Rose v. Rose

• Decision Date: 23 October 1985
• Docket Number: No. 16556,16556
• Citation: 340 S.E.2d 176,176 W.Va. 18
• Court: West Virginia Supreme Court
• Parties: George A. ROSE v. Sharon A. ROSE.

Page 176

340 S.E.2d 176

176 W.Va. 18

George A. ROSE v. Sharon A. ROSE.

No. 16556.

Supreme Court of Appeals of

West Virginia.

Oct. 23, 1985.

Dissenting Opinion Feb. 7, 1986.

Syllabus by the Court

1. "In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker." Syl. pt. 6, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

2. "Where there is a child under fourteen years of age, but sufficiently mature that he can intelligently express a voluntary preference for one parent, the trial judge is entitled to give that preference such weight as circumstances warrant, and where such child demonstrates a preference for the parent who is not the primary caretaker, the trial judge is entitled to conclude that the presumption in favor of the primary caretaker is rebutted." Syl. pt. 7, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

3. In a custody proceeding, where appropriate, the trial judge may interview the child in camera in order to determine with which parent the child would prefer to live, but a record of the interview should be made.

4. "A trial court in the exercise of its sound discretion under the provisions of W.Va. Code 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children." Syl. pt. 2, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977).

William W. Talbott, Talbott & Alsop, Webster Springs, for appellant.

David B. McMahon, Charleston, for appellee.

BROTHERTON, Justice:

This is an appeal from a final order of the Circuit Court of Clay County entered on August 14, 1984, granting a divorce to the parties herein, allowing child support and alimony to Mrs. Rose, and awarding custody of the couple's child to Mr. Rose.

Mr. and Mrs. Rose, both originally from Clay County, were married in Ohio on August 9, 1969. They had one child, Brian, on January 7, 1974. Trouble started in the marriage, evidently because Mr. Rose would not participate in any social activities outside the home. Mrs. Rose eventually started to attend social activities on her own without the accompaniment of her husband. At one of these events she apparently met another man. Mr. Rose, although suspicious of his wife's activities, did nothing until his wife announced that she was leaving. At that time the parties agreed that their son, Brian, who was then 10 years of age, could choose the parent he wanted to stay with. Originally Brian chose his mother. However, after a talk between Brian and Mr. Rose, in which Mr. Rose explained to Brian that Brian's mother had left Mr. Rose for another man, Brian changed his mind and decided to stay with his father.

Mr. Rose filed his complaint on April 17, 1984, alleging irreconcilable differences and asking for a divorce, custody, and possession of the home and furnishings, plus a reasonable property settlement. Mrs. Rose filed a timely answer and counterclaim, admitting irreconcilable differences and counterclaiming for a divorce, custody, support, health insurance, alimony, payments of debts, exclusive possession of the marital home, possession of and title to one of their vehicles, and an equitable distribution of the assets of the marriage.

At the hearing on the case, Mr. Rose called the parties' son, Brian, to the stand as a witness. On the motion of the parties the court itself made an inquiry and determined that the boy was competent to testify. Over objection of counsel for Mrs. Rose, the court then took Brian into chambers for examination with only the judge and the court reporter present. At the conclusion of the testimony the court granted a divorce on the grounds of irreconcilable differences and awarded "joint custody" of Brian to Mr. and Mrs. Rose, but gave actual physical custody to Mr. Rose. ¹ This was done in spite of the fact that the court found that Mrs. Rose was the primary caretaker and that neither party was unfit. The court awarded Mrs. Rose $100.00 per month child support for the months during which Brian was with her on the weekends and $200.00 for the one month during the summer in which she would have him for an additional two full weeks. The court awarded Mrs. Rose $1.00 per month alimony. The court also granted Mr. Rose possession and use of the marital home.

Mrs. Rose now appeals to this Court, citing the following assignments of error:

1. That the court erred in failing to award custody of Brian to Mrs. Rose, whom the court found to be the primary caretaker and fit.

2. That the court erred by examining Brian, who was called as a witness, outside the presence of counsel or the parties, over the objection of the appellant.

3. That the court erred in failing to award Mrs. Rose alimony, other than the nominal $1.00 a month alimony.

4. That the court erred in failing to order any equitable distribution of the marital home.

I.

The first assignment of error alleges that the court erred in failing to award custody of the child to Mrs. Rose when the court found her to be the primary caretaker and fit. This Court ruled in Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981), that: "In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker." Id., syl. pt. 6. This is, however, a presumption which may be rebutted. "Where there is a child under fourteen years of age, but sufficiently mature that he can intelligently express a voluntary preference for one parent, the trial judge is entitled to give that preference such weight as circumstances warrant, and where such child demonstrates a preference for the parent who is not the primary caretaker, the trial judge is entitled to conclude that the presumption in favor of the primary caretaker is rebutted." Id., syl. pt. 7. ² The trial court found that Brian was a bright, intelligent ten-year-old who was doing very well in school. He testified that he would prefer to live with his father. In light of this testimony, we cannot say that the trial court erred in finding that the presumption in favor of Mrs. Rose as primary caretaker was rebutted and in granting custody of Brian to Mr. Rose. We, therefore, affirm the judgement of the trial court on this issue. ³

II.

The appellants also assign as error that the court relied upon testimony from the child in a private interview without the parties or counsel for the parties present. Chief Justice Miller has covered this subject well in his dissenting opinion in Graham v. Graham, 174 W.Va. 345, 326 S.E.2d 189, 191 (1984). Although the issue was not before the Court in Graham, we adopt Chief Justice Miller's reasoning and set out his opinion in pertinent part below:

There is merit in permitting the trial judge to conduct a neutral in camera interview on the preference question after a favorable resolution of the maturity or competency issue, as outlined by the New York Court of Appeals in Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 247 N.E.2d 659, 660, 299 N.Y.S.2d 842, 843 (1969):

"It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them."

It should be noted, however, that in Lincoln the court concluded: "We are confident that the Trial Judges recognize the difficulties and will not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing." Many courts have approved of trial judges discussing custody preferences with children in camera without the parents or their counsel present, provided procedures designed to protect the parents' rights are followed.

Where both parties consent to the judge's interview, there is obviously no problem. Where consent cannot be obtained, it would appear advisable to have a record made of the in camera hearing and to permit the parties to have access to the record by way of an accurate or verbatim summary. A further opportunity should then be afforded for either party to contradict the accuracy of the facts given at the in camera hearing.

174 W.Va. at 348-349, 326 S.E.2d at 192-93 (citations omitted).

The criticism of the judge's behavior in Graham is not present in this case. In Graham the trial judge took a six-year-old child back into his chambers out of the presence of the parties and out of the presence of the court reporter. In this case, a transcript was made of the conversation between the judge and Brian. We find no error in the proceedings. ⁴

III.

The appellant's assignment of error dealing with the refusal of the trial court to order an equitable distribution of the marital home is groundless. "A trial court in the exercise of its sound discretion under the provisions of W.Va. Code 48-2-15, may award the exclusive use of the home property to a spouse incident to obtaining custody of the children." Syl. pt. 2, Murredu v. Murredu, 160 W.Va. 610, 236 S.E.2d 452 (1977). Mr. Rose, in this case, is the custodial spouse and the trial court did not abuse its discretion in granting him exclusive use of the marital home.

IV.

The final assignment of error challenges the amount of alimony awarded Mrs. Rose. The trial court awarded...