Fizer v. Fizer

• Citation: 310 S.E.2d 465,172 W.Va. 704
• Decision Date: 14 December 1983
• Docket Number: No. 15732,15732
• Court: Supreme Court of West Virginia
• Parties: Deanna Joycelyn FIZER v. James Clinton FIZER.

Page 465

310 S.E.2d 465

172 W.Va. 704

Deanna Joycelyn FIZER v. James Clinton FIZER.

No. 15732.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Syllabus by the Court

"In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syllabus Point 1, Marcum v. Browning, 171 W.Va. 5, 297 S.E.2d 204; Syllabus, Waller v. Waller, 166 W.Va. 142, 272 S.E.2d 671 (1981); Syllabus Point 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1965); Syllabus Point 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945).

Robert K. Means, Huntington, for appellant.

No appearance for appellee.

PER CURIAM:

Deanna Joycelyn Fizer appeals from a final order of the Circuit Court of Cabell County which denied her a divorce decree and alimony and awarded the appellee, James C. Fizer, the decree. We find that the lower court's decision was not supported by the evidence and accordingly, we reverse the order dismissing the appellant's complaint.

The marriage that is the subject of this action was the second marriage between the parties. Their first divorce, which was granted to Mrs. Fizer after seventeen and a half years of marriage, was based on the grounds of cruelty incidental to Mr. Fizer's excessive drinking. After the divorce, the Fizers maintained separate residences. However, they saw each other frequently and Mr. Fizer continued to give his paycheck to his ex-wife so that she could pay their bills.

In August of 1980, five years after their divorce, the couple remarried. In January 1981, Mr. Fizer announced his intention to enter an alcoholic treatment center recommended by his employer. During the time he was at the center Mr. Fizer did not communicate with his wife. He remained at the center for thirty days. Upon his return, he asked his wife to read some material on the family of the alcoholic and to attend Alanon meetings. One week later, he left.

Mrs. Fizer subsequently filed for divorce based on cruel and inhuman treatment and asked that her husband be required to pay attorney fees, court costs and bills and obligations incurred by the parties during their marriage. She also requested that the appellee be compelled to account for stocks, bonds, savings and checking accounts and other personal property. Mr. Fizer counterclaimed, alleging that Mrs. Fizer was guilty of extreme and repeated cruelty forcing him to leave the marital home.

Two hearings were held in connection with these proceedings. Upon their completion, the court entered judgment in favor of the appellee and ordered that the joint property be equally divided. The order was silent as to the bonds, stock and bank accounts. The court noted that Mrs. Fizer was aware of Mr. Fizer's drinking problems and went on to express doubts as to Mr. Fizer's competency to consent to the second marriage. The trial judge concluded "that the marriage itself may have triggered his entry into the last stage of his illness" ¹ and held that Mrs. Fizer's behavior during the second marriage constituted cruel and inhuman treatment endangering Mr. Fizer's physical and mental well being. ²

It is well established that a finding of fact by a trial court will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence. More specifically, this Court has held: "In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syllabus Point 1, Marcum v. Browning, 171 W.Va. 5, 297 S.E.2d 204; Syllabus, Waller v. Waller, 166 W.Va. 142, 272 S.E.2d 671 (1980); Syllabus Point 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1965); Syllabus Point 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945). And, "[w]hen the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review." Syllabus Point 8, Bluefield Supply Company v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965). See also, Syllabus Point 5, Mormanis v. Mormanis, 170 W.Va. 717, 296 S.E.2d 680 (1982); Syllabus, Rollyson v. Rollyson, 170 W.Va. 329, 294 S .E.2d 131 (1982).

In the case before us, the trial court's finding that Mr. Fizer was incompetent to enter the second marriage is not only unsupported by the evidence, but irrelevant to the issue before that court. No one presented testimony on the issue of Mr. Fizer's competency to enter a marriage contract. Indeed, the evidence that was presented indicated the opposite. At the time of the marriage Mr. Fizer was working at a responsible job, supervising other employees and making over $32,000 per year. Furthermore, the trial court's conclusion that the second marriage triggered the last stages of Mr. Fizer's illness is entirely without basis in the record. The trial court based its decision, in part, on acknowledgement that she knew her husband had a drinking problem...