Rosier v. Rosier, 14192

Decision Date10 April 1979
Docket NumberNo. 14192,14192
Citation162 W.Va. 902,253 S.E.2d 553
PartiesMartha Jo ROSIER v. Robert Glen ROSIER.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. In a divorce proceeding involving questions of child custody, reports addressed to a judge by public assistance agencies which have not been admitted into evidence, should not be considered for any purpose, absent the express consent of the parties.

2. The appeal bond required by the Rules of the Supreme Court of Appeals is a cost within the meaning of W.Va.Code, 59-2-1, and a poor person, within the meaning of that statute, may prosecute an appeal on his own recognizance, rather than by posting a money bond.

John L. Henning, Elkins, for appellant.

William M. Karr, III, Elkins, for appellee.

PER CURIAM:

The appellant in this divorce case, Martha Jo Rosier, contends that the trial court erred in relying upon a welfare report in awarding custody of her infant daughter to the appellee, Robert Glen Rosier.

After institution of this proceeding the trial court directed the West Virginia Department of Welfare to conduct an investigation of the background, living conditions, and general circumstances of the parties.

During the subsequent hearing in the case, evidence introduced dealt principally with the actions of the parties toward each other. There was minimal evidence regarding the fitness of the parties to care for the child.

At the conclusion of the hearing the trial court stated "Based on the evidence adduced, the plaintiff will be granted a divorce from the defendant, and I have the benefit of a very adequate Welfare investigation on the homes of both parties that consists of ten pages, and it will be the court's ruling that the child Sheryl (sic) Marie Rosier, custody of that child will be granted to the plaintiff, Robert Glen Rosier, . . . ."

It is apparent from these remarks that the trial judge based his award of custody on the welfare investigation report.

The rule in this State is that in divorce proceedings involving questions of child custody, reports addressed to a judge by public assistance agencies which have not been admitted into evidence, should not be considered for any purpose, absent the express consent of the parties. See, Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901 (1949); In re Simmons Children, 154 W.Va. 491, 177 S.E.2d 19 (1970).

After the filing of this appeal, the appellee raised ancillary questions involving the failure of the appellant to follow the Rules of this Court in prosecuting her appeal. Among other points, the appellee contended that the appellant had failed to post an appeal bond within the time required by the Rules of this Court and that for that reason this...

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3 cases
  • Tucker v. Tucker
    • United States
    • West Virginia Supreme Court
    • February 6, 1986
    ...874 (1952); Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972). See 27B C.J.S., Divorce § 317(8)a. See also Rosier v. Rosier, 162 W.Va. 902, 253 S.E.2d 553 (1979); Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901 (1949); In re Simmons Children, 154 W.Va. 491, 177 S.E.2d 19 (1970). It has bee......
  • State Va. v. Marshall
    • United States
    • West Virginia Supreme Court
    • May 3, 2011
    ...meaning of that statute, may prosecute an appeal on his own recognizance, rather than by posting a money bond.” Syl. Pt. 2, Rosier v. Rosier, 162 W.Va. 902, 253 S.E.2d 553 (1979). Bruce Perrone, Legal Aid of West Virginia, Charleston, WV, for the Appellants.Victoria L. Casey, Charleston, WV......
  • Arlan's Dept. Store of Huntington, Inc. v. Conaty, 14326
    • United States
    • West Virginia Supreme Court
    • April 10, 1979

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