Pozzie v. Prather, 12665

• Court: Supreme Court of West Virginia
• Citation: 151 W.Va. 880,157 S.E.2d 625
• Docket Number: No. 12665,12665
• Parties: Thelma POZZIE v. Elliott PRATHER et al.
• Decision Date: 14 November 1967

Page 625

157 S.E.2d 625 151 W.Va. 880 Thelma POZZIE
v.
Elliott PRATHER et al. No. 12665. Supreme Court of Appeals of West Virginia. Submitted Sept. 12, 1967.
Decided Nov. 14, 1967.

Page 626

Syllabus by the Court

1. When a review of the final judgment of a circuit court rendered in a habeas corpus proceeding is prosecuted on writ of error in this Court, a bill of exceptions or a certificate in lieu thereof is required, pursuant to the provisions of Code, 1931, 56--6--35 and 36, in order to make the testimony upon which the judgment of the circuit court was based a part of the record for appellate purposes.

2. The purpose of bills of exceptions, or certificates in lieu thereof, is to exhibit the alleged errors of the trial court which do not appear upon the record and which cannot otherwise be brought before an appellate court for review and correction, if erroneous.

3. In any case in which a bill of exceptions or a certificate in lieu thereof is necessary in order properly to present for appellate consideration the alleged errors of the trial court, the absence thereof is jurisdictional and may be raised and considered by the appellate court on its own motion.

4. An appellant or plaintiff in error must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.

5. When the alleged errors of the trial court involve the sufficiency [151 W.Va. 881] of the proof and the testimony upon which the judgment of the trial court is based is not made a part of the record for appellate purposes, the appellate court must presume that the judgment of the trial court is correct is correct and warranted by the testimony.

Herman Canady, Jr., Charleston, for plaintiff in error.

W. Hayes Pettry, Charleston, for defendants in error.

CALHOUN, President.

This case, on appeal from a final judgment of the Circuit Court of Putnam County, involves a habeas corpus proceeding instituted in that court in January, 1966, by Thelma Pozzie, as petitioner, against Elliott Prather and Lynda Prather, husband and wife, as respondents for the purpose of obtaining an adjudication of the right to the custody of Michael Dewayne Pozzie, an illegitimate child born on April 2, 1965, to the petitioner, who previously had been divorced from her husband.

In her habeas corpus petition, Thelma Pozzie alleges that she resides in Kanawha County; that the respondents reside in Putnam County; that she gave temporary custody of her child to the respondents for a period of time which was extended by her for a total period of about a month, at which time she demanded return of custody of the child; and that the respondents then refused and thereafter continued to refuse to surrender custody of the child to the petitioner.

In their answer to the petitioner, which hereafter will be referred to in this opinion

Page 627

as a return, the respondents allege that they 'made several trips to see the mother of said child and she would take the baby for a [151 W.Va. 882] few minutes and then give him back and did not evidence any interest in said child'; that the child was abandoned by his mother; and 'that said child's mother's home is not a fit and proper place for parental care or guardianship of said child, but is one of neglect, cruelty and disrepute on part of the mother and on the part of other persons who may be living with said mother.' The return contains additional allegations of a similar nature and concludes with a prayer that the respondents be awarded the permanent custody of the child. By a subsequent pleading, the petitioner denied the allegations of fact contained in the return.

Depositions of witnesses were taken in behalf of the petitioner, pursuant to agreement of the parties, at Winfield, in Putnam County, on June 17, 1966; and, pursuant to agreement of the parties, depositions of witnesses in behalf of the respondents were taken at Charleston, Kanawha County, on June 22, 1966.

An order entered on March 7, 1966, prior to the taking of the depositions, states that the trial court, according to its letter opinion, considered the case on the pleadings 'and he written and oral reports of two social workers of the Department of Welfare, Child Welfare Division' and that the prayer of the petition was denied. If that should be considered to be the final judgment of the court, the appeal to this Court was not made within the required statutory appeal period of eight months, the petition for writ of error having been filed in the office of the Clerk of this Court on April 14, 1967.

By writing filed March 17, 1966, counsel for the petitioner moved the trial court to set aside its previous judgment on the ground that it was based on written reports and oral statements of two social workers which were considered and heard out of the presence of the attorneys. The subsequent depositions of witnesses for the respective parties disclose that they were taken pursuant to agreement of the parties in the [151 W.Va. 883] presence of and with the full participation of counsel for the respective parties. The record discloses that the depositions were thereafter considered by the trial court in arriving at its ultimate decision. An order entered on August 15, 1966, recites that, 'upon reviewing the evidence submitted by way of depositions that the former position taken by the Court in the judgment of March 7, 1966, is strengthened and the decision rendered therein must stand.' It was further ordered that the child remain in the custody of the respondents. We are of the opinion that this latter order...