Funkhouser v. Funkhouser

• Citation: 216 S.E.2d 570,158 W.Va. 964
• Decision Date: 01 July 1975
• Docket Number: No. 13578,13578
• Court: Supreme Court of West Virginia
• Parties: Beverly Fay FUNKHOUSER v. Ronald Roscoe FUNKHOUSER.

Page 570

216 S.E.2d 570

158 W.Va. 964

Beverly Fay FUNKHOUSER v. Ronald Roscoe FUNKHOUSER.

No. 13578.

Supreme Court of Appeals of West Virginia.

July 1, 1975.

Syllabus by the Court

1. 'With reference to the custody of very young children, the law favors the mother if she is a fit person, other things being equal * * *.' Part, Point 2, Syllabus, Settle v. Settle, 117 W.Va. 476 (, 185 S.E. 859) (1936).

2. The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.

3. 'When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review.' Point 8, Syllabus, Bluefield Supply Company v. Frankel's Appliances, Inc., 149 W.Va. 622 (, 142 S.E.2d 898) (1965).

Richard L. Douglas, Rice, Hannis & Rice, Martinsburg, for appellant.

Charles A. Kiser, Rodgers & Kiser, Martinsburg, for appellee.

CAPLAN, Justice:

This is an appeal from a final order of the Circuit Court of Berkeley County entered on September 12, 1974 in an action for divorce wherein Beverly Fay Funkhouser, the plaintiff below and appellant here, was awarded a divorce from Ronald Roscoe Funkhouser. Although in that proceeding the court granted the plaintiff a divorce, it awarded custody of the minor child born of that marriage to the husband. The appellant, Beverly Fay Funkhouser, now seeks a reversal of the court's order only insofar as the custody of the child is concerned.

Beverly Fay Funkhouser, Herein called plaintiff, and Ronald Roscoe Funkhouser, defendant, were married to each other on August 26, 1966 in Berkeley County, West Virginia. On January 15, 1970 Ronald Todd Funkhouser was born of that marriage. During the month of June, 1970 the plaintiff and defendant were involved in an automobile accident in which they both received serious injuries. The plaintiff, however, received more serious injuries, including injuries to the brain, which rendered her unconscious for a period of approximately six weeks. For approximately six months following the accident the plaintiff was substantially incapacitated and was unable to take care of herself, her husband or her child. During this period of recuperation, upon leaving the hospital, the plaintiff and her family moved in with her husband's parents and the paternal grandmother took care of the infant child.

In December, 1970 the plaintiff was sufficiently recovered so that she could take care of herself and her family and they moved into a mobile home on the property of her husband's parents where they cohabited as husband and wife until January, 1973. Sometime during that month, domestic problems having arisen, the defendant left the marital domicile and moved in with his parents. The plaintiff continued to live in the mobile home with her child until March of 1973 when the defendant without the consent of the plaintiff took the child and placed him in the home of his mother where the child to this day has resided.

The plaintiff, in April, 1973, instituted an action against the defendant in the Circuit Court of Berkeley County wherein she sought a divorce. On April 23, 1973 a preliminary hearing was held, during which several witnesses were heard on behalf of each party. Basically, the witnesses for the plaintiff, including her mother and an aunt, testified that Beverly was a fine mother and was well able to take care of her child. On the other hand, the defendant's witnesses, including the defendant and his mother and father, testified that Beverly was not rational or stable and should not have custody of the child. The latter line of testimony related to her mental condition, allegedly resulting from the brain injury received in the 1970 accident.

The court noted 'if she is mentally and physically able to have the custody of the child and she is not In otherwise an unfit person * * * she is entitled to have her child. * * * I think all along that a mother of a three year old infant is entitled to be the mother of it unless there is some good reason to the contrary.' The court then, out of an abundance of caution and with obvious concern for the child, decided to leave the child where it was, pending the divorce action, and awarded temporary custody to Margie Funkhouser, the defendant's mother. The trial judge then directed counsel for the plaintiff to have Beverly Funkhouser examined by a physician and a psychiatrist to determine her physical and mental ability and capacity to take care of her son.

There were no further proceedings in this matter until August 1, 1974. During that interim the plaintiff continued to reside in the marital domicile on the Funkhouser property until October, 1973 when she left and moved into the home of her parents. Also during that period the plaintiff consulted a psychiatrist and a psychologist.

At the final hearing on August 1, 1974, the plaintiff produced as a witness Dr. Hiram Sizemore, Jr., a duly licensed psychiatrist. Dr. Sizemore related that he had seen Beverly Funkhouser on three occasions, the last visit having been in the spring of 1974. Upon being asked his opinion as to the plaintiff's emotional fitness to have custody of the child, he answered 'I can find nothing at the present time which I think would interfere with her ability of being a mother or taking custody of the child.' He further stated that during the last year she had shown responsibility in working, in keeping her appointments and in following recommendations made to her. Dr. Sizemore also noted that there was no indication of any physical disorder on the part of the plaintiff.

Dr. William H. Clark, a clinical psychologist at the Institute of Mental Health Center, Martinsburg, West Virginia, testified for the plaintiff. He related that he saw the plaintiff professionally the first time on September 12, 1973 and that he had seen her twice a month since; and that during three of those sessions the plaintiff's son was with her. He testified that her behavior was normal; that she was of normal intelligence; and that in his opinion she was physically, mentally and emotionally able to take care of her child. His comments concerning her relationship with her child were most favorable.

No testimony was offered by the defendant to dispute the testimony offered by these doctors; nor was there any offer of testimony designed to show that the plaintiff was in any manner physically or morally unfit to have custody of her child.

The remaining testimony adduced at the final hearing consisted of witnesses for the plaintiff who related that she would be an ideal and fit mother for the child and witnesses for the defendant who related that the plaintiff had fits of temper, was unstable and would not be a good mother. Interestingly, the witnesses for the plaintiff, other than herself, were her aunt, her mother and a close friend; for the defendant, he, his sister and his mother and father appeared. The behavior pattern of the plaintiff related by the latter witnesses concerned a period of time at least nine months prior to the hearing.

At the conclusion of the hearing the court awarded a divorce to the plaintiff on the ground of cruelty but granted custody of their child to the defendant. In its holding the court did not rule on the physical and mental ability of the plaintiff to have custody of the child, but, citing Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968), held that the plaintiff had not met the burden of showing that a change of custody was in the best interests of the child. Contending that the court's decision and order were contrary to the law and evidence, the plaintiff prosecutes this appeal.

Presented for resolution on this appeal is the propriety of the trial judge's action in awarding the custody of the child to the father. As noted above, the court treated this as a change of custody case and applied the law set forth in Holstein v. Holstein, supra. In that case the mother of the child had been awarded a divorce and the custody of her two minor children. Subsequently, by reason of her own indiscretions, the custody of said children was taken from her and was placed with her former husband, their father. The case involved her attempt to regain custody of the children.

Holstein was purely a change of custody case wherein this Court held that the mother would not be permitted to regain custody unless she could show that the proposed change of custody would materially promote the moral and physical welfare of the children. In the case at bar the custody of the child, as between the parents, is being determined for the first time. It is the position of the appellee father that because the child has been with him by reason of the award of temporary custody to his mother, any award of custody in this proceeding to his wife, the child's mother, would constitute a change of custody. Consequently, he says, it was incumbent upon the plaintiff to show that the change of custody would benefit the child.

While we agree that the consideration of the child's welfare is of urgent consideration in determining a child's custody, we do not agree with the defendant's reasoning or conclusion wherein he asserts that this is a change of...