McAllister v. McAllister, 15027

• Decision Date: 24 March 1981
• Docket Number: No. 15027,15027
• Court: West Virginia Supreme Court
• Parties: Martha L. McALLISTER v. Philip E. McALLISTER, II.

Page 321

276 S.E.2d 321

166 W.Va. 569

Martha L. McALLISTER v. Philip E. McALLISTER, II.

No. 15027.

Supreme Court of Appeals of West Virginia.

March 24, 1981.

Syllabus by the Court

1. "A trial court, by statute, is given discretion as to the adjudication of ... custody of minor children ... and its decree in regard thereto will not be disturbed in the absence of a clear abuse of such discretion." Syl. pt. 4, Witt v. Witt, 141 W.Va. 43, 87 S.E.2d 524 (1955), in part.

2. "(I)t is not the reasons assigned upon which the (lower) court decided a question that is to be reviewed, but the action of the court itself; and the question always in the appellate court is, whether the judgment to be reviewed is correct." Syl. pt. 5, State ex rel. Dandy v. Thompson, 148 W.Va. 263, 134 S.E.2d 730 (1964), in part.

Askin & Burke and Steven M. Askin, Martinsburg, for appellant.

Rice, Hannis & Douglas and Richard L. Douglas, Martinsburg, for appellee.

PER CURIAM:

In this appeal from the Circuit Court of Jefferson County, the appellant, Martha McAllister, challenges a final judgment which awarded to her ex-husband, Philip E. McAllister, II, the appellee, custody of their two children.

By order entered on January 30, 1980, the appellee was awarded a divorce on the ground of irreconcilable differences. At the time of the divorce the parties' two sons were eight and nine years of age. Hearings on the issue of custody were held on March 3 and June 19, 1980. On July 25, 1980, the court entered an order awarding custody of the two children to the appellee. It is from that order that this appeal is taken.

The appellant contends that certain of the trial court's findings of fact are not supported by the evidence and that the judgment should be reversed for this reason. Our review of the record and the findings of fact clearly indicates that some findings are without evidentiary support and consist of nothing more than conjecture. Other findings are directly contrary to uncontradicted expert testimony. There are, however, findings of fact that are supported by the evidence.

While it is true that findings of a trial court that are clearly wrong or against the preponderance of the evidence may be grounds for reversal, Syl. pt. 4, Ball v. Ball, 154 W.Va. 739, 179 S.E.2d 221 (1971), quoting, Syl. pt. 5, Lieberman v. Lieberman, 142 W.Va. 716, 98 S.E.2d 275 (1957), this Court is required to view the entire record to determine if there are valid grounds to sustain the judgment. Even though the trial court may have made findings that are not supported by the evidence or may have assigned incorrect reasons for its judgment "(t)he question always in the appellate court is, whether the judgment to be reviewed is correct." Syl. pt. 5, State ex rel. Dandy v. Thompson, 148 W.Va. 263, 134 S.E.2d 730 (1964), in part.

Our review of this record leads us to conclude that the trial court reached the correct result. There is sufficient evidence to support findings of fact that properly lead to and support the conclusion that the welfare of the children is best served by an award of custody to the appellee. The record shows that the appellee, who is a microbiologist at the Leetown Fisheries Research Center, can offer a good home environment for the children both physically and emotionally. The record also discloses that he has in the past been the sole provider of parental care during periods when the appellant was hospitalized, and that he has...