Overfield v. Collins

• Decision Date: 11 February 1997
• Docket Number: No. 23046,23046
• Citation: 483 S.E.2d 27,199 W.Va. 27
• Court: West Virginia Supreme Court
• Parties: Shirley V. OVERFIELD, Appellee v. Tammy Lynn COLLINS, Appellant.

Page 27

483 S.E.2d 27

199 W.Va. 27

Shirley V. OVERFIELD, Appellee v. Tammy Lynn COLLINS, Appellant.

No. 23046.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1996.

Decided Dec. 6, 1996.

Rehearing Refused Feb. 11, 1997.

[199 W.Va. 29] Syllabus by the Court

1. Any attempt by a non-parent to judicially change the care and custody of a child from a natural parent must precede that attempt with: (1) the filing of a petition setting forth all of the reasons why the change of custody is required; and (2) the service of that petition, together with a reasonable notice as to the time and place that petition will be heard. Following the filing and service of the petition and notice of hearing upon that petition, the natural parents whose rights are being affected shall

[199 W.Va. 30] have the right to: (1) present evidence as to the reasons why custody should not be changed; and (2) obtain a decision from a neutral, detached person or tribunal

2. When a natural parent transfers temporary custody of their child to a third person and thereafter seeks to regain custody of that child, the burden of proof shall be upon that parent to prove by clear and convincing evidence that he or she is fit; thereafter the burden of proof shall shift to the third party to prove by clear and convincing evidence that the child's environment should not be disturbed because to do so would constitute a significant detriment to the child notwithstanding the natural parent's assertion of a legal right to the child. To the extent that our decision in McCartney v. Coberly, 250 S.E.2d 777 (W.Va.1978) is inconsistent with this holding, it is expressly overruled.

3. When a natural parent transfers permanent custody of his or her child to a third person and thereafter attempts to regain custody of that child, the burden of proof shall rest exclusively upon the parent attempting to regain custody of his or her child by proving with clear and convincing evidence: (1) that he or she is fit; and (2) that a transfer of custody so as to disturb the child's existing environment would constitute a significant benefit to the child. To the extent that our decision in State ex rel. Harmon v. Utterback, 144 W.Va. 419, 108 S.E.2d 521 (1959) is inconsistent with this holding, it is expressly overruled.

4. If a natural parent intends to voluntarily transfer permanent custody of a child to a third person, then the document effecting that transfer should expressly provide that it is the intention of the parent to permanently transfer the custody of the child to the third person.

5. If a natural parent intends to voluntarily transfer temporary custody of a child to a third person, then the document effecting the transfer should expressly provide that it is the intention of the parent to temporarily transfer custody to the third person.

6. In the unlikelihood that the scrivener of a document voluntarily transferring the custody of a child between a parent and a third person fails to express any intention as to the duration of the custodial change, it shall be presumed that the transfer is temporary, and the burden of proof shall be upon the third person to prove by clear and convincing evidence, either intrinsic or extrinsic, that it was the intention of the parent to transfer permanent custody of the child to the third person.

Regina L. Charon, Morgantown, for Appellee.

Fonda L. Holehouse, Morgantown, for Appellant.

RECHT, Judge: ¹

This is an appeal by Tammy Lynn Collins (hereinafter "appellant"), the natural mother of Aaron and Ashley Collins, from a judgment of the Circuit Court of Monongalia County denying appellant's efforts to regain custody of her two children, who have resided with their maternal grandparents since January 1991. ²

This case requires a review and analysis of (1) the examination of the burden and quantum of proof when a natural parent requests the return of a child after transferring temporary or permanent custody of a child to a third person; and (2) the formalities involved in the voluntary transfer of the custody of The Circuit Court of Monongalia County found the appellant had knowingly and voluntarily transferred permanent custody of her children to her parents in April 1991. Upon that finding, the circuit court affirmed the conclusion of the family law master that the appellant failed to satisfy her burden of proving that the return of the custody of her two children would promote their best interests and welfare. Because we hold that the predicate finding of the family law master and circuit court that the appellant intended to permanently transfer custody of her children to her parents was clearly erroneous, the judgment denying a change of custody to the appellant must be reversed and remanded to the Circuit Court of Monongalia County with specific directions consistent with this opinion.

