Pugh v. Pugh, 10131.

• Decision Date: 06 December 1949
• Docket Number: No. 10131.,10131.
• Citation: 56 S.E.2d 901
• Parties: PUGH. v. PUGH.
• Court: West Virginia Supreme Court

56 S.E.2d 901

PUGH.

v.PUGH.

No. 10131.

Supreme Court of Appeals of West Virginia

Submitted Sept. 27, 1940.

Decided Dec. 6, 1949.

Habeas corpus proceeding by Barbara Pugh against Doyle A. Pugh to obtain custody of the four year old child born to the parties prior to their divorce.

Judgment of the Circuit Court of Preston County awarding separate part-time custody of the child to each of the parties for alternate periods of six months and permitting the petitioner to take the child to her home outside of the state during the periods of her custody, and respondent brought error.

The Supreme Court of Appeals, Raymond, President, reversed with directions on the ground that the award of custody as made would not promote welfare of the child.

Syllabus by the Court.

1. "In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided." Point 2, Syllabus, State ex rel. Lipscomb v. Joplin, W.Va., 47 S.E.2d 221.

2. Unless restricted by statute, a court of competent jurisdiction has the power, in a habeas corpus proceeding, to award the custody of an infant to a person who is not a resident of this State and to permit such person to remove the child to another state or foreign jurisdiction; but such power may not be exercised unless such award of custody and such permission to remove will serve or promote the welfare of the child.

3. A judgment in a habeas corpus proceeding involving the right of divorced parents to the custody of their four year old child, which awards separate part-time custody during successive alternate periods of six months to each parent with permission to one of them, who resides in a distant State, to remove the child to that State from this State during each alternate period of six months, does not serve or promote the welfare of the child and will be reversed by this Court.

4. The only issue for determination in a habeas corpus proceeding involving the right of parents to the custody of their child is the proper custody of the child.

5. In a habeas corpus proceeding involving the custody of an infant the court, in the absence of statutory authority, is without jurisdiction to award money for the support of the child.

R. Doyne Halbritter, Kingwood, F. E. Parrack, Kingwood, Charles V. Wehner, Kingwood, for plaintiff in error.

L. F. Everhart, Kingwood, Frank B. Everhart, Kingwood, for defendant in error.

HAYMOND, President.

The petitioner, Barbara Pugh, a resident of Los Angeles, California, and the former wife of the respondent, Doyle A. Pugh, instituted this habeas corpus proceeding on May 25, 1948, in the Circuit Court of Preston County, to obtain from the respondent the custody of the infant child of the parties, Michael A. Pugh, then four years of age. The case was heard upon the petition, the return and answer of the respondent, and the evidence introduced in behalf of each of the parties. By final judgment entered September 7, 1948, the circuit court awarded separate part-time custody of the child to each of the parties for an alternate period of six months, the petitioner to have him from September 9, 1948, to October 1, 1948, and thereafter from April 1 to October 1, and the respondent to have him from October 1 to April 1, in each year, until the child becomes of school age; gave the petitioner permission to take the child to her home in Los Angeles, California, during the periods of her custody of the child; required the respondent to pay the petitioner $40.00 per month for the support of the child while he was in her custody; and placed the child under the supervision of the Department of Public Assistance of this State until he should become twenty one years of age. To that judgment this writ of error was granted by this Court.

The married life of the petitioner and the respondent presents a series of unhappy events. They were married at Long Beach, California, on March 26, 1943, and on Au-gust 12, 1944, their son, Michael A. Pugh, was born. At the time of the marriage the respondent was in the military service as a member of the United States Marine Corps. While with the marines he spent some time in service overseas. During that time the petitioner, who seems to have had the custody of the child, lived and worked at different places in California. The respondent was discharged from military service on December 4, 1945. At that time the petitioner and the child were residing with her mother in Long Beach, California, and after his discharge the respondent lived with them at that place until the petitioner and the respondent finally separated on January 26, 1946. The respondent, either before or after the separation, was intimate with another woman who became pregnant during their association and he obtained a divorce from the petitioner at Reno, Nevada, on March 13,

1947, in an uncontested suit which he instituted against her in that State. Immediately after the divorce was granted, the respondent and the woman with whom he had been associating, who is now his wife, were married at Tia Juana, Mexico; and on April 4, 1947, she gave birth to a child who is living with them and was thirteen months of age at the time this proceeding was heard. Of course the validity of the divorce or of that marriage is not in issue in this proceeding.

