Horton v. Horton, 14558

• Decision Date: 25 March 1980
• Docket Number: No. 14558,14558
• Citation: 264 S.E.2d 160,164 W.Va. 358
• Parties: Ann C. HORTON v. John Lee HORTON, Jr.
• Court: West Virginia Supreme Court

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.

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.

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 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 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 this assignment of error.

The appellant next contends the Circuit Court erred when it found him to be liable for child support during the time that he had physical custody of the children. He contends that since he had custody of the children and provided their support he should not be held liable for failure to pay child support payments during this period.

It is undisputed that the payments were not made. Nor is it disputed that appellant's gaining and retention of physical custody was done without the consent of the appellee and without the authorization of a court order. In these circumstances, we decline to hold that appellant may escape responsibility for court ordered support payments. To hold otherwise would enable one parent to seize physical custody of minor children from the parent who has been given lawful custody, and thereby assert the right to be relieved of support payments during the time that physical custody was obtained. Such a practice would open the door to the possibility of much abuse, and would encourage the non-custodial parent to act unilaterally to seize children under the pretext that the lawful custodial parent was unfit. Such a ruling would enable a non-custodial parent to in effect obtain a reduction in child support by seizing the children and then arguing he is not liable for support while they were in his custody. We have held that a Circuit Court lacks the power to cancel or alter accrued installments of child support. Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); W.Va. Code, 48-2-15. Accordingly, it was not error for the court to require the appellant to make the accrued payments as originally ordered.

The appellant next contends it was error for the trial court to deny his cross-petition for a change of custody. In adjudging...