Holstein v. Holstein

Decision Date12 March 1968
Docket NumberNo. 12685,12685
Citation160 S.E.2d 177,152 W.Va. 119
CourtWest Virginia Supreme Court
PartiesDolores HOLSTEIN v. Kenneth Ray HOLSTEIN.

Syllabus by the Court

1. 'In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.' Point 2, Syllabus, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302 (47 S.E.2d 221).

2. Where, upon being awarded a divorce, a mother acquires custody of her children, but by reason of her own indiscretions, loses such custody, she will not be permitted to regain that custody unless she can show that the proposed change of custody will materially promote the moral and physical welfare of the children.

3. 'The exercise of discretion by a trial court in awarding the custody of minor children will not be disturbed on appeal unless it clearly appears that such discretion has been abused.' Point 11, Syllabus, Smith v. Smith, 138 W.Va. 388 (76 S.E.2d 253).

4. Where a mother is seeking to regain the custody of her children it is incumbent upon her to show that a change of the existing custody would materially promote the welfare of the children, and where the evidence indicates clearly that she has failed to satisfy that requirement, the court should not disturb the existing custody of the children.

5. Where it is clearly established by the evidence that children of divorced parents enjoy a happy home life in the custody of their father, such custody will not be changed upon the petition of the mother unless she can show that the proposed change will result in material benefit to the children.

6. A change of custody should not be based only upon speculation that such change will be beneficial to the children. Cook & Hendricks, P. W. Hendricks, Jerry W. Cook, Madison, for appellant.

Donald E. Jarrell, Whitesville, for appellee.

CAPLAN, Judge.

This is an appeal from a judgment of the Circuit Court of Boone County in a proceeding wherein the plaintiff, Dolores Holstein, sought to obtain the custody of her two minor children. At the conclusion of the evidence the court granted the plaintiff's prayer and awarded her the custody of said children. It is from this judgment that the defendant prosecutes this appeal.

Dolores Holstein, upon her complaint, was awarded a divorce from the defendant, Kenneth Ray Holstein, by an order of the Circuit Court of Boone County dated March 20, 1964. The ground upon which she sought and obtained a divorce was cruelty. The divorce order settled certain property rights of the parties and awarded custody of the two minor children born of that marriage to the plaintiff. The defendant was ordered to pay the sum of one hundred dollars per month for the support of said children.

On July 21, 1964, Kenneth Ray Holstein, the defendant below, filed a petition in the aforesaid court seeking a change of custody of his children. In his petition he alleged, among other things, that his children, Robert Holstein, age nine years and Kathryn Renee Holstein, age three years, were residing in a trailer with their mother, Dolores, and a man not her husband; that said man had a living wife; and, that Dolores and this man were living together falsely pretending to be husband and wife. Mr. Holstein further alleged that he was willing and able to properly maintain, care for and educate his said minor children and prayed that custody of them be awarded to him. According to the certificate of counsel for the defendant, attached to the Notice of Motion for Hearing Upon Petition, the aforesaid petition and a notice of hearing were served on Dolores Holstein by mailing copies thereof to her at her two last known addresses and by mailing one to her counsel in Madison, West Virginia. Dolores Holstein made no appearance at the hearing.

On August 5, 1964, a decree of modification was entered by the Judge of the Circuit Court of Boone County which contained, among others, the following findings:

'1. That all the allegations contained in defendant's said petition are true.

2. That plaintiff has been living in a manner which is inconsistent with the best interests of the children from a moral standpoint; that she has been cohabiting with a man, not her husband at the residence of said children.

3. That the best interests of said children require that they be taken from the plaintiff and given to the defendant.'

The court then decreed that the defendant, Kenneth Ray Holstein, be awarded the sole care, custody and education of the two minor children born of the marriage which was dissolved by the aforesaid divorce. By this decree Dolores Holstein, the mother, was given visitation rights and according to the record she did visit her children as permitted by the decree.

This arrangement continued, Mr. Holstein having the custody of the children. By an order of said court entered on May 23, 1967, Dolores Holstein was permitted to file her petition praying for the entry of a decree changing the custody of her two infant children from her former husband to herself. In her petition she alleged, among other things, the change of custody of the children to her husband after the divorce and that 'since the change of custody of said children from your petitioner to the defendant, the circumstances of the parties hereto have materially changed.' She alleges that she is employed as a teacher, that she is a member of a church, attends the church regularly, is living a good Christian life and is fully capable of giving her children the care, supervision and affection necessary to their proper development. Her petition then sets out certain changes in the circumstances of her husband since their divorce which will be alluded to hereinafter by relating some of the evidence adduced during the hearing.