[199 W.Va. 31] children from a natural parent to a third party.

I. FACTS

The appellant and Marc Collins were married in June 1981. This union produced two children, Aaron and Ashley Collins, whose respective ages at this time are fourteen and eleven.

In December 1985, approximately four months after the birth of Ashley, the Collins' home was destroyed by fire. As a result of the loss of their home, the Collins family began living with the appellant's parents, James and Shirley Overfield. While living in the Overfield home, the Collinses experienced marital difficulties which ultimately led to their divorce in September 1986. The appellant was awarded custody of the two children, and Mr. Collins was granted visitation privileges with both children.

In November 1986, the appellant and her two children returned to a home rebuilt on the site upon which the former house was located. Four years later, in January 1991, the appellant suffered a spinal injury as a result of a sporting accident. This condition rendered her disabled for approximately thirteen months, during which time she was terminated from her employment as an administrative secretary to the West Virginia University News and Information Services, following the expiration of her accumulated sick leave.

Because of the appellant's desperate financial and physical problems, she requested help from her parents who agreed to assist her in the care of the children. This arrangement initially required the children to spend a substantial amount of time with their grandparents. The appellant's plea for help set into motion a sequence of events from which evolved the tragic custody battle we now have before us.

In April 1991, the appellant's parents approached her with what the appellant describes as a plan to better care for the children. The cornerstone to this plan was an affidavit prepared by a lawyer retained by the Overfields. Each of the parties to this appeal interprets the intent of this affidavit in opposite ways. The appellant is unyielding in her position that it was her understanding that the affidavit was intended to transfer only temporary custody of her children until she was in better financial and physical condition to resume a normal living arrangement with her children under a single roof. On the other hand, the Overfields contend that it was the appellant's intention to permanently transfer custody of her two children. ³ Approximately seven days after the affidavit was executed and delivered by the appellant, the Overfields filed a petition in the Circuit Court of Monongalia County requesting relief in the form of an order granting the Overfields permanent custody of the two children. It is significant to note that (1) the affidavit executed and delivered by the appellant was attached to the petition as a basis for the requested relief; and (2) the Overfields failed to serve the petition or notice of hearing on said petition upon the appellant. The appellant was unaware of the filing of the petition, the hearing upon the petition, or the order entered following the hearing on the petition until one year later when she informed her parents that she was physically able to resume a normal living relationship with her children. From this petition for custody evolved an order entered by the Circuit Court of Monongalia County approving the findings and conclusions of the family law master granting permanent custody of the children to the Overfields. This order was entered June 24, 1991, and it erroneously found that the appellant was served with the petition and notice of hearing on the petition.

While the appellant was recovering from her spinal injury, she saw her children frequently, and after fully recovering she sought to regain custody of her children from her parents. It was only at this time that the appellant realized that her parents had used the affidavit prepared by their attorney and signed by her as a basis to gain permanent custody of the children.

In July 1992, the appellant, without the assistance of a lawyer, filed a petition to regain custody of her children. By Order entered July 27, 1993, the Circuit Court of Monongalia County denied the appellant's petition to regain custody of her children and adopted the findings and conclusions of the family law master, including:

Respondent Tammy Collins, by writing and by action, gave physical custody of the children to the Petitioners. Respondent Tammy Collins testified she understood the arrangement to be temporary; that she signed the affidavit based upon what was told to her; that she was pressured to sign the document by her mother, a Petitioner herein.

Respondent Tammy Collins has had one and a half years of college, edited articles in [sic] paper for the West Virginia University Information Office, was thirty[-]three at the time of the execution o[sic] the affidavit. The Master finds the document to be clear and unequivocal, and not the result of duress or fraud.

The conclusion of the family law master, which was adopted by the circuit court, was that because permanent custody...