Allen v. Allen, 16025

• Decision Date: 26 June 1984
• Docket Number: No. 16025,16025
• Citation: 320 S.E.2d 112,173 W.Va. 740
• Court: West Virginia Supreme Court
• Parties: Timothy J. ALLEN v. Robin Jeanette Green ALLEN.

Page 112

320 S.E.2d 112

173 W.Va. 740

Timothy J. ALLEN v. Robin Jeanette Green ALLEN.

No. 16025.

Supreme Court of Appeals of West Virginia.

June 26, 1984.

Dissenting Opinion July 20, 1984.

Syllabus by the Court

1. "In a contest involving the custody of infant children, their welfare is the guiding principle by which the discretion of the trial court will be controlled, and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion." Syl. pt. 1, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977).

2. "With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit." Syl. pt. 2, Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981).

3. The primary caretaker presumption is rebuttable and may be overcome if the primary caretaker is shown by a clear preponderance of the evidence to be an unfit person to have custody of a child of tender years.

4. The discretion of the trial court in making an award of child custody must be guided by the conditions and circumstances existing at the time of the decree.

5. "Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately its conclusions of law thereon before the entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance." Syl. pt. 1, Peoples Bank of Point Pleasant v. Pied Piper Retreat, Inc., 158 W.Va. 170, 209 S.E.2d 573 (1974), quoting syl. pt. 1, Commonwealth Tire Company v. Tri-State Tire Company, 156 W.Va. 531, 193 S.E.2d 544 (1972).

Richard L. Vital, Barboursville, for appellant.

Phillip C. Duff, Huntington, for appellee.

McGRAW, Justice:

This is an appeal from a final order of the Circuit Court of Cabell County, entered February 3, 1983, which granted the parties a divorce on grounds of irreconcilable differences. The appellant, Robin Jeanette Green Allen, contends that the final decree is clearly wrong insofar as it grants the appellee, Timothy J. Allen, permanent custody of the parties' infant child. We conclude that the trial court abused its discretion in making the custody award, and we reverse that part of the circuit court's order.

The parties to this action were married in December 1978, and had one child, a son, who was born in 1980. In November 1981, the appellee filed for divorce in the Circuit Court of Cabell County, alleging cruel and inhuman treatment by the appellant. The appellant denied the allegations and counterclaimed on grounds of cruelty and irreconcilable differences. Both parties sought permanent custody of their infant son.

The appellee subsequently admitted the existence of irreconcilable differences between parties and abandoned his claim of cruelty. At a hearing conducted on December 23, 1981, the parties submitted to the divorce commissioner a separation agreement which granted the appellant permanent custody of the child and provided for child support and visitation by the appellee. On January 6, 1982, the commissioner submitted his report to the circuit court, recommending that the parties be granted a divorce on grounds of irreconcilable differences and that the separation agreement be adopted. Although the circuit court apparently took no action on the Commissioner's recommendations, the parties observed the provisions of the separation agreement for some time.

In June 1982, however, the appellee violated the terms of the agreement by failing to return the child to the custody of the appellant at the end of a visitation period. The appellee subsequently filed a motion with the circuit court seeking disapproval of the custody and support provisions of the separation agreement. After a hearing on July 29, 1982, the court granted the appellee's motion and ordered a hearing on the issue of permanent custody. The court permitted the appellant to retain custody of the child until August 29, 1982, at which time it ordered the child placed in the temporary custody of the appellee pending the final hearing.

The custody hearing was conducted on October 4, 1982. At the conclusion of the testimony the court concluded that the appellant was an unfit mother and awarded custody of the child to the appellee. This ruling was incorporated into the final decree of February 3, 1983, which granted the parties a divorce on grounds of irreconcilable differences. After the appellant's petition for modification of the custody decree was denied on August 25, 1983, she instituted this appeal.

On appeal the appellant contends that the trial court abused its discretion in making its initial award of permanent custody. She asserts that the court did not afford her the benefit of the primary caretaker presumption enunciated in Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981). She also contends that the circuit court was clearly wrong in concluding that she was unfit to have custody.

"In a contest involving the custody of infant children, their welfare is the guiding principle by which the discretion of the trial court will be controlled, and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion." Syl. pt. 1, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977). In Garska v. McCoy, supra, we held, at Syllabus Point 2: "With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit." Where one party in a divorce proceeding involving custody of a child of tender years can clearly demonstrate that he or she had taken the primary responsibility for child care and nurturing duties of a parent during the marriage, the presumption attaches, and the court must award custody of the child to the primary caretaker unless it is shown that he or she is unfit.

We note that the record in this case contains no determination by the trial court with respect to the primary caretaker issue. ¹ There is no real dispute among the parties with respect to this issue, however. "The primary caretaker is that natural or adoptive parent who, until the initiation of the divorce proceedings, has been primarily responsible for the caring and nurturing of the child." Syl. pt. 3, Garska v. McCoy, supra. The appellant testified without contradiction at the hearing below that she had performed the traditional role of homemaker throughout the marriage and had taken the primary responsibility for caring for the child from the time of his birth, and her assertion is not challenged in this appeal. Accordingly, the only conclusion that can be drawn from the record is that the appellant was the primary caretaker parent prior to the institution of the divorce proceedings.

This determination is not dispositive of the case before us, however. The primary caretaker presumption is rebuttable and may be overcome if the primary caretaker parent is shown by a clear preponderance of the evidence to be an unfit person to have custody of a child of tender years. See J.B. v. A.B., W.Va., 242 S.E.2d 248 (1978); Rohrbaugh v. Rohrbaugh, 136 W.Va. 708, 68 S.E.2d 361 (1951). Thus, the ultimate issue in this case is whether the trial court abused its discretion in concluding that the appellant was an unfit person to have custody.

The trial court's determination was apparently based on the evidence relating to the appellant's misconduct prior to and shortly after the institution of divorce proceedings in November 1981. The evidence showed that the appellant had engaged in extensive use of alcohol, marijuana and other illicit drugs during this period which had ultimately led to a short period of hospitalization in October 1981. There was some evidence of irrational behavior on her part, and the appellee testified that the appellant frequently went out to bars with friends in the evenings leaving the appellee alone with the child until the early morning hours. The evidence also showed that the appellant had a criminal record which consisted of two minor offenses. On January 23, 1982, however, she and another individual were arrested, and subsequently indicted, on charges of armed robbery.

Although the appellant and other witnesses vigorously denied the allegations that she behaved irrationally on occasion and frequently left the child with his father to go out in the evenings, she freely admitted her prior alcohol and drug abuse and criminal record. She asserted, however, that her husband was equally guilty of substance abuse prior to the institution of the divorce proceedings, an allegation which he denied. ² She also testified, without contradiction, that her husband worked irregular shifts averaging 60 hours per week and that he rarely assisted her in caring for and rearing the child. She testified that the minor offenses detailed in her criminal record had occurred sometime prior to the filing of the divorce complaint and offered substantial, uncontradicted testimony, including that of the robbery victims, to show that she had been an unwilling accomplice to the armed robbery. The appellee admitted that he had been aware of the appellant's drug and alcohol use and of her prior criminal record when he consented to the custody provisions of the separation agreement and that she informed him of her arrest on the armed robbery charges within days.

The record also contains substantial evidence of the appellant's conduct after the date of her arrest, however. The appellant expressed regret and repentance for her prior misconduct and testified that her arrest on the armed robbery charges had been "an awakening" for her. Her uncontradicted testimony showed that she had ceased all use of alcohol and...