Horton v. Horton, No. 14558

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM; NEELY
Citation264 S.E.2d 160,164 W.Va. 358
Decision Date25 March 1980
Docket NumberNo. 14558
PartiesAnn C. HORTON v. John Lee HORTON, Jr.

Page 160

264 S.E.2d 160
164 W.Va. 358
Ann C. HORTON
v.
John Lee HORTON, Jr.
No. 14558.
Supreme Court of Appeals of West Virginia.
March 25, 1980.

Page 161

Syllabus by the Court

1. If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal.

2. A circuit court lacks the power to alter or cancel accrued installments for child support.

3. "To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child." Syl. pt. 2, Cloud v. Cloud, W.Va., 239 S.E.2d 669 (1977).

4. "In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence." Syl. pt. 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945).

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

Steven M. Askin, Radosh & Askin, Martinsburg, for appellee.

[164 W.Va. 359] PER CURIAM:

This appeal from a final judgment of the Circuit Court of Berkeley County was docketed on June 21, 1979. A motion for leave to reverse was granted on July 12, 1979, and the matter came on for final argument on November 20, 1979.

The parties to this action were formerly husband and wife. In October 1977 they were divorced by order of the Circuit Court of Berkeley County. The final order affirmed a separation agreement entered into by the parties which awarded custody of the parties' two infant children to the wife, who is the appellee herein.

The wife retained custody until May 16, 1978, when the husband removed the children from her custody. On May 24, 1978, she filed a petition in the Circuit Court seeking to have the husband held in contempt for violating the custody provisions of the final order. The husband filed an answer and a cross-petition seeking to have custody permanently awarded to him. Several months passed without a hearing being held, and except for one twenty four hour period the husband retained custody. Finally, in January 1979, the wife filed a second petition and a hearing was held.

After hearing evidence, the Circuit Court found the husband was in violation of the court's previous order because of his removal of the children from the wife's custody, and because he was $3,200 in arrears in child support. The husband's cross-petition for a change of custody was denied.

The husband now appeals, contending the Circuit Court committed prejudicial error requiring reversal of the final judgment. We conclude the Circuit Court's judgment should be affirmed.

The appellant contends it was error for the Circuit Court to reject his offers of

Page 162

evidence relating to the behavior of the appellee prior to the parties' divorce.

When the appellee objected to the presentation of this evidence, the trial court sustained her objection. The [164 W.Va. 360] husband made no attempt to vouch the record as to what the tendered evidence would have shown.

If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal. Syl. pt. 5, Delmar Oil Company v. Bartlett, 62 W.Va. 700, 59 S.E. 634 (1907); Parkersburg and Marietta Sand Company v. Smith, 76 W.Va. 246, 85 S.E. 516 (1915). The appellant's failure to make a proper offer of proof prevents this Court from reviewing...

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35 practice notes
  • In re Stephen Tyler R., No. 30654.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2003
    ...award, a circuit court is without authority to modify or cancel accrued... child support installments."); Syl. pt. 2, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980) (per curiam) ("A circuit court lacks the power to alter or cancel accrued installments for child support."). See also ......
  • Torrence v. Kusminsky, Nos. 19864
    • United States
    • Supreme Court of West Virginia
    • July 29, 1991
    ...shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal." Syllabus Point 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 9. "A party cannot complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-ex......
  • State v. McIntosh, No. 26849.
    • United States
    • Supreme Court of West Virginia
    • July 12, 2000
    ...State witness regarding suspected prejudice against the defendant. The McClure Court relied upon syllabus point one of Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980), as follows, to conclude that defense counsel had failed to preserve the issue for appellate If a party offers eviden......
  • Donna W., In re
    • United States
    • Superior Court of Pennsylvania
    • February 10, 1984
    ...747, 430 P.2d 983, 983 (1967) (strong reliance on trial court's determination of what is in child's best interests); Horton v. Horton, 264 S.E.2d 160, 163 (W.Va.1980) (clear abuse of discretion); Heiting v. Heiting, 64 Wis.2d 110, 118-120, 218 N.W.2d 334, 339 (1974) (abuse of discretion/err......
  • Request a trial to view additional results
34 cases
  • In re Stephen Tyler R., No. 30654.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2003
    ...award, a circuit court is without authority to modify or cancel accrued... child support installments."); Syl. pt. 2, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980) (per curiam) ("A circuit court lacks the power to alter or cancel accrued installments for child support."). See also ......
  • Torrence v. Kusminsky, Nos. 19864
    • United States
    • Supreme Court of West Virginia
    • July 29, 1991
    ...shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal." Syllabus Point 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 9. "A party cannot complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-ex......
  • State v. McIntosh, No. 26849.
    • United States
    • Supreme Court of West Virginia
    • July 12, 2000
    ...State witness regarding suspected prejudice against the defendant. The McClure Court relied upon syllabus point one of Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980), as follows, to conclude that defense counsel had failed to preserve the issue for appellate If a party offers eviden......
  • Donna W., In re
    • United States
    • Superior Court of Pennsylvania
    • February 10, 1984
    ...747, 430 P.2d 983, 983 (1967) (strong reliance on trial court's determination of what is in child's best interests); Horton v. Horton, 264 S.E.2d 160, 163 (W.Va.1980) (clear abuse of discretion); Heiting v. Heiting, 64 Wis.2d 110, 118-120, 218 N.W.2d 334, 339 (1974) (abuse of discretion/err......
  • Request a trial to view additional results

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