Ledsome v. Ledsome

• Decision Date: 11 March 1983
• Docket Number: No. 15608,15608
• Court: West Virginia Supreme Court
• Parties: Cecil A. LEDSOME v. Barbara E. LEDSOME.

Page 475

301 S.E.2d 475

171 W.Va. 602

Cecil A. LEDSOME v. Barbara E. LEDSOME.

No. 15608.

Supreme Court of Appeals of West Virginia.

March 11, 1983.

Syllabus by the Court

1. A court, in defining a parent's right to visitation, is charged with giving paramount consideration to the welfare of the child involved.

2. The right of a parent, not in custody of his or her child, to visit that child may not ordinarily be made dependent upon the payment of child support by that parent. However, when a court finds that the parent's refusal to make child support payments is contumacious, or willful or intentional, that parent's visitation rights may be reduced or denied, if the welfare of the child so requires.

Keith H. Gordon, Fairmont, for appellant.

No appearance for appellee.

McHUGH, Justice:

This action is before this Court upon the petition of the appellant, Cecil A. Ledsome, for an appeal from the final order of the Circuit Court of Marion County, West Virginia. Pursuant to that order, entered on May 19, 1982, the circuit court concluded that as a result of the failure of the appellant subsequent to his divorce from the appellee, Barbara E. Ledsome, to provide adequate child support for his three minor children, the appellant was entitled to no visitation privileges with those children. This Court has before it the petition for appeal, all matters of record and the brief of the appellant. The appellee has not appeared in this appeal.

By order entered on June 16, 1981, the appellant obtained a divorce from the appellee in the Circuit Court of Marion County. The appellee failed to answer or appear in that proceeding. Pursuant to the June 16, 1981, order the appellee was granted custody of the parties' three minor children subject to the visitation privileges of the appellant. Furthermore, the appellant's obligation to pay child support was made subject to the appellant's ability to secure employment. Paragraphs two and three of the June 16, 1981, order provided as follows:

2. The Plaintiff is granted reasonable visitation privileges with the three minor children to wit: Misty Dawn Ledsome, Eric Eugene Ledsome and Heather Carroll Ledsome. Said visitation privileges shall include but, not be limited to, alternating week-ends on the 1st and 3rd week-ends of each month to begin at 7:00 p.m. on Friday evening, the children shall be returned to their mother at 7:00 p.m. on Sunday evening. The defendant is granted care, custody and control of the children.

3. The Plaintiff, being currently unemployed, is not ordered to pay any specific amount of child support at this time. However, at such time as when the plaintiff obtains regular employment the defendant my [sic] petition the Court to modify this decree to take into account of [sic] change of circumstances of the parties.

The petition before this Court asserts that subsequent to the divorce the appellee refused to permit visitation of the children by the appellant. On June 29, 1981, the appellant instituted a contempt action in Marion County to enforce his visitation privileges.

A hearing upon the contempt action was held before the circuit court on May 17, 1982, and both the appellant and the appellee were present. ¹ The appellant testified that the appellee failed to permit his visitation privileges with the children and that he was unable to contribute to the support of those children.

The circuit court noted that the appellee was twenty years old and concluded that the appellant had not made a sufficient effort to support the three children. The circuit court, pursuant to its May 19, 1982, order, dismissed the appellant's contempt action.

By order entered on November 23, 1982, this Court granted the appellant temporary relief concerning the visitation of his children pending final determination of this appeal. As indicated in the petition before this Court, the appellant seeks enforcement of his visitation privileges without regard to the appellant's ability to pay child support.

The statutory rights and duties of parties with respect to actions for divorce, annulment or separate maintenance are found in chapter 48, article 2, of the West Virginia Code. Very little is stated in that article concerning a parent's right to visit his or her child subsequent to a divorce.

W.Va.Code, 48-2-15 [1980], provides, in part, as follows:

Upon ordering a divorce, the court may make such further order as it shall deem expedient, concerning the maintenance of the parties, or either of them; and upon ordering the annulment of a marriage, or a divorce, the court may make such further order as it shall deem expedient, concerning the care, custody, education and maintenance of the minor children, and may determine with which of the parents or other proper person or persons the children or any of them, may remain....

....

