Moore v. Moore
| Decision Date | 01 September 1971 |
| Citation | 183 S.E.2d 172,212 Va. 153 |
| Parties | Jean Nixon MOORE v. Donald P. MOORE. |
| Court | Virginia Supreme Court |
Betty A. Thompson, Arlington, for appellant.
Quinlan H. Hancock, Alexandria, for appellee.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
I'ANSON, Justice.
On September 28, 1967, Jean Nixon Moore, plaintiff, filed a bill of complaint against her husband, Donald P. Moore, defendant, seeking a divorce A mensa et thoro on the grounds of desertion and cruelty and praying that she be awarded alimony and support money and the custody of their two daughters, Lynn, aged 7, and Janice, aged 4. Defendant filed an answer and cross-bill denying plaintiff's allegations, and asking for temporary custody of the children. Thereafter, defendant twice amended his cross-bill to include a prayer for a divorce A vinculo matrimonii on the grounds of desertion and adultery. Plaintiff filed an answer denying the allegations of defendant's cross-bills.
Depositions were taken before a special commissioner in chancery in support of defendant's cross-bills. No evidence was offered by plaintiff. On December 17, 1969, the commissioner reported that the evidence was insufficient to establish adulterous conduct on the part of plaintiff, but that it showed plaintiff deserted defendant on June 17, 1967. He recommended that defendant be granted a divorce A vinculo matrimonii either on the ground of desertion or two years' separation. The report further stated that the custody of the children 'must be determined' by the chancellor.
After argument of counsel on defendant's exceptions to the commissioner's report, the chancellor affirmed the report. In considering evidence taken by depositions relating to custody of the children, the chancellor was of the opinion that while the evidence did not establish adulterous conduct on the part of plaintiff, it did indicate that plaintiff's sole reason for leaving defendant was that she and Allen Stuhl, 'an excommunicated minister of the Episcopal Church,' intended to marry sometime in the future; that such marriage would create an 'immoral atmosphere' in which it would be improper for the children to live with the mother; that the father is a good father; and that he 'is more than able to care for these children.'
Accordingly, the chancellor entered his decree granting the husband a divorce A vinculo on the ground of desertion and awarding custody of the children to the father, with visitation rights to the mother. Execution of the custody provision of the decree was suspended pending application for an appeal to this court.
The sole question presented is whether the court erred in awarding custody of the children to the defendant.
The pertinent evidence taken by depositions before the commissioner, and upon which the chancellor based his findings, shows that plaintiff left her husband on June 17, 1967, and has resided with her mother since that time.
Plaintiff had been a Sunday school teacher in the church at which Stuhl was assistant rector. Letters exchanged between the plaintiff and Stuhl show that they were in love and that they both looked forward to the day when they would be free to marry. Their relationship led to her being deprived of the privilege of taking communion and to Stuhl's resignation as an active priest of the church.
When plaintiff left her husband she took the two girls with her. The children are now 11 and 7 years old, respectively. They are well adjusted and well cared for by plaintiff. Counsel for defendant conceded that the children would choose to live with their mother if permitted to state a preference.
All except one of the witnesses called by defendant said that both parties were fit and proper persons to have custody of the children.
The familiar rule is that the welfare of the children is the paramount consideration in all controversies between parents over the custody of their minor children. Rowlee v. Rowlee, 211 Va. 689, 690, 179 S.E.2d 461, 462 (1971), and the numerous cases there...
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Burnside v. Burnside, 750358
...be best promoted by awarding custody to the mother, if she is a fit person and if other things are equal. She refers to Moore v. Moore, 212 Va. 153, 183 S.E.2d 172 (1971), where the mother of two daughters, ages eleven and seven, prevailed; to Lundeen v. Struminger, 209 Va. 548, 165 S.E.2d ......
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White v. White, 740382
...Mullen, 188 Va. 259, 49 S.E.2d 349 (1948). This general rule is applied even when the father has obtained the divorce. Moore v. Moore, 212 Va. 153, 183 S.E.2d 172 (1971). If the evidence shows that the mother's home and the father's home are equally suitable for the child, then 'other thing......
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Harper v. Harper, 751229
...father, who had 'performed beyond expectation the role of both father and mother', but that 'the rule' enunciated in Moore v. Moore, 212 Va. 153, 183 S.E.2d 172 (1971), that the best interests of a child of tender years are served by being with his mother, was controlling, and that transfer......