Funkhouser v. Funkhouser, No. 13578

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation216 S.E.2d 570,158 W.Va. 964
PartiesBeverly Fay FUNKHOUSER v. Ronald Roscoe FUNKHOUSER.
Decision Date01 July 1975
Docket NumberNo. 13578

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

Page 571

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).

[158 W.Va. 965] 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 [158 W.Va. 966] 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

Page 572

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[158 W.Va. 967] 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...

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43 practice notes
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...application of the law and is clearly wrong, the ruling will be reversed on appeal." Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 [665 S.E.2d 303] 2......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • June 17, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 Lastly, we......
  • In re Clifford K., No. 31855.
    • United States
    • Supreme Court of West Virginia
    • August 8, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 Lastly, we a......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • June 17, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 Lastly, we......
  • Request a trial to view additional results
43 cases
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...application of the law and is clearly wrong, the ruling will be reversed on appeal." Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 [665 S.E.2d 303] 2......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • June 17, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 Lastly, we......
  • In re Clifford K., No. 31855.
    • United States
    • Supreme Court of West Virginia
    • August 8, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 Lastly, we a......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • June 17, 2005
    ...an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 Lastly, we......
  • Request a trial to view additional results

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