Moyer v. Moyer

• Court: Virginia Supreme Court
• Writing for the Court: Before EGGLESTON; BUCHANAN
• Citation: Moyer v. Moyer, 206 Va. 899, 147 S.E.2d 148 (1966)
• Decision Date: 07 March 1966
• Parties: Cora Frances MOYER v. Clarence Matthew MOYER.

Page 148

147 S.E.2d 148

206 Va. 899

Cora Frances MOYER v. Clarence Matthew MOYER.

Supreme Court of Appeals of Virginia.

March 7, 1966.

S. Page Higginbotham, Orange, T. Stokeley Coleman, Fredericksburg (Higginbotham & Fry, Orange, on brief), for appellant.

Roby G. Janney, Luray, for appellee.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

BUCHANAN, Justice.

This appeal is from a decree entered in the court below on November 27, 1964, changing the custody of the infant son of divorced parents from the mother to the father, from which the mother appeals.

Clarence Matthew Moyer, age 35, referred to herein as complainant or father, and Cora Frances Baldwin, age 22, herein referred to as defendant or mother, were married on June 19, 1957. One child, Aaron Matthew Moyer, was born of this union on March 25, 1958. On August 26, 1958, the complainant filed suit against defendant for divorce, alleging that she had deserted him on August 23, 1958. He prayed for a divorce A mensa et thoro and for custody of the child, then five months old.

On December 12, 1958, the court entered its decree granting the complainant a divorce A mensa from the defendant on the ground of desertion, awarded custody of the child to her and required the father to pay to her for the support of the child $60 each month until he should become of age, married or self-supporting, or until further order of the court, with the right to the father to visit him at reasonable times.

On April 2, 1959, the court entered a decree denying a motion of the father that the custody of the child be given to him, the court being of opinion that there was no sufficient showing of necessity for disturbing the custody.

On October 1, 1959, complainant filed his petition praying that the divorce be enlarged into a divorce from the bond of matrimony and 'that the custody and support order heretofore entered may be continued,' and on that day the court entered its decree granting complainant an absolute divorce and ordering that the custody of the child remain with its mother until he was twenty-one years old, or married, or became self-supporting, or until further order of the court; that the complainant pay to the defendant for the support of the child $60 on the first day of each month during such time, complainant to have the right to visit the child at reasonable times and under reasonable circumstances.

By decree of September 26, 1960, by consent of the parties, the visiting rights of the complainant were enlarged to include the taking of the infant by the defendant once a month on Sunday afternoon to visit the complainant and remain for not less than two hours.

On November 27, 1964, complainant filed a petition alleging that since the entry of the decree last mentioned the conditions surrounding the infant had materially changed and praying that the court enter a decree granting to the complainant the full custody and control of the child.

After hearing evidence Ore tenus the court entered the decree appealed from awarding the custody of the child to the complainant, 'with whom he shall reside except that the defendant shall have the custody of said infant from the 15th day of June to the 15th day of August of each year, during which time (complainant) shall pay unto the defendant the sum of $120.00 for the support of said infant.'

At the conclusion of the evidence the chancellor stated that unquestionably there had been a showing of change of circumstances and conditions since the decree of September 1960, and that the changes that influenced him were: (1) that the defendant had failed to comply with the order that she deliver the child once a month to the complainant; (2) the failure of the defendant to get the child admitted to school; (3) that the child had reached the age of almost seven years; (4) that the defendant was the guilty party in the breaking of the marriage; (5) that one of the reasons for putting on the father the burden of keeping the child and being responsible for his maintenance is that he have enjoyment of the child's society and company.

It is important to keep in mind, in deciding the difficult question of the custody of a child of a broken home, that the court should concern itself primarily with the welfare of the child. It was stated in Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354:

'In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate. * * *'

The natural sequence of that principle is found in this further statement in the Mullen case:

'Even though the defendant has been found to be at fault in deserting her husband, her fault was not based on any moral delinquency. She has committed no fault against the child. The custody of the child is not to be ordered with a view of heaping punishment upon the defendant by reason of her responsibility for the severance of the marriage ties, where the substantial evidence shows that the mother is a fit person to share the custody.' 188 Va. at 272, 49 S.E.2d at 355.

It does not appear that the failure of the defendant to take the child to the complainant's home as she had agreed to do represented a willful violation of the September 1960 decree. She testified that she took the child there until the complainant's father died and after that she did not think there was any need because his family could visit the child in her home, and that complainant made no complaint about it until April 1964. Complainant testified that his father died on November 6, 1962, and after the defendant quit bringing the child over he wrote to her that he was coming over there to visit, and he continued visiting the child there once a month. If he was aggrieved in this matter he could, and doubtless would, have applied to the court for remedy.

In Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518, custody of a child had been taken from the mother because she had removed the child from the State and had not allowed the father to see the child as directed by the trial court's order. In reversing, the court said:

'This is not a proceeding to discipline the respondent for her shortcomings. It is not a proceeding to reward the petitioner for any wrong which he may have suffered. It is a proceeding solely with reference to the custody of a little girl. The governing principle by which the court must be guided in deciding the issues raised is the welfare of the child. * * *'

On the point that the defendant had failed to enter the child in a public school, the record shows that he had been pre-enrolled in an elementary school in Culpeper county and when that school opened in August 1964 the defendant took the child to the school and remained with him all day, over the objection of the principal. Next day the defendant's mother took the boy to school and also stayed there with him. He was not brought back to the school after that. He was then enrolled in an elementary school in Fauquier...