St. Clair v. St. Clair, 14838
| Decision Date | 19 December 1980 |
| Docket Number | No. 14838,14838 |
| Citation | 273 S.E.2d 352,166 W.Va. 173 |
| Court | West Virginia Supreme Court |
| Parties | Lillie Mae ST. CLAIR v. Charles Edward ST. CLAIR. |
Syllabus by the Court
1. "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action." Rule 21, West Virginia Rules of Civil Procedure.
2. "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 the evidence." Syllabus Point 4, Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1966), quoting, Syllabus Point 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945).
Glyn Dial Ellis, Logan, for appellant.
Thomas R. Parks, Logan, for appellee.
This is an appeal by Lillie Mae St. Clair from rulings of the Circuit Court of Logan County in her contested divorce proceeding. The appellant, Mrs. St. Clair, contends that the court erred in allowing her mother-in-law to intervene, and in restricting her right to visit her two children. The appellant also asserts that the court erred in failing to declare a constructive trust in her favor over a parcel of property owned by her husband, and in failing to declare that she was the actual owner of a one-half undivided interest in a bank account registered in the names of her children. We find that the claims are without merit, and we affirm the decision of the circuit court.
After the institution of this proceeding, Nora St. Clair and Jesse St. Clair, the appellant's mother-in-law and father-in-law, moved to intervene. Their motion indicated that they were seeking custody of the appellant's two infant daughters, who were then ten and twelve years old. The appellant did not object to the motion and, in fact, stipulated, through counsel, that the intervention was acceptable for the sole purpose of determining the custody of the children.
At the trial of the case before a divorce commissioner, on January 25, 1978, evidence was introduced showing that shortly after birth the appellant's children were left in the care and custody of Nora and Jesse St. Clair. The children had been raised by Nora and Jesse, and at the hearing they expressed a desire to remain in Nora's custody. 1 The evidence demonstrated that they had been well cared for and that they were well adjusted.
The appellant testified that after her separation from her husband, she and Nora St. Clair had had a disagreeable encounter at Nora's home and that Nora had, in effect, driven her off. She also testified that her husband had, without her prior knowledge, withdrawn approximately $8,000 from a jointly-owned savings account and that with the funds he had purchased a parcel of real estate which was subsequently titled in his name alone. She further claimed that half the funds in a bank account registered in the names of her children belonged to her.
After the conclusion of the hearing, and after receiving the report of the divorce commissioner, the circuit court awarded the appellant a divorce, granted Nora St. Clair custody of the infant children, granted the appellant visitation rights with the restriction that visitation not occur