Michael D.C. v. Wanda L.C.

• Decision Date: 24 October 1997
• Docket Number: No. 23937,23937
• Citation: 201 W.Va. 381,497 S.E.2d 531
• Court: West Virginia Supreme Court
• Parties: MICHAEL D.C., Plaintiff Below, Appellee, v. WANDA L.C., Defendant Below, Appellant.

Page 531

497 S.E.2d 531

201 W.Va. 381

MICHAEL D.C., Plaintiff Below, Appellee, v. WANDA L.C., Defendant Below, Appellant.

No. 23937.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1997.

Decided Oct. 24, 1997.

[201 W.Va. 382] Syllabus by the Court

1. "In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).

2. "When adultery is relied upon as a ground for divorce, evidence which is sufficiently strong, clear and convincing to carry conviction of guilt to the judicial mind will warrant a decree of divorce on that ground." Syl. Pt. 3, Rohrbaugh v. Rohrbaugh, 136 W.Va. 708, 68 S.E.2d 361 (1951), overruled on another ground by, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978).

3. The legislature has articulated specific exceptions to granting a divorce on the grounds of adultery, even where there is a showing of illicit conduct. W.Va.Code § 48-2-14 (1996) prohibits granting a divorce on the basis of adultery if any of the following are presented and established as a defense: (1) the two spouses voluntarily cohabited after having knowledge of the adultery, (2) evidence of adultery is based solely upon the uncorroborated testimony of a prostitute or a participant in the affair, (3) the last adulterous act occurred three years before the complaint for divorce was filed, (4) the spouse 4. The statutory defenses to adultery are affirmative defenses which must be proven by clear and convincing evidence by the party asserting the defense or defenses.

[201 W.Va. 383] charging adultery also committed adultery within three years before filing the complaint, (5) the act of adultery was committed due to connivance or procurement by the spouse bringing the charge, or (6) the adultery was condoned by the party charging the other with adultery.

5. When the evidence relied on to prove adultery is circumstantial it should be carefully scrutinized and acted upon with caution, and it must be such as to convince the guarded discretion of the fact finder that the act has been committed. The evidence in such cases must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.

6. Factors lower courts should consider in assessing circumstantial proof of adultery include: (1) the propensity of the parties (spouse and alleged paramour) to commit adultery, (2) the amount of time the parties spent together, (3) whether there was an amorous relationship between the parties, (4) whether other persons were present when an alleged illicit rendezvous occurred, and (5) whether the association between the parties was open or surreptitious. These factors are additional tools of analysis and not the sole criteria for evaluating circumstantial evidence to prove adultery.

7. "With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit." Syl. Pt. 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

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

9. "In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily enumerated factors, including: (1) monetary contributions to marital property such as employment income, other earnings, and funds which were separate property; (2) non-monetary contributions to marital property, such as homemaker services, child care services, labor performed without compensation, labor performed in the actual maintenance or improvement of tangible marital property, or labor performed in the management or investment of assets which are marital property; (3) the effect of the marriage on the income-earning abilities of the parties, such as contributions by either party to the education or training of the other party, or foregoing by either party of employment or education; or (4) conduct by either party that lessened the value of marital property. W.Va.Code Sec. 48-2-32(c) (1986)." Syl. Pt. 1, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).

Marcelle St. Germain, Appalachian Research & Defense Fund, Logan, for Appellant.

James A. Walker, Logan, for Appellee.

DAVIS, Justice:

This appeal was brought by Wanda L.C., ¹ appellant/defendant, from a final order of the Circuit Court of Mingo County granting a divorce to Michael D.C., appellee/plaintiff. Ms. C. argues on appeal that the circuit court committed error in: (1) granting the divorce

[201 W.Va. 384] on the grounds of adultery, (2) awarding child custody to Mr. C., and (3) distributing the marital property. ²

I. FACTUAL BACKGROUND

The C.'s were married on October 15, 1971. One child, now thirteen, was born of the marriage. Ms. C. was a homemaker during most of the marriage. ³ Mr. C. was employed as a coal miner.

In August of 1993, Mr. C. filed for divorce on the grounds of adultery. During the divorce proceedings the following facts were established. In 1990, Ms. C. began a "telephone" relationship with a former high school classmate named Russell Lester. The record indicates that Mr. Lester is confined to a wheelchair. ⁴ From 1990 to 1993, Ms. C. and Mr. Lester spoke on the telephone approximately one hour each day, every day of the week. ⁵ Mr. C. was unaware of the telephone conversations. ⁶

Two of Ms. C.'s neighbors used a police scanner to regularly listen in on Ms. C.'s (cordless) telephone conversations with Mr. Lester. The two neighbors testified that they frequently heard Ms. C. and Mr. Lester talking about their sexual activity. The neighbors also testified they heard Ms. C. and Mr. Lester making plans for additional rendezvous. Testimony was also introduced showing that Ms. C. routinely left her child in the care of babysitters for hours at a time. ⁷

In 1991, Mr. Lester was indicted by a Logan County grand jury on a felony sex charge involving a minor. ⁸ During a search of Mr. Lester's vehicle a state trooper found a nude photograph of Ms. C., depicted in a wooded area. No explanation was given at trial as to how Mr. Lester gained possession of the photograph. ⁹ There was also evidence that Ms. C. incurred large debts, without Mr. C.'s knowledge. In fact, the evidence revealed that Ms. C. forged Mr. C.'s name in order to obtain the loans. ¹⁰

The circuit court, by order entered February 9, 1996, adopted the family law master's recommendation that the divorce be granted to Mr. C. on the grounds of adultery, that Mr. C. be awarded custody of the parties' child, and that the marital property be equitably divided in a manner to compensate Mr. C. for the loss incurred as a result of Ms. C. forging his signature to obtain loans. Ms. C. timely appealed the circuit court's rulings.

II. STANDARD OF REVIEW

We indicated in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995) that: [i]n reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

See also Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) ("This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.").

We held in syllabus point 3 of Stephen L.H. v. Sherry L. H., 195 W.Va. 384, 465 S.E.2d 841 (1995) that "[u]nder the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a [reviewing] court may be inclined to make different findings or draw contrary inferences." On the other hand, "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995), quoting, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). With these principles in view, we examine Ms. C.'s three assignments of error.

III. DISCUSSION

A. The Evidence Was Sufficient to Prove Adultery

The circuit court found that there was clear and convincing evidence that Ms. C. engaged in sexual intercourse with Mr. Lester prior to the filing of the divorce complaint. We held in syllabus point 3 of Rohrbaugh, that "[w]hen adultery is relied upon as a ground for divorce, evidence which is sufficiently strong, clear and convincing to carry conviction of...