Sandusky v. Sandusky

• Decision Date: 03 February 1981
• Docket Number: No. 14677,14677
• Citation: 271 S.E.2d 434,166 W.Va. 383
• Parties: Andree Lee SANDUSKY v. Paul Edward SANDUSKY.
• Court: West Virginia Supreme Court

Page 434

271 S.E.2d 434

166 W.Va. 383

Andree Lee SANDUSKY v. Paul Edward SANDUSKY.

No. 14677.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1981.

Syllabus by the Court

1. "In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of evidence." Syl. pt. 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1966), quoting, syl. pt. 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945).

2. "Alimony must not be disproportionate to a man's ability to pay as disclosed by the evidence before the court." Syllabus, Miller v. Miller, 114 W.Va. 600, 172 S.E. 893 (1934).

McCamic & McCamic and Jolyon W. McCamic, Wheeling, for appellant.

Camilletti & Camilletti and Gary Sacco, Wheeling, for appellee.

PER CURIAM:

This is an appeal by Paul Sandusky from a final divorce decree entered by the Circuit Court of Ohio County on August 10, 1979. Mr. Sandusky contends that the court erred in: (1) granting a divorce on the ground of cruelty; (2) granting exclusive possession and use of the parties' personal property to the wife; (3) granting an excessive award of child support and alimony; and (4) awarding attorney fees to the wife. We agree in part and reverse.

Mrs. Sandusky filed a petition for divorce in November of 1978, alleging that she and the appellant were married in 1963, that they had one child, and that the appellant was guilty of cruel and inhuman treatment. A hearing was held in the matter on May 23, 1979. Mrs. Sandusky testified that the appellant had slapped her on the face on two different occasions; had called her a whore, a tramp, and a slut; had frequently accused her of having affairs; and had on frequent occasions absented himself from their home for lengthy periods without telling her where he was going. Her testimony was corroborated in part by that of Mrs. Comer, a neighbor of the Sanduskys, who testified with regard to the frequent absences of Mr. Sandusky and in general about the discontent in the Sandusky household. The appellant admitted that name-calling had occurred in the past and also admitted that he was frequently away from home but attributed the absences to the necessity of him traveling away from home to teach, and to the fact that he had to visit his family (parents and siblings) who lived in Pennsylvania.

In its findings of fact, the trial court found, among other things, that:

(T)he Defendant has been guilty of cruelty toward the Plaintiff, in that he did strike her, belittle and criticize her in front of others, and further that the Defendant did absent himself on numerous occasions for various lengths of time.

The Court does further find that the actions of the Defendant as described above have seriously affected the health and well-being of the Plaintiff, rendering further cohabitation between the parties unsafe and unendurable.

In the divorce decree entered on August 10, 1979, the court awarded Mrs. Sandusky custody of the couple's infant child and granted the appellant reasonable visitation rights. The court also ordered that the appellant pay Mrs. Sandusky $25.00 per month alimony and $150.00 per month child support. In addition, the appellant was charged with paying reasonable medical and dental expenses for the child and with maintaining health insurance on him. The decree also awarded Mrs. Sandusky exclusive possession and use of one of the couple's three automobiles and their jointly-owned residence, along with all personal property located therein, and required the appellant to continue making the mortgage payments on the house.

The appellant's first contention is that the evidence does not support the granting of a divorce on the ground of cruelty. W.Va.Code, 48-2-4(a)(4). We find this contention to be without merit. The findings and conclusions of the trial court are amply supported by the evidence and more than satisfy the statutory definition of cruel or inhuman treatment and, though the evidence was conflicting on some points, the trial court properly resolved those conflicts in favor of the appellee. Under W.Va.R.C.P. 52(a) findings of fact cannot be set aside unless clearly erroneous and due regard is to be given to the opportunity of the trial court to judge the credibility of the witnesses. This rule is, of course, consistent with our case law that, "(i)n a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of evidence." Syl. pt. 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1966), quoting, syl. pt. 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945). In addition, although the trial court made no finding on this point, there is unrebutted testimony that the appellant on frequent occasions falsely accused his wife of adultery, which is expressly deemed cruel treatment by our divorce statute. W.Va.Code, 48-2-4(a)(4).

The appellee's testimony was adequately corroborated. We held in Hurley v. Hurley, 127 W.Va. 744, 34 S.E.2d 465 (1945) that where a party relies on several acts of cruelty as grounds for divorce, as in the case before us, every act need not be corroborated by a supporting witness. Since a neighbor of the appellee confirmed her testimony in certain material respects, we conclude there was sufficient evidence to satisfy the corroboration requirement of W.Va.Code, 48-2-10.

The appellant's second assignment of error is that the court erred in granting exclusive possession and use of the personal property of the parties to the wife. Appellant relies on our recent case of Murredu v. Murredu, W.Va., 236 S.E.2d 452 (1977) where, citing Wood v. Wood, 126 W.Va. 189, 28 S.E.2d 423 (1943), we held in Syllabus point 3 that, "(u)nder the provisions of W.Va.Code, 48-2-21, in the absence of a specific request for possession of enumerated personal property, the trial court is not authorized to award ownership of personal property in a divorce action."

In this case, the appellee during the divorce hearing requested, and the trial court granted, exclusive use and possession of the personal property located in the marital home. We are of the opinion that the trial court had the authority to make this award under W.Va.Code, 48-2-15, as an incident to its award of alimony, custody and maintenance of the child. The record is unclear, however, as to the nature and ownership of the personal property located in the home. Since we are reversing and remanding this case on the issue of alimony, support and maintenance, questions as to ownership, possession, and use of particular items of personal property can, if necessary, be addressed below under the provisions of W.Va.Code, 48-2-15, 21 and our decisions in McKinney v. Kingdon, W.Va., 251 S.E.2d 216 (1979), and Murredu v. Murredu, supra.

The appellant's third contention is that the trial court's award of alimony and child support was excessive.

The trial court ordered the appellant to pay $25.00 per month alimony, $150.00 per month child support, and $796.00 per month in mortgage payments on the marital home, for a total monthly payment of $971.00. The appellant's only income at the time of the hearing was a $725.00 monthly disability payment. He was not...