Marcum v. Marcum

Decision Date11 July 1990
Docket NumberNo. 19253,19253
Citation395 S.E.2d 509,183 W.Va. 265
PartiesStephen G. MARCUM v. Vicki L. MARCUM.
CourtWest Virginia Supreme Court

Syllabus by the Court

"Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).' Syllabus Point 2, Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d785 (1987). ' Syl. p. 2, Whittaker v. Whittaker, 180 W.Va. 57, 357375 S.E.2d 421 (1988).

Barbara A. James, Huntington, for VickiL. Marcum.

Huntington, for Stephen G. Marcum.

PER CURIAM:

This is an appeal by Vicki L. Marcum from a custody ruling of the Circuit Court of Cabell County in a divorce proceeding. By that ruling, the trial court refused to grant the appellant custody of her two and one-half year old daughter. On appeal, the appellant claims that there was evidence showing that she had been the primary caretaker of the child and that, in view of the evidence, the trial court erred in failing to award her custody of the child. After reviewing the record, this Court disagrees and affirms the judgment of the Circuit Court of Cabell County.

The appellant and Stephen G. Marcum were married on August 11, 1984. One child was born of the marriage in 1986.

In May, 1988, the parties separated and subsequently entered into a written separation agreement. At the time of entering into the agreement, the appellant was not represented by an attorney. Under the terms of the agreement, the appellant agreed to surrender to her husband custody of the parties' infant daughter, but reserved certain visitation rights.

On June 21, 1988, the appellant's husband instituted an action for divorce in the Circuit Court of Cabell County. In his complaint, he sought, in addition to a divorce from the appellant, temporary and permanent custody of their thirty-month-old infant daughter, and ratification and confirmation of the parties' written agreement. A hearing was scheduled for August 3, 1988, but postponed so that the appellant could obtain an attorney. Subsequently, in September, 1988, after both parties had obtained representation, a hearing was held before a family law master. Following the hearing, on September 27, 1988, the master issued recommendations, which included the recommendation that the custody of the parties' infant daughter be awarded to the appellant's husband. In making that recommendation, the family law master found that prior to separation, neither party had been the "clear cut" primary caretaker of the parties' infant child. The master further noted that the appellant had been involved with another man and that her conduct was:

... contrary to the moral fiber of our society and such an influence cannot promote the welfare of this child in any fashion as responsible adult citizens. Surely, this conduct could have waited from June until September. Four months is not too long to wait without moving a new daddy in without the benefit of clergy. I am concerned that members of her family don't see what is wrong with that. Her conduct with Keith Wallace has been open and notorious.

The appellant took exception to the family law master's findings, and the question of custody and the remaining questions in the case were referred to the Circuit Court of Cabell County. The circuit court reviewed the findings of fact and the record in the case and sustained the findings of fact and recommendations of the family law master, and by order dated January 19 1989, entered a final divorce decree which awarded the appellant's husband custody of the child. 1

In the present proceeding, the appellant claims that the trial court erred in granting her former husband custody where there were sufficient facts to show that she had been the primary caretaker of the child and where she was not determined unfit to care for the child.

In the course of the proceedings, the evidence relating to who had been the primary caretaker of the child was somewhat conflicting. The appellant testified that during marriage she would pick up her daughter from daycare and make dinner for the family. She then would bathe the child, although her husband also on occasion bathed the child. She testified that she read bedtime stories to the child and rocked her to sleep. She also testified that she had taken her daughter to all pediatric visits and stayed home with her after such visits. On one occasion her husband had gone with the appellant and their child to see a specialist. This visit led to a hospitalization, where the appellant stayed with the child after surgery and her husband returned to work. The appellant testified that she had potty trained the child, disciplined the child, and changed diapers on most occasions, although her former husband also on occasion changed diapers. She testified that she bought the child's clothing, did the laundry, and cleaned the house. There were witnesses who corroborated her testimony.

On the other hand, the appellant's husband testified that both parties would attend to the child in the middle of the night, that both went to the store, that both changed diapers, that both took care of the child after her hospitalization, that both put the child to bed, and that both had taken care of her since they were both working. The appellant's husband indicated that he took care of the child during the evening, gave her baths and got her ready for bed. He also testified that he took her to the baby sitter every morning. His witnesses corroborated his testimony that he had taken care of the child during the marriage.

In addition to the evidence relating to who was the primary caretaker, the appellant's husband introduced evidence suggesting that it would be in the child's best interest for the court to place custody in him. That evidence indicated that the appellant was dating an individual named Keith Wallace, who, on occasion, spent the night in her home and who had been with the appellant's child. The evidence suggested that Mr. Wallace was an individual of violent propensities who had been arrested on at least six occasions prior to the hearing. Two of the arrests were for assaults, one of which involved a stabbing. Another arrest was for "hit and run" and grew out of a drag race that Mr. Wallace engaged in on a public highway. Still another arrest was on a drug-related charge.

Further evidence in the case indicated that the appellant, at an earlier hearing, had expressed a disinterest in having custody...

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3 cases
  • Marilyn H. v. Roger Lee H.
    • United States
    • West Virginia Supreme Court
    • 21 Febrero 1995
    ...Sellitti, 192 W.Va. 546, 453 S.E.2d 380 (1994); Moses v. Moses, 187 W.Va. 755, 758, 421 S.E.2d 506, 509 (1992); syl. Marcum v. Marcum, 183 W.Va. 265, 395 S.E.2d 509 (1990). With regard to custody issues, this Court held in syllabus point 2 of Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1......
  • Moses v. Moses, 20323
    • United States
    • West Virginia Supreme Court
    • 22 Julio 1992
    ...on such questions will not be disturbed on appeal unless it clearly appears that such discretion has been abused. Marcum v. Marcum, 183 W.Va. 265, 395 S.E.2d 509 (1990); Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990); Goddard v. Goddard, 176 W.Va. 537, 346 S.E.2d 55 (1986); Stone v. S......
  • State v. Pickens, 19193
    • United States
    • West Virginia Supreme Court
    • 11 Julio 1990

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