Hatfield v. Hatfield, 15566

• Citation: 171 W.Va. 463,300 S.E.2d 104
• Decision Date: 27 January 1983
• Docket Number: No. 15566,15566
• Court: West Virginia Supreme Court
• Parties: Lynn McKee HATFIELD v. Jenny Lou Pope HATFIELD (Cole)

Page 104

300 S.E.2d 104

171 W.Va. 463

Lynn McKee HATFIELD v. Jenny Lou Pope HATFIELD (Cole)

No. 15566.

Supreme Court of Appeals of West Virginia.

Jan. 27, 1983.

Syllabus by the Court

"A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975), quoting, syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969).

Leo Catsonis, Charleston, for appellant.

H. Truman Chafin, Williamson, for appellee.

PER CURIAM:

Jenny Lou Pope Hatfield Cole appeals from the November 17, 1981 order of the Mingo County Circuit Court, which modified her divorce decree by granting custody of her minor child to her mother. Finding that the trial court improperly awarded custody to the grandmother instead of the natural father, we reverse and remand the case to the circuit court.

Appellant and the appellee, Lynn McKee Hatfield, were divorced by order entered July 2, 1979. The divorce decree granted appellant custody of their son, Jared, who was then four years old, and ordered the appellee to pay $200 per month child support. On October 5, 1981, the appellee filed a petition requesting that the custody of Jared be changed to him, and that he be released from further payment of child support. The petition alleged, inter alia:

"5. That defendant-respondent does not maintain a suitable and proper home for the infant child of the parties hereto, and, in fact, said infant child is residing with his maternal grandmother and has done so since the entry of the aforesaid divorce decree; that defendant-respondent has remarried and no longer provides the care and nourishment needed by said infant child; that the best interest of said infant child is not being promoted by defendant-respondent.

"6. That petitioner is in a better position to care for said infant child; that said infant child is cared for during the time that petitioner is at work by his maternal grandmother and said maternal grandmother will continue to care for said infant child during the time that petitioner is at work.

"7. Pursuant to 48-2-15 of the West Virginia Code, as amended, your petitioner states that altered circumstances have occurred and taken place since the rendition of the original divorce decree which now render it necessary that this court change the custody of said infant child by placing him in the custody of your petitioner herein."

A hearing was held on November 12, 1981. The testimony showed that after the divorce, the appellant and her young son had gone to live with her mother, Mrs. Nell Pope. When the appellant moved out some three months later to seek work, she left Jared with Mrs. Pope, who continued to care for him for two and a half years. Appellant worked at a number of jobs, in Williamson and later Huntington, but was unable to keep her son with her. She visited him in her mother's home two to four times a month until the last year, when her visits became more infrequent.

The appellee natural father lives about five miles from Mrs. Pope. He visited with Jared every day, and kept him on weekends without any objection from the appellant. He helped with his son's care, bought him clothes, took care of his medical needs, helped him with homework, and took him places. Appellee worked as a mine foreman, making $3,600 per month; from this he paid appellant $150 alimony and $200 child support monthly. Appellee said that he wanted custody of Jared, but admitted that he wanted Mrs. Pope actually to care for the boy, in much the same manner as she had been doing previously. Appellee has not remarried.

The evidence showed that the appellee has a good relationship with the appellant's family, and that they supported him in this action. Mrs. Pope and her two sons, the appellant's brothers, testified that the appellant had never taken responsibility for Jared, and that the child would be better off in the custody of his father, if Mrs. Pope could continue to care for him. Testimony showed that none of the child support checks went towards Jared's care; they were used to make payments on appellant's new car. Mrs. Pope stated that appellant was welcome to stay in her home, rent-free, and that there was no financial reason for her to move out.

After the appellant remarried in May of 1981, the appellee began sending the child support checks to Mrs. Pope. The appellant objected, but Mrs. Pope refused to give the checks to her. When the appellant tried to take her son with her in September, Mrs. Pope resisted. Appellant regained custody of her son in October, 1981 and instituted habeas corpus proceedings which resulted in an award of custody to her, until further hearing. The appellee, Mrs. Pope, and one of the appellant's brothers testified they believed the only reason appellant sought to regain custody of Jared was to get the support checks.

On November 17, 1981, the judge announced his decision to give custody of the child to his maternal grandmother, Mrs. Pope. In considering the question of whether the appellant was fit, the judge noted that she had left her child with his grandmother two and a half years ago. The judge held that by leaving the boy with Mrs. Pope, the appellant delegated to her mother the position of standing in loco parentis to the child, and as such Mrs. Pope was entitled to be on equal footing with the parents in determining to whom custody is to be awarded.

Although the judge did not specifically state that either of the parents was unfit, he did find that neither of them had been the actual custodian or primary caretaker of the child, but...