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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


January 2002 Term

FILED
June 28, 2002
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
__________ No. 30523 __________ SHELIA D. ALLEN, Plaintiff Below, Appellee v. MICHAEL L. ALLEN, Defendant Below, Appellant
July 1, 2002
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

__________________________________________________________________
Appeal from the Circuit Court of Roane County
Honorable David W. Nibert, Judge
Civil Action No. 97-D-24
AFFIRMED
__________________________________________________________________
Submitted: June 11, 2002
Filed: June 28, 2002 Loren B. Howley, Esq. Grantsville, West Virginia Attorney for Appellant H. Beth Sears, Esq. Hancock & Sears Ravenswood, West Virginia Attorney for Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT


1.

"A motion to vacate a judgment made pursuant to Rule 60(b),

W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). 2. "An appeal of the denial of a Rule 60(b) motion brings to consideration

for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order." Syllabus Point 3, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). 3. "Generally, when a successor judge is properly assigned pursuant to Rule

63 of the West Virginia Rules of Civil Procedure, such successor judge steps into the shoes of his or her predecessor and, when the transcript of the proceedings is sufficient, may take any action that such predecessor may properly have taken, either upon proper motion or sua sponte." Syllabus Point 7, Coleman v. Sopher, 201 W.Va. 588, 499 S.E.2d 592 (1997). 4. "Once a successor judge is properly assigned pursuant to Rule 63 of the

West Virginia Rules of Civil Procedure and Rule XVII of the West Virginia Trial Court Rules for Trial Courts of Record, his or her decision or judgment is to be reviewed on appeal under the same standard that would have been applied to the decision of the original trial judge. To do otherwise would disrupt the administration of justice. To the extent that our prior cases are

i

inconsistent with this decision, they are expressly overruled." Syllabus Point 1, Tennant v.
Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).


ii


Per Curiam:

This case is before this Court upon appeal of a final order of the Circuit Court of Roane County entered on December 28, 2001. In that order, the circuit court granted a W.Va.R.Civ.P. 60(b) motion filed by appellee and plaintiff below, Sheila D. Allen, for relief from a prior order granting residential custody of her two children to their father, Michael Allen, the appellant and defendant below. The order provided that Sheila Allen would retain custody of the children, and that the matter would be remanded to the family law master1 to determine, inter alia, whether Sheila Allen's remarriage and relocation of residence constituted a material and substantial change in circumstances.

In this appeal, Michael Allen contends that Sheila Allen failed to present any new grounds for relief pursuant to Rule 60(b), and therefore, the circuit court erred by granting the motion. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

During the pendency of this appeal, the Legislature abolished the position of family law master and replaced it with the judicial office of family court judge. See W.Va. Code

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