Both parties agree that the welfare of the children is the paramount and controlling factor in resolving this contest for the custody of their children. As cogently stated in State ex rel. Harmon v. Utterback, 144 W.Va. 419, 108 S.E.2d 521, '* * * in a contest involving the custody of an infant the welfare of the child is of paramount and controlling importance and is the polar star by which the discretion of the court will be guided.' See also Lucyk v. Brawner, 144 W.Va. 690, 110 S.E.2d 739; Stout v. Massie, 140 W.Va. 731, 88 S.E.2d 51; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253; Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901, 15 A.L.R.2d 424; Pukas v. Pukas, 129 W.Va. 765, 42 S.E.2d 11; Boos v. Boos, 93 W.Va. 727, 117 S.E. 616; 6 M.J., Divorce and Alimony, Section 58; Phelps, Divorce and Alimony in Virginia and West Virginia, 2nd Ed., Section 23--8; 39 Am.Jur., Parent and Child, Section 20.

As heretofore noted, the petition alleged, in support of her request for the custody of her children, that 'the circumstances of the parties hereto have materially changed.' Change in the circumstances of the parties alone is not enough. It must be shown that such change would materially promote the welfare of the children. Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901, 15 A.L.R.2d 424; State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221; Cunningham v. Barnes, 37 W.Va. 746, 17 S.E. 308. In the last cited case the petitioner willingly relinquished and transferred the custody of his child, upon the death of his wife, the child's mother, to the respondents, the maternal grandparents. Some years later the petitioner sought custody of his child. Refusing his prayer the Court said in Syllabus No. 3, 'When a parent has transferred to another the custody of his infant child by fair agreement, which has been acted on by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of custody will materially promote his child's welfare moral and physical.'

In the instant case the petitioner acquired custody of her children when she obtained a divorce from the respondent. However, by reason of certain indiscretions on her part, she had such custody taken from her. Now she asks that such custody be reinstated. As in the Cunningham case, it must be shown that the requested change of custody will materially promote the children's physical and moral welfare. The burden is on the petitioner to show that a change of the existing custody will be beneficial to the children. Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901, 15 A.L.R.2d 424. It is necessary, therefore, to examine the evidence to determine whether or not the petitioner has adequately borne that burden.

The uncontradicted evidence reveals that the Holstein children, Robert and Renee, have a comfortable and happy home in the custody of their father. This is not only uncontradicted but is reflected positively in the finding of the trial court. The learned judge said: '* * * the Court will commend Mr. Holstein for doing a good job and giving good care to the two children and from that point of view, I don't have any quarrel with Mr. Holstein at all. I think that all the evidence here is that his wife is a good woman and that they have a happy family life and are giving the children adequate care.'

Let us consider the present circumstances of these children as revealed by the evidence. Their father, the defendant in this proceeding, some time after his divorce from the plaintiff married Maisie Cook. His present wife had three children by her former husband and one child was born of this marriage. Together with Robert and Renee there are six children. The home in which this family lives consists of eight rooms, a sun room and basement. As related by several witnesses, there are four bedrooms and ample space for all.

The defendant, Kenneth Holstein, is a coal minor and earns from such employment a take home pay of from $116.00 to $140.00 a week. In addition to this, his wife receives approximately $344.00 a month from Social...

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    ...below took due notice of the child's preference in the decision to award custody to Mr. C. Our observations in Holstein v. Holstein, 152 W.Va. 119, 127, 160 S.E.2d 177, 183 (1968) are relevant to the disposition of this The court has continuing jurisdiction over the matter of the custody of......
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    ...of custody should not be based only upon speculation that such change will be beneficial to the children.” Syl. Pt. 6, Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968). 9. “ ‘In considering visitation issues, the courts must also be mindful of facilitating the right of the non-cus......
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    ...law which has been frequently stated by this Court in determining the question of the custody of an infant"); Holstein v. Holstein , 152 W.Va. 119, 122, 160 S.E.2d 177, 180 (1968) (citing pertinent West Virginia law as supporting parties’ agreement that "the welfare of the children is the p......
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