State ex rel. Cash v. Lively

• Decision Date: 28 March 1972
• Docket Number: No. 13123,13123
• Citation: 155 W.Va. 801,187 S.E.2d 601
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Clyde J. CASH v. Frank A. LIVELY and Audrey Jewell Lively, his wife.

Page 601

187 S.E.2d 601

155 W.Va. 801

STATE ex rel. Clyde J. CASH v. Frank A. LIVELY and Audrey Jewell Lively, his wife.

No. 13123.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 8, 1972.

Decided March 28, 1972.

Syllabus by the Court

1. 'In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.' Point 2, Syllabus, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302 (47 S.E.2d 221).

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

3. Where a parent, through a court order, has lost the legal custody of a child and his or her behavioral pattern amounts to an abandonment of such child, he or she will not be permitted to regain that custody unless it be shown that the proposed change of custody will materially promote the moral and physical welfare of the child.

Spilman, Thomas, Battle & Klostermeyer, George G. Guthrie, John H. Tinney, Charleston, for relator.

Lewis, Ciccarello, Masinter & Friedberg, Arthur T. Ciccarello, Martin J. Glasser, Charleston, for respondents.

CAPLAN, Judge:

Invoking the original jurisdiction of this Court the petitioner, Clyde J. Cash, seeks a writ of habeas corpus ordering the respondents, Frank A. Lively and Audrey Jewell Lively, his wife, to deliver to the petitioner the care, custody and control of Karen Kimberly Cash and Melinda Cheryl Cash. Upon the petition and its exhibits this Court issued a writ returnable September 28, 1971. The case was continued generally at that time for the purpose of taking depositions. On February 8, 1972 this proceeding was submitted for decision upon the petition and its exhibits; upon the answer of the respondents; upon the replication to the answers of the respondents; upon the depositions and exhibits filed therewith and upon briefs and oral arguments of counsel.

The petitioner and Judith Lynn Cash were married to each other in Kanawha County on July 13, 1960. Two children, Karen Kimberly Cash and Melinda Cheryl Cash, ages nine and eight, respectively, at the time this suit was instituted, were born during this marriage. At the time of the marriage Clyde Cash was serving in the Air Force at Guthrie Air Force Base in Charleston. Upon receiving an honorable discharge he later joined the army for one year and upon discharge engaged in sporadic employment.

In the spring of 1965 marital troubles arose and the petitioner and his then wife separated, Judith taking the two children to Florida, where they thereafter resided. The petitioner was living in Buena Vista, Virginia, but when his wife left for Florida he moved to Roanoke, Virginia where he enrolled in a machinists school. He was paid $75.00 a week by the government for a period of approximately six months. During this time he was living with a woman whom he subsequently married. He was the father of two children born to her, one of whom admittedly was born out of wedlock, there being confusion as to whether the second child was born prior to the marriage.

The petitioner's wife Judith, obtained a divorce in Escambia County, Florida by an order dated July 11, 1966. The court awarded the divorce and, not having jurisdiction of the petitioner, did not award any alimony or child support but did award the care, custody and control of the two minor children to Judith Lynn Cash.

According to the petitioner's deposition the petitioner visited Judith on several occasions while she was living in Florida. He did not, however, contribute to her support or to the support of the children. The petitioner alleges, however, that he offered to contribute to such support but that his wife consistently refused his offer. During the time Judith lived in Florida she maintained herself and her daughters by obtaining employment at a chemical plant but was never able to take care of all of their needs. Her income was supplemented by friends and by her parents, the respondents.

Subsequent to the divorce Judith became ill and on two occasions returned to Charleston where the last time she underwent an operation for the removal of a kidney. There is some evidence which shows that the petitioner came to Charleston during her illness but did not stay any extended time. Furthermore, it is undisputed that he did not contribute to the payment of costs incurred by her during her illness. Judith returned to Florida after her illness and her condition failed to improve materially. The record is again in confusion as to whether or not the petitioner visited her and the children during this time. Judith's condition worsened and she died in Charleston, West Virginia on November 10, 1970. She died testate having written a will which was probated in Kanawha County. In this will she designated respondent, Audrey Jewell Lively, her mother, as trustee and executrix and also appointed her as the lawful guardian of her children. On December 14, 1970 the County Court of Kanawha County, on the application of Audrey Jewell Lively, appointed her guardian of Karen Kimberly Cash and Melinda Cheryl Cash.

On August 25, 1971 the petitioner filed a petition for a writ of habeas corpus seeking custody of the two minor children as aforesaid.

While the respondents have the physical custody of Karen Kimberly Cash and Melinda Cheryl Cash, it is incumbent upon this Court to decide who is entitled to the legal custody. This decision can be made only after a thorough examination of the record, consisting principally of depositions, and the application to the facts adduced of certain well accepted legal principles.

First and foremost in a contest involving the custody of a child is the consideration of that child's welfare. It has been held repeatedly by this Court that the welfare of the child is the polar star by which the discretion of the court will be guided. State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798; Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177; Harmon v. Utterback, 144 W.Va. 419, 108 S.E.2d 521; Stout v. Massie, 140 W.Va. 731, 88 S.E.2d 51; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253; State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221.

Another principle to which this Court has tenaciously adhered, and which is embodied in the provisions of Code, 1931, 44--10--7, is that the parents of any minor child are entitled to the custody of the person of such child and if there is only one parent surviving he or she is entitled to such custody. This right of the parent to custody, though not absolute, is founded on natural law because the child is his or hers to care for and rear. State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798; Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177; Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d...