Frame v. Wehn
| Decision Date | 24 May 1938 |
| Docket Number | 8687. |
| Citation | 197 S.E. 524,120 W.Va. 208 |
| Parties | FRAME v. WEHN et al. |
| Court | West Virginia Supreme Court |
Submitted May 10, 1938.
Syllabus by the Court.
1. State ex rel. Cooke v. Williams, 107 W.Va. 450, 148 S.E. 488; Reynolds v. Reynolds, 109 W.Va. 513, 155 S.E. 652.
2. Under Code, 44-10-7, in a contest between a surviving parent and another person over the custody of a child its guardian is not a necessary or proper party. Only where both parents are dead or living separate and apart does the foregoing section provide for the intervention of a guardian in the proceedings.
Appeal from Circuit Court, Taylor County.
Suit by Cleo B. Frame against Robert A. Wehn and Charles W. Wehn to obtain the custody of Dolores B. Wehn. From a decree in favor of the plaintiff, Charles W. Wehn, appeals.
Affirmed.
W. P Samples, of Grafton, for appellant.
Harry Friedman, of Grafton, for appellee.
This proceeding involves the custody of Dolores B. Wehn, a female child nine years of age. Cleo B. Frame, the child's mother, filed her petition in the circuit court of Taylor County against Robert A. Wehn (deceased pendente lite), the child's father and petitioner's divorced husband, and Charles W. Wehn, the paternal grandfather, to the latter of whom the custody of the child had been previously decreed. From a decree awarding to the mother the custody, support, maintenance and education of the child, the grandfather prosecutes this appeal and supersedeas.
The petition in the court below alleges that on October 18, 1935 the petitioner was awarded a decree of divorce from her then husband, Robert A. Wehn; that the chancellor, at that time in view of petitioner's then financial inability to support her child and the financial inability and unwillingness of the child's father to provide and furnish the petitioner with the funds and means required for its support, maintenance and education, and upon her own willingness and consent so to do, awarded the care and custody of the child to its grandfather, Charles W. Wehn; that upon information and belief her daughter is not being given the care and attention which a child of her tender years properly requires; that there is no woman in the home of the grandfather where the child is being supported; and that she is otherwise being neglected. The petitioner further alleges that on April 4, 1936, she married one Richard O. Frame; that she and her husband reside in Pittsburgh, where the latter is employed as an electrician, earning about $200 per month; that both she and her husband desire the custody of the child and are willing and able to support it; that the child is now of an age when it is peculiarly important that it should be under the control and supervision of its mother.
The answer of respondents, except for the admission that there was no woman in the home, denied in substance the allegations of the petition. An amended and supplemental answer was later filed setting forth that a woman had been secured in the grandfather's home for the purpose of giving care and attention required by the child.
From the record it appears that petitioner was married to respondent, Robert A. Wehn, in 1926; that, in 1931, the couple, together with their child (born in 1928) came to the home of the grandfather; and that in August, 1935, petitioner instituted a suit in divorce, charging said respondent with desertion, in which suit a decree of divorce was entered in petitioner's favor. In her bill of complaint in that suit petitioner, after alleging, among other things, the ability and willingness of the grandfather, who, since 1931, had been and still was supporting and maintaining the child, to have its custody, and her inability to support it, requested that the child be given into the custody of its grandfather. And, in conformity therewith, the custody was so awarded in the divorce decree "until the further order of the Court."
It appears that the grandfather is in comfortable circumstances. He resides in a seven-room house in the City of Grafton, worth about $10,000. He owns several lots in the city, a small tract of coal of doubtful value, and an interest in two business buildings from which he obtains about $300 a month under ten-year lease. He testified of his love and affection for the child, of his intention to provide for her at his death and his willingness to educate her.
On the other hand, neither the petitioner nor her present husband has any real or personal property, except furniture partly paid for. They do, however, reside in a four-room apartment on the third floor of a residence building in Pittsburgh; the husband has rather regular employment from which he earns at least $200 a month, and if the child is awarded to them, they represent that they will procure larger quarters. The record discloses the proximity of schools and parks to the petitioner's present residence. Her moral fitness to assume the custody of the child is well supported by both pleadings and proof.
The only major conflict of the evidence involves the circumstances under which the petitioner left the Wehn home in 1935, shortly before the institution of the divorce suit. The grandfather testified, in effect, that petitioner told him that h...
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In re Clifford K.
...to establishment of paternity, rights of grandparent are more limited than those of alleged biological parent); Frame v. Wehn, 120 W.Va. 208, 212, 197 S.E. 524, 526 (1938) (finding that rights of grandparents were not coextensive with those of parents in guardianship For these reasons, then......
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Clifford v. Paul, No. 31855 (WV 6/17/2005)
...to establishment of paternity, rights of grandparent are more limited than those of alleged biological parent); Frame v. Wehn, 120 W. Va. 208, 212, 197 S.E. 524, 526 (1938) (finding that rights of grandparents were not coextensive with those of parents in guardianship For these reasons, the......