Upon ordering the annulment of a marriage or a divorce, the court may, in its discretion, make such further order as it shall deem expedient, concerning the grant of reasonable visitation rights to any grandparent of the minor children upon application, if the grandparent or grandparents are related to such minor child through a party to such action whose whereabouts are unknown or through a party who did not answer or otherwise appear and defend the cause of action in which such divorce or annulment is granted, and the court may issue any necessary order to enforce such order or decree.

Pursuant to W.Va.Code, 48-2-4 [1981], in the case of a divorce upon the ground of irreconcilable differences: "The court may make orders for or approve, modify or reject any agreement between the parties pertaining to just and equitable ... visitation rights."

In St. Clair v. St. Clair, 166 W.Va. 173, 273 S.E.2d 352 (1980) (per curiam), this Court stated as follows: "And a court, in defining a parent's right to visitation is charged with giving paramount consideration to the welfare of the child involved." 166 W.Va. at 177, 273 S.E.2d at 355. See also J.M.S. v. H.A., 161 W.Va. 433, 242 S.E.2d 696 (1978). ²

The issue before this Court is whether the visitation rights of the appellant may be denied as a result of his failure to provide child support, especially with regard to the fact that during the period in question no court order directed the appellant to provide child support. Our research reveals that visitation rights are dependent upon the welfare of the child and that, ordinarily, a father's visitation rights may not be denied merely for nonpayment of child support. ³

In Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964), the Supreme Court of Colorado held that a trial court may not punish a father, delinquent in his child support payments through no fault of his own, by denying the father visitation rights until he becomes current in his payments. In Block v. Block, 15 Wis.2d 291, 112 N.W.2d 923 (1961), cert. denied 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100, reh'g denied 368 U.S. 945, 82 S.Ct. 383, 7 L.Ed.2d 341 (1961), the Supreme Court of Wisconsin stated as follows:

The rights of visitation should not be denied a parent to punish him because of his failure to pay support money for the child. The paramount reason for visitation is the benefit to be derived by the child from associating with its parents and its welfare should not be jeopardized by an order conditioned upon payment of support money or alimony even though such order might prove effective as a collection device.

15 Wis.2d at 297, 112 N.W.2d at 927.

The Supreme Court of Washington in Gibford v. Gibford, 55 Wash.2d 760, 350 P.2d 158 (1960), stated as follows: "Visitation privileges cannot be conditioned upon the payment of support." 55 Wash.2d at 765, 350 P.2d at 161. See also Lunsford v. Waldrip, 6 Wash.App. 426, 493 P.2d 789 (1972), in which action the Court of Appeals of Washington stated as follows: "Withholding visitation for the sole reason that money is unpaid, due and owing is an improper exercise of judicial discretion." 493 P.2d at 792. In Commonwealth ex rel. Lotz v. Lotz, 188 Pa.Super. 241, 146 A.2d 362 (1958), aff'd 396 Pa. 287, 152 A.2d 663 (1959), the Superior Court of Pennsylvania stated that the "mere failure to support is not grounds for refusing visitation rights." 188 Pa.Super. at 244, 146 A.2d at 363. ⁴

The Supreme Court of Idaho in Wilson v. Wilson, 73 Idaho 326, 252 P.2d 197 (1953), stated as follows:

It is only under extraordinary circumstances that a parent should be denied the right of visitations, even though the parent is guilty of marital misconduct. Default in the payment of support money is not in itself sufficient reason to deprive the father of the right to see and visit his child.

73 Idaho at 328, 252 P.2d at 198.

In Wilson, supra, even though the father failed to consistently support the child, the court noted that nothing in the transcript indicated that visitation "would create a situation or influence in anywise detrimental to the child's welfare." 73 Idaho at 329, 252 P.2d at 198.

In Roshto v. Roshto, 214 La. 922, 39 So.2d 344 (1949), a husband sought judicial recognition of his visitation rights where he and his wife had separated and later divorced. Custody of their child had been awarded to the wife. In that action, the husband rendered little or no support to the child, and neither alimony nor support had been awarded to the wife by the separation and divorce judgments. In Roshto, the Supreme Court of Louisiana recognized the father's right of visitation, concluding that there was no proof in the record that visitation would be detrimental to the child. The court stated as follows:

A parent possesses certain natural rights with respect to his child whose custody is given to the other parent. One of these is the right to visit the child. This natural right of the parent should not be taken from him unless the evidence conclusively shows that his conduct is of such a nature that he has forfeited the right of access to his child.

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