Judith R. v. Hey

Decision Date26 July 1990
Docket NumberNo. 19212,19212
CourtWest Virginia Supreme Court
PartiesJUDITH R. v. Honorable John HEY, Judge of the Circuit Court of Kanawha County.

Opinion Concurring and Dissenting in Part by Justice Brotherton

May 23, 1991.

Syllabus by the Court

1. "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, 161 W.Va. 45, 239 S.E.2d 669 (1977).

2. "Acts of sexual misconduct by a [primary caretaker], albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the [caretaker] for child custody unless [his or] her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that [his or] her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a [primary caretaker] with such a defective character." Syl. Pt. 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978) as modified by Garska v. McCoy, 167 W.Va. 59, 70, 278 S.E.2d 357, 363 (1981).

3. "Where one parent has been awarded the custody of minor children by the court and that parent either remarries or undertakes a relationship with another adult who is either a permanent resident or regular overnight visitor in the home, the marriage or existence of such extramarital relationship constitutes a sufficient change of circumstances to warrant a reexamination of child placement; however, neither remarriage nor an extramarital relationship per se raises any presumption against continued custody in the parent originally awarded such custody." Syl. Pt. 3, S.H. v. R.L.H., 169 W.Va. 550, 289 S.E.2d 186 (1982).

4. "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." Syl. Pt. 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975).

5. "A child support order may be modified only upon a substantial change of circumstances ... and upon a showing that the benefit of the child requires such modification. W.Va.Code § 48-2-15(e) (1986)." Syl. Pt. 1, in part, Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785 (1987).

6. Although a judge shares a community of interest with a party in a proceeding before him in defending his jurisdiction and authority when the other party seeks to limit such authority in a prohibition action, that community of interest is strictly limited to the issue of whether the judge exceeded his legitimate powers in making the ruling of which the party complains. A judge who demonstrates bias and prejudice against the other party on the underlying issues will be precluded from presiding over the case upon remand.

Maureen Conley, Legal Aid Soc. of Charleston, Charleston, for Judith R.

Larry Skeen, Ripley, for Honorable John Hey and Rodney R.

WORKMAN, Justice:

In this petition for a writ of prohibition, petitioner Judith R. 1 seeks to prohibit enforcement of an order entered by the Honorable John Hey, Circuit Judge of Kanawha County, on August 23, 1989, reflecting the results of a hearing held July 27, 1989.

In that order, Judge Hey directed that petitioner had thirty days from the date of the hearing either to marry the man with whom she was cohabitating or to move out and establish separate living arrangements for her and her daughter. The court further ordered that if neither alternative was met within such time period, custody of the parties' fourteen-year-old daughter, Melissa, would be granted to the father, Rodney R., subject to reasonable visitation rights in the mother. The court further ordered that "by reason of plaintiff's (Mrs. R.'s) conduct," the defendant (Mr. R.) was not responsible for alimony or child support payments for such thirty-day period. The court set aside the family law master's recommendation that a change in petitioner's alimony was not warranted, once again based on "plaintiff's conduct," and remanded the matter back to the family law master with instructions that he hear further evidence and reconsider his recommendations. We grant petitioner's request for a writ of prohibition and remand this case for reinstatement of child support and alimony. We further direct that upon remand the court administrator of the Thirteenth Judicial Circuit assign this matter to another judge in the circuit.

Judith R. and Rodney R. were divorced by a final divorce decree dated January 27, 1988. In such final decree, the petitioner was granted custody of the two children, Melissa R. and Christopher, who has now reached the age of majority and is not involved in this proceeding. In September 1988, Melissa, who was then thirteen years old, decided she wanted to live with her father. Rodney R. subsequently filed a petition to modify in order to obtain custody of Melissa and modify his child support obligations.

In January, 1989, petitioner began living with Robert C. and his thirteen-year-old daughter in St. Albans. In April, 1989, Melissa began experiencing emotional problems and returned to live with her mother at Robert C.'s residence. A hearing before Judge Hey was held on April 25, 1989. At this hearing, Judge Hey ordered that a change in custody was warranted and, pursuant to agreement of the parties, the custody of Melissa was transferred from Rodney R. back to Judith R. This order was entered on August 15, 1989.

CHILD CUSTODY

In an ideal world, this case would not be before us. Rodney and Judith R. would not have decided to divorce and Melissa would not be living with only one parent. They would have lived happily ever after and provided their children with a stable, loving home with two parents present. But as we are painfully aware, the world is not a perfect place. Divorce is a widespread phenomenon and custody of children becomes at times a major battleground with deep emotional wounds to the children the frequent result. Similarly, the cohabitation of a single custodial parent with another person without benefit of marriage certainly does not create the ideal environment for children, and we have previously held that such cohabitation does constitute a sufficient change in circumstances to warrant re-examination of custody. In Syl. Pt. 3 of S.H. v. R.L.H., 169 W.Va. 550, 289 S.E.2d 186 (1982) this Court held that:

Where one parent has been awarded the custody of minor children by the court and that parent either remarries or undertakes a relationship with another adult who is either a permanent resident or regular overnight visitor in the home, the marriage or existence of such extramarital relationship constitutes a sufficient In making any child custody decision, however, the chief and overriding concern must be the best interest of the child. We have previously held that "[t]o 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, 161 W.Va. 45, 239 S.E.2d 669 (1977).

[185 W.Va. 120] change of circumstances to warrant a reexamination of child placement; however, neither remarriage nor an extramarital relationship per se raises any presumption against continued custody in the parent originally awarded such custody.

We have also held in J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978) that:

Acts of sexual misconduct by a [primary caretaker], albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the [caretaker] for child custody unless [his or] her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that [his or] her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a [primary caretaker] with such a defective character. (emphasis added)

Id. at Syl. Pt. 4, as modified by Garska v. McCoy, 167 W.Va. 59, 70, 278 S.E.2d 357, 363 (1981) (emphasis added). The same standard is applicable in a post-divorce context. A careful review of the whole record in this case is void of any evidence that Judith R. is an unfit parent or that her conduct has created any deleterious effect on the child. No findings of fact warranting a finding of unfitness were set forth by Judge Hey in the July 27 order. 2 Such order was grounded merely on the premise that the court would not "tolerate" Judith R.'s conduct. Although the circuit judge contends he is "following the law," he seems totally incognizant of any of these prior cases.

Furthermore, Melissa R. is over the age of fourteen years. At this age, the legislature of this state has granted her the right to nominate her own guardian. While W.Va.Code § 44-10-4 (1982) applies to circumstances where a guardian is to be appointed in lieu of a natural parent, we have previously found the statute to be "evidence of the legislature's conclusion concerning the age at which an adolescent should be given some substantial say in his own affairs." S.H. v. R.L.H., 169 W.Va. 550, 555, 289 S.E.2d 186, 189 (1982). "The use of the word 'nominate' in Code, 44-10-4 [1982] means that unless the court finds the nominee unfit to serve as guardian, the nominee should be confirmed by the court." Id. After having lived with each of her parents separately, Melissa R. chose to live with her mother. There being no evidence in the record of the unfitness of Judith R. as a parent, we find Melissa's request a relevant, if not dispositive factor in our decision.

Justice Neely further elaborated on this subject in S.H. v. R.L.H., and we find the rationale underlying the prior decision to be...

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