After the petitioner and the respondent separated, he had the custody of their child, Michael A. Pugh, for some time and when he was in Reno for the purpose of obtaining a divorce the child remained at the home of the parents of his present wife. From February, 1947, until April 26, 1948, the child was in the custody of the petitioner at the home of her grandmother at Huntington Beach, California, or at the heme of a Mrs. Steele in Los Angeles, where she was living on April 26, 1948. During the afternoon of that day, in her absence and without her knowledge, the respondent came to the home of Mrs. Steele, got the child and, early in May,

1948, brought him to his present place of residence at Arthurdale, in Preston County, West Virginia. When the petitioner re turned about two o'clock the same day she learned that the respondent had taken the child. She endeavored to locate the child at Long Beach, where the respondent had been living with his wife's parents. They told her that the respondent had left but that they did not know where he had gone. Not being able to find the respondent or the child in California, the petitioner, accompanied by Mrs. Steele, came to the home of the respondent's parents in Preston County on May 16, 1948, in search of the child. The respondent permitted her to see the child but refused her demand for custody. This proceeding followed and the judgment of which the respondent complains was entered on September 7, 1948.

The evidence introduced in behalf of the respective parties is replete with charges and countercharges of misconduct upon the part of each and of neglect of the child by both. It shows that both of the parties, during their marriage, on numerous occasions drank intoxicants excessively and engaged in questionable moral conduct with other men and women. The petitioner kept late hours and was frequently away from her home, leaving the child to be cared for by persons with whom she resided during the time she had him in her custody from February, 1947, until April, 1948. The respondent testified that she was absent from home when he returned there after being discharged from military service on December 4, 1945; that the child was dirty and improperly cared for at that time; that he found the petitioner late at night at a bowling alley in an intoxicated condition; and that he separated from the petitioner because she drank excessively, refused to feed and care for the child, and attended late parties, and because she remained at the home of her mother who was living with an unmarried man. The petitioner denied the statements of the respondent concerning the conduct of her mother and the reasons for their separation, but she did not deny his testimony with reference to her presence at the bowling alley. The misconduct of the respondent and of his present wife before their marriage in 1947 is clearly established.

The petitioner, who was twenty three years of age at the time this proceeding was heard, intends to reside permanently in California. She is capable of earning approximately $45.00 per week and during the year 1947 her income was about $1,100.00, $400.00 of which consisted of unemployment compensation. She owns no property and has no home of her own. She is fond of her child and several witnesses testified that she treated him kindly and cared for him properly while he was in her custody. The conduct of the respondent since his marriage to his present wife is not subject to unfavorable criticism. Since early in May, 1948, he and his present wife, his son Michael, her four year old daughter of a former marriage, and their young child have resided with the parents of the respondent in their home at Arthur-dale. These parents are willing that the respondent and his family reside in their home. The present wife of the respondent testified that she treats Michael A. Pugh as her own child, that she wishes him to be cared for and supported by the respondent, and that she prefers to have him in the home. The respondent testified that if awarded the custody of the child he would see that he received a good education and proper moral training, and that his present wife cares for the child properly. A neighbor testified that the respondent was a suitable person to have the care and the custody of the child. There is nothing in the record to indicate that the present wife of the respondent does not properly care for the child; and the mother of the respondent testified that his present wife treats the child in the same manner in which she treats her own two children. The record is also silent with respect to the financial condition of the...