Lemley v. Barr

Citation176 W.Va. 378,343 S.E.2d 101
Decision Date11 March 1986
Docket NumberNo. 16764,16764
CourtSupreme Court of West Virginia
PartiesTammy LEMLEY v. Gene BARR et al.

Syllabus by the Court

1. "Under article IV, § 1, of the Constitution of the United States, a valid judgment of a court of another state is entitled to full faith and credit in the courts of this state." Syl. Pt. 1, State ex rel. Lynn v. Eddy, 152 W.Va. 345, 163 S.E.2d 472 (1968).

2. " 'Full faith and credit must be given to the judgment or decree of a sister-state if it is not successfully attacked on jurisdictional grounds.' Point IV, Syllabus, Brady v. Brady, 151 W.Va. 900, 158 S.E.2d 359 (1967)." Syl. Pt. 2, State ex rel. Lynn v. Eddy, 152 W.Va. 345, 163 S.E.2d 472 (1968).

3. "By virtue of the full faith and credit clause of the Constitution of the United States, a judgment of a court of another state has the same force and effect in this state as it has in the state in which it was pronounced." Syl. Pt. 3, State ex rel. Lynn v. Eddy, 152 W.Va. 345, 163 S.E.2d 472 (1968).

4. " 'If the court, which rendered the judgment, was a court of general jurisdiction, the presumption is it had jurisdiction of the particular case, and to render the judgment void, this presumption must be overcome by proof. Syl. Pt. 3, Gilchrist v. O. & O.L. Co., 21 W.Va. 115 (1882)." Syl. Pt. 2, Fortner v. Fortner, 168 W.Va. 70, 282 S.E.2d 48 (1981).

5. "At an appearance in a suit or action for any purpose other than to question the jurisdiction of the court, or to set up a lack of process, or defective service is a general appearance." Syl. Pt. 1, Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944).

6. The writ of habeas corpus may be invoked to settle disputes which involve the custody of infant children. When used for that purpose the writ is of an equitable nature and the proceeding resembles an equitable proceeding in rem in which the res is the child. In a proceeding in habeas corpus involving the right to the custody of an infant the vital and controlling question is the welfare of the child and its determination rests in the sound discretion of the court. The law does not recognize any absolute right in any person or claimant to the custody of a child.

Deana L. Cooper, Burd & Cooper, Chesapeake, Ohio, for appellant.

Herbert H. Henderson, Henderson & Henderson, Huntington, W.Va., for appellees.

NEELY, Justice:

On 30 January 1981 Tammy L. Lemley and Bobby Lee Nash, Sr., gave birth to Bobby Lee Nash, Jr. in Lawrence County, Ohio, the place of their residence. These two parents were without benefit of marriage, education, or real means of support. Mr. Nash, the natural father, wanted to give the child up for adoption, and encouraged Tammy Lemley to do so. Accordingly, they contacted J. Stewart Kaiser and John E. Hall, attorneys in Chesapeake, Ohio, concerning the possible placement of the child.

On 5 May 1981, four days before Tammy Lemley turned eighteen, Tammy Lemley and Bobby Lee Nash went to Mr. Kaiser's and Mr. Hall's office to relinquish the child and execute the necessary papers for adoption. Tammy Lemley became upset, refused to sign the papers and left with the child. The next day the young couple returned to the law offices, executed the papers, and relinquished the child to Mr. Kaiser and Mr. Hall. Later that day, Mr. Hall delivered the child to Gene and Anna Barr at their house in Huntington, West Virginia.

On 11 May 1981, two days after Tammy Lemley reached majority, Mr. Kaiser and Mr. Hall informed Miss Lemley that she must meet with them again to sign more papers regarding the adoption. At Mr. Kaiser's direction the young couple met Mr. Hall in the parking lot of the Omelet Shop in Huntington, West Virginia where Tammy signed the papers in return for $400.00. That same day, Tammy Lemley's parents went to the law offices of Kaiser and Hall to demand the return of the child. The parents explained to Mr. Kaiser that Tammy was a minor at the time of the transaction. Mr. Kaiser told them that it was too late to do anything and that he could offer them no help. At no time did Mr. Kaiser explain to Tammy Lemley, Bobby Lee Nash, Sr., or Tammy's parents that under Ohio law an Ohio Probate Court judge had to witness and approve a minor's consent. 1

On 18 May 1981, Tammy Lemley and Bobby Lee Nash, Sr. returned to Mr. Kaiser's office to seek the return of the child. Again Mr. Kaiser refused to assist them. Furthermore, Mr. Kaiser refused to divulge the identity of the couple to whom he had transferred the child. In June, 1981 Miss Lemley and her parents instituted a habeas corpus action in Ohio against Mr. Kaiser, Mr. Hall and the unknown custodian of the child asking for the child's return. On 24 September 1981, the Court of Common Pleas, Lawrence County, Ohio, Probate and Juvenile Division, held that the placement had been illegal and improper under Ohio Rev.Code Ann. 5103.16 [Page 1981] because the adopting parents had not filed the requisite papers in the Probate Court. The court found that Mr. Kaiser and Mr. Hall had obtained Tammy's consent through duress, that she had no understanding of her position at the time she signed the adoption papers and, therefore, her consent was invalid. The Ohio court also held that attorneys Kaiser and Hall must divulge the name of the child's custodians.

