defendant should lose his privilege and therefore fail in his defense." The above language of Torbett, indicating that truth is only a factor to be considered in a tortious interference claim, allows for unforeseen circumstances where a bad motive on the part of the defendant may be dispositive. See also, Voorhees v. Guyan Machinery Company, 191 W. Va. 450, 446 S.E.2d 672 (1994), citing Torbett and affirming a judgment for the plaintiff for tortious interference, where the former employer, who notified the plaintiff's new employer of the plaintiff's covenant not to compete, failed to show "legitimate competition" between it and the plaintiff's new employer.
Thus, the holding of the majority not only departs from existing law, but may under some circumstances license malicious conduct. When one tortiously interferes with another's employment, even if the truth is employed in such endeavor, such conduct should under some limited circumstances be actionable if there is malicious intent to do substantial economic harm.
I am, therefore, of the opinion that the Restatement adopted by the majority, pursuant to which truth is an absolute defense in a tortious interference action, is "too tenuous a premise upon which to anchor any steady standard of law." State ex rel. J.L.K. v. R.A.I., 170 W. Va. 339, 346, 294 S.E.2d 142, 149 (1982). Accordingly, I dissent from the holding of the majority in syllabus point five.