Settle v. Settle
| Decision Date | 19 May 1936 |
| Docket Number | 8384. |
| Citation | 185 S.E. 859,117 W.Va. 476 |
| Parties | SETTLE v. SETTLE. |
| Court | West Virginia Supreme Court |
Submitted April 7, 1936.
Syllabus by the Court.
1. In a legal contest between estranged and separated parents concerning the custody of their children, the welfare of the latter is the primary consideration of the courts-the "polar star" by which the discretion of the courts is to be guided-but the legal rights of the parents respectively, will be regarded when such rights have not been transferred, forfeited or abandoned.
2. With reference to the custody of very young children, the law favors the mother if she is a fit person, other things being equal, but, if her marital conduct has been questionable, her primary right may be lost, because in contests between parents affecting the custody of children, the law favors the innocent spouse. But over and above all other lines of approach stands the welfare of the children, by which consideration, in the last analysis, the discretion of the courts is to be guided.
3. In a contest between estranged and separated parents in respect of the custody of children, the courts may direct a divided or alternating custody, if the circumstances of the case seem to justify such course.
4. Under Code 1931, 48-2-15, as amended by section 15, c. 35, of the Acts of the Legislature of 1935 (page 163), the matter of the custody of children of estranged parents, whether divorced or not, remains in the discretion of the chancellor under a continuing jurisdiction, and any arrangement he or the appellate court may make pertaining to the custody of such children may be changed by him from time to time as circumstances may seem to require.
Appeal from Circuit Court, Mercer County.
Suit by Katherine St. Clair Settle against Thomas Henry Settle, wherein defendant filed a cross-bill. From an adverse decree, defendant appeals.
Affirmed in part, reversed in part and remanded.
A. F Kingdon and J. M. B. Lewis, Jr., both of Bluefield, for appellant.
Richardson & Kemper, of Bluefield, and R. O. Crockett, of Tazewell, for appellee.
In this suit of Katherine St. Clair Settle, plaintiff, against her husband, Thomas Henry Settle, defendant, there is involved on the appeal primarily the question of custody of their two children, Roslyn and Thomas, Jr., ages seven and five respectively. The circuit court awarded custody to the mother with limited and prescribed rights of visitation by the father. He prosecutes this appeal.
The plaintiff sought divorce on the ground of cruelty. In his answer, the defendant categorically denied the charges of cruelty, and prayed for the custody of the children. As basis for his contention that the plaintiff is unfit to have the custody of the children, he charged her with repeated intimate contact with Joseph P. Santori. The defendant did not allege adultery on the part of the wife, though the circumstances pleaded carry the necessary implication of such conduct. Neither did he pray for a divorce: he asked merely for the custody of the children. In a special reply in writing, the plaintiff denied the allegations laid against her by the defendant. The circuit court found specifically (1) that the plaintiff did not establish cruel and inhuman treatment of her by her husband, as she charged in her bill (2) that the plaintiff is innocent of improper or intimate relations with Joseph P. Santori as charged against her by the defendant in his cross-bill answer. Other specific findings, dealing principally with property matters, are not pertinent to the questions arising on the appeal. Divorce was denied the plaintiff, certain property rights were settled and the custody of the children was determined as stated.
We concur in the finding of the circuit court that the plaintiff failed to establish her charges against her husband of cruel and inhuman treatment (see further discussion hereinafter), but in the trial court's acquittal of the plaintiff of improper and intimate association with Joseph P. Santori, we do not concur. Her intermittent fellowship with this man through a period of months was inconsistent with circumspection and matronly propriety.
The plaintiff and her children reside with her parents at Tazewell, Virginia. Her father is a man of large wealth, and she has substantial property holdings from which she derives a considerable annual income. The defendant resides at Bluefield, West Virginia, in the home formerly occupied by him and his family. He testified that if he is awarded custody of the children, his sister will make her home with him and care for the children. He owns his home, also other real properties, some of which are income producing. He has an annual net income of about $5,000.00. For a number of years prior to the latter part of 1933, the defendant was associated with plaintiff's father in the coal business, and during that period, the defendant's income was substantially larger than it is at present. In respect of his sobriety and morality, the record affords him affirmative support. However, the evidence tends strongly to establish that in the latter part of defendant's association with plaintiff's father in business, the defendant became neglectful of his duties and devoted much time, energy and capital to stock market speculations, and, further, and more seriously, that there were certain irregularities in his accounts with the partnership of which he was a member. These are relied on by the plaintiff as a reason why the defendant should not be awarded the custody of the children.
On this background, what provision should be made for the children? In reaching a determination of the problem, the court must consider both the welfare of the children and the natural rights of the parents.
Certain settled legal principles are involved. By statute, Code 1931, 48-2-15, as amended by Acts of the Legislature of 1935, c. 35, § 15 (page 163), authority is placed in the courts to make provision by decree for the custody of children though no divorce be granted the parents if they are living separate and apart, "and such order or decree may, from time to time afterward, on petition of either of the parties, be revised or altered, and a new order or decree made, as the circumstances of the parties or the needs of the children may require." Another statute provides: Code 1931, 44-10-7. This statutory provision is in recognition of the modern and more conscionable conception that there is parity of interest in the parents concerning the welfare of their children; that the natural love and affection of each toward the children should be recognized and not that the mother should be discriminated against in favor of the father as under the old rule. Thus this court spoke in...
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