On 13 August 1982 the Ohio Court of Appeals unanimously affirmed the Court of Common Pleas' judgment. Finally, on 24 August 1983, two years and two months after the Lemleys first brought their petition, the Ohio Supreme Court affirmed the trial court's judgment and the names of the child's custodians, Gene and Anna Barr, were revealed.

The Barrs knew about the Ohio habeas corpus proceeding through their discussions with Mr. Kaiser and through news reports both on television and in print. They discussed whether to appear physically in the Ohio proceedings, whether they should comply with the judgment of the Ohio trial court, and whether they should divulge their identities. The Barrs knowingly and intentionally refused to reveal their names, and directed Mr. Kaiser and Mr. Hall to exercise the attorney-client privilege on their behalf. Finally, despite the Barr's knowledge of the ongoing Ohio proceedings, they filed for adoption in front of Judge D.B. Daugherty of the Circuit Court of Cabell County, West Virginia on 6 November 1981. As the Ohio Supreme Court noted:

"We are confronted with a factual milieu which forcefully suggests and overwhelmingly implies that appellants were active participants in the private, independent and surreptitious placement for adoption of the minor child without the slightest regard for and in complete contravention of the applicable statutory guidelines for such independent placements."

Lemley v. Kaiser, 6 O.B.R. 324, 6 Ohio St.3d 258, 452 N.E.2d 1304, 1306 (1983). The Barrs attempted legally to avoid the jurisdiction of the Ohio courts.

When the identity of the Barrs was finally disclosed to Miss Lemley and her parents, they brought a habeas corpus action in the Circuit Court of Cabell County, West Virginia to compel the Barrs to return the child in accordance with the Ohio judgment. The trial court, however, declined to give full faith and credit to the Ohio judgment on the basis that the Barrs were never parties to the Ohio suit, and ruled that the 6 November 1981 West Virginia adoption proceeding, which the Barrs had initiated during the pendency of the Ohio action, was proper. The Lemleys then appealed that ruling to this court and asked us to uphold the judgment of our Ohio brethren and order the Circuit Court of Cabell County to give that judgment full faith and credit.

On 13 November 1985 this Court rendered its initial decision in the case now before us and ordered that the Circuit Court of Cabell County grant full faith and credit to the Ohio judgment. The issue that was briefed and argued during our first hearing, and the issue that was decided by the court's initial opinion, concerned only the question of whether West Virginia must give full faith and credit to the Ohio court judgment in determining the validity of the West Virginia adoption. Nonetheless, the judges of this Court were concerned at the time with the welfare of the child, now known as Ryan Barr, and we so indicated in the penultimate paragraph of our original opinion. That paragraph said:

Accordingly, the judgment of the Circuit Court of Cabell County is reversed and the case is remanded with directions to the court to formulate an orderly transfer of custody from the Barrs to the Lemleys. Although the Lemleys have prevailed on all legal issues, it must be remembered that we are not ordering the transfer of a piece of property, but rather with a feeling, vulnerable, and sorely put upon little human being. If the circuit court finds that continuing emotional support from the Barrs, the only family this child has ever known, is important for the welfare of the child, the court may order reasonable visitation and otherwise use its sound discretion to reduce the trauma that will inevitably follow from our decision.

On 12 December 1985, Mr. and Mrs. Barr filed a petition for rehearing in this Court. In Section III of their petition for rehearing they advised this Court that we had not heard arguments about or adequately considered the question of the best interest of the child. In support of their petition for rehearing they cited Syl. Pt. 3, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948) where the Court held:

In a proceeding involving the custody of an infant the right of a parent to the custody of his child, being founded in nature and wisdom and declared by statute, will be respected unless transferred or abandoned; the Court is in no case bound to deliver the child into the custody of any claimant and may permit it to remain in such custody as its welfare at the time appears to require.

Included in the opinion in Lipscomb v. Joplin was the...

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  • Clausen, In re
    • United States
    • Michigan Supreme Court
    • July 8, 1993
    ...state did not, before making its custody determination, consider the best interests of the child. The other case is Lemley v. Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986). The West Virginia Supreme Court, cognizant of the UCCJA, 18 concluded that there must be a best interests hearing before ......
  • Adoption of Haley A.
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    ...the otherwise secure natural rights of a parent," namely the child's biological father). But see Syl. pt. 6, in part, Lemley v. Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986) ("The law does not recognize any absolute right in any person or claimant to the custody of a child."); Syl. pt. 3, in p......
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