Moses v. Moses, 20323

Decision Date22 July 1992
Docket NumberNo. 20323,20323
Citation187 W.Va. 755,421 S.E.2d 506
CourtWest Virginia Supreme Court
PartiesMichael S. MOSES, Plaintiff Below, Appellee, v. Brenedah J. MOSES, Defendant Below, Appellant.

Syllabus by the Court

1. "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." Syllabus point 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

2. "The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child." Syllabus point 3, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

3. "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." Syllabus point 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978).

Diana Everett, Ruley & Everett, Parkersburg, for appellee.

C. Scott Durig, Goodwin & Goodwin, Parkersburg, for appellant.

PER CURIAM:

In this appeal Brenedah J. Moses challenges a divorce decree awarding custody of her three infant children to her former husband, Michael S. Moses. On appeal, she claims that the circuit court erred in finding that her former husband had been the primary caretaker of the children and in finding that she was unfit to have custody. After reviewing the record, this Court, while not fully agreeing with the findings of the circuit court, affirms the custody award.

The appellant, Brenedah J. Moses, and the appellee, Michael S. Moses, were married on March 19, 1983. At the time of the marriage, Michael S. Moses was a medical student nearing completion of his training. After he completed that training, the parties moved to Charleston, West Virginia, where Michael S. Moses enrolled in a three-year internal medicine residency at the Charleston Area Medical School. Upon completion of that program, the parties moved to St. Louis, where Michael S. Moses spent seven or eight months as a staff physician at an health maintenance organization. The parties then moved to Wood County, West Virginia, where they established a permanent home and where they were living at the time of the institution of this action.

On December 19, 1983, the parties' first child, Bethany Lorraine Moses, was born. Jameel Solomon Moses, the second child, followed on October 27, 1984, and Ruth Anne Moses, the third child, was born on October 29, 1985.

After the parties moved to Wood County, they began experiencing marital problems, and on December 18, 1989, Michael S. Moses instituted the present proceeding by filing a divorce complaint in the Circuit Court of Wood County. The complaint requested, among other things, that he be granted a divorce from the appellant and that he be granted custody of the parties' three infant children. The appellant filed an answer and counterclaim in which she prayed for a divorce and custody of the children.

The case was referred to a special law master for hearings and consideration after the regular family law master for Wood County voluntarily recused herself from participating in the matter. The special master conducted a number of hearings, and substantial evidence was developed upon the issue of custody of the children.

At the conclusion of the hearings, the family law master concluded that the evidence showed that the appellant had been the primary caretaker of the parties' three minor children and that the evidence was insufficient to establish that she was unfit to have custody of the children. The master, therefore, concluded that the appellant should be awarded custody of the children on a permanent basis and that Michael S. Moses, who was also deemed to be a fit parent, should have liberal visitation rights.

Michael S. Moses took exception to the findings of the master, and the findings were submitted to the Circuit Court of Wood County for review. The circuit court reviewed the record developed before the special family law master and by letter dated November 16, 1990, informed the parties that:

It is clear from the evidence not only that plaintiff [Michael S. Moses] was the primary caretaker and fit to be custodian but also that defendant [appellant] is wholly unfit to be custodian of the children, even if she were properly found to have been the primary caretaker.

The recommendation of the master in respect to the custody of the children is found not in conformance with the law, unsupported by substantial evidence and unwarranted by the facts.

After making these findings, the judge directed that an order be prepared granting a divorce and awarding custody of the couple's three children to Michael S. Moses.

That order was prepared and, on November 30, 1990, it was entered by the circuit court. The order essentially overruled the findings of the special law master concerning the custody of the children and directed that Michael S. Moses have permanent custody of the children. It is from that order that the parties now appeal.

In the present proceeding, the appellant claims that the evidence shows that she was the primary caretaker of the children and that it fails to show that she was an unfit parent. She argues that, in view of these circumstances, she should have been awarded custody of the children. She also claims that the trial court erred in overruling the family law master's findings that she had been the primary caretaker of the children and that she was not an unfit parent.

The parties essentially agree that the legal guidelines for establishing custody are rather clearly set out in Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981). They, however, disagree as to the weight of the evidence and as to the conclusions which should be drawn from that evidence.

In syllabus point 2 of Garska v. McCoy, Id., the Court stated:

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.

In syllabus point 3 of Garska, the Court proceeds to state that:

The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child.

In the Garska case, the Court, following the principles discussed in J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978), addressed at some length the factors to be considered in determining which parent has been the primary caretaker. The Court stated:

In establishing which natural or adoptive parent is the primary caretaker, the trial court shall determine which parent has taken primary responsibility for, inter alia, the performance of the following caring and nurturing duties of a parent: (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e. religious, cultural, social, etc.; and (10) teaching elementary skills, i.e., reading, writing and arithmetic.

167 W.Va. at 69-70, 278 S.E.2d at 363.

In Garska, the Court also recognized the principle set forth in syllabus point 4 of J.B. v. A.B., supra, that:

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.

In the present case, substantial and conflicting evidence was introduced on the question of who had been the primary caretaker of the parties' infant children. The appellant's evidence indicated that during the first four years that the parties had children, she had been the primary caretaker of the children. That evidence indicated that during this period she was with the children all day, every day. Thereafter, when the parties returned to Wood County, she developed certain interests outside the home and became active in an actors guild which entailed her being away from home on a number of nights each week from 5:00 p.m. until the early hours of the morning. There was evidence that she was with the children for a considerable period of time during the day, although on a number of days each month she left the children in day-care.

On the other hand, Michael S. Moses testified that for the two years following the...

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1 cases
  • Marilyn H. v. Roger Lee H.
    • United States
    • West Virginia Supreme Court
    • 21 Febrero 1995
    ...involved the family law master system. Syl. pt. 3, Sellitti v. 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 sylla......

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