Sparks v. Sparks

• Decision Date: 16 September 1980
• Docket Number: No. 14685,14685
• Citation: 269 S.E.2d 847,165 W.Va. 484
• Parties: Robert C. SPARKS v. Monica M. SPARKS.
• Court: West Virginia Supreme Court

Page 847

269 S.E.2d 847

165 W.Va. 484

Robert C. SPARKS v. Monica M. SPARKS.

No. 14685.

Supreme Court of Appeals of West Virginia.

Sept. 16, 1980.

Syllabus by the Court

Absent a showing that the health or welfare of the children would be substantially impaired, or that the temporary visitation is a subterfuge to remove the children from the jurisdiction of the court on a permanent basis, the custodial parent is entitled to take minor children out of the jurisdiction on a temporary basis.

Baer, Napier & Colburn and William K. Napier, Huntington, for appellant.

No appearance for appellee.

MILLER, Justice:

The appellant, Monica M. Sparks, appeals a final order of the Circuit Court of Kanawha County enjoining her from traveling with her minor children beyond the continental limits of the United States. For the reasons set forth below, the order is reversed.

Mr. and Mrs. Sparks were married in 1967 in England. Mr. Sparks was a United States citizen and Mrs. Sparks then a British subject. Following their marriage, the couple moved to the United States and Mrs. Sparks acquired United States citizenship. In 1976, the couple was divorced by the Circuit Court of Kanawha County. Custody of the two children of the marriage, then ages 8 and 6, was awarded to Mrs. Sparks. The visitation rights of Mr. Sparks were general, "at such reasonable times as will not interfere with (the children's) proper care, maintenance, health and education."

The present controversy arose in 1978 when Mr. Sparks learned that Mrs. Sparks planned a summer visit with the children to Scotland, her native home. Alleging that "he believes that she would remain in Scotland with them and entirely defeat (his) rights of visitation," Mr. Sparks obtained a temporary injunction enjoining Mrs. Sparks from taking the children out of the State of West Virginia.

Upon a final hearing on November 9, 1978, the Circuit Court entered a permanent injunction restraining Mrs. Sparks from taking the children "out of the continental limits of the United States," and "from the State of West Virginia except for visits to other States."

Although the transcript of the final hearing was not included as a part of the record on appeal, the basis for entering the injunction was set forth by the Circuit Court in its findings of fact and conclusions of law. The Circuit Court stated that Mrs. Sparks testified that she planned to take the children to Scotland to visit her mother, a partial invalid, during the children's summer vacation and that she had no intention of remaining there permanently. ¹ Apparently, there was no testimony to the contrary.

The court concluded, "in view of the fact that (Mrs. Sparks) conceivably could keep the children in (Scotland) longer than she says," that an injunction against travel outside the United States was necessary to protect the visitation rights of Mr. Sparks.

The single issue in this case involves the right of a parent with custody of minor children to temporarily remove the children beyond the jurisdiction of the court.

The right of temporary removal appears to have received little attention by appellate courts, and where considered, the courts offer no guidelines. See Gantner v. Gantner, 39 Cal.2d 272, 246 P.2d 923 (1952) (instructing trial court to decide whether best interests of child promoted by allowing temporary trip to Australia); Chatelain v. Chatelain, 93 R.I. 136, 172 A.2d 332 (1961) (upholding trial court decision to permit custodial parent to take children to Switzerland for two years).

In Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901 (1949), we held that where appropriate, a court can vest custody of a child in a person who may permanently take it out of State:

"In a habeas corpus proceeding, or other proceeding, to determine the conflicting claims of persons to the custody of a child, a court of competent jurisdiction has the inherent power, unless restricted by statute, to grant the custody of an infant to a person who does not reside in that jurisdiction and to permit the person to whom it awards the custody of the child to remove it to another state or foreign jurisdiction. Watkins v. Rose, 115 S.C. 370, 105 S.E. 738; Jennings v. Anderson, 114 S.C. 506, 104 S.E. 189; Ex parte Davidge, 72 S.C. 16, 51 S.E. 269; Commonwealth ex rel. Miller v. Wagner and Commonwealth ex rel. Wagner v. Miller, 160 Pa.Super. 536, 52 A.2d 235; Commonwealth ex rel. Lamberson v. Batyko, 157 Pa.Super. 389, 43 A.2d 364; Pyles v. Pyles, 157 Pa.Super. 450, 43 A.2d 651; Commonwealth ex rel. McTighe v. Lindsay, 156 Pa.Super. 560, 40 A.2d 881; Commonwealth ex rel. Fortunes v. Manos, 140 Pa.Super. 352, 13 A.2d 886; Commonwealth ex rel. Black v. Black, 79 Pa.Super. 409; Parrish v. Parrish, 116 Va. 476, 82 S.E. 119, L.R.A.1915A, 576; Ex parte Means, 176 N.C. 307, 97 S.E. 39; Workman v. Workman, 191 Ky. 124, 229 S.W. 379; State ex rel. McGhee v. Superior Court, 99 Wash. 619, 170 P. 130, L.R.A.1918C, 921; Wilson v. Mitchell, 48 Colo. 454, 111 P. 21, 30, 30 L.R.A.,N.S., 507." (133 W.Va. at 508, 56 S.E.2d at 905).

Pugh also recognized the conventional rule that when the removal "will not serve, or is detrimental to, the welfare of the child . . . such removal will not be permitted." (133 W.Va. at 509, 56 S.E.2d at 905). Other courts have reached a similar conclusion in permitting permanent removal where appropriate even though the removal may make the exercise of visitation rights by the noncustodial parent economically impractical. Nelson v. Card, 162 Colo. 274, 425 P.2d 276 (1967); Raymond v. Raymond, 165 Conn. 735, 345 A.2d 48 (1974); In re Marriage of Lower, 269 N.W.2d 822 (Iowa 1978); Hutchins v. Hutchins, 84 Mich.App. 236, 269 N.W.2d 539 (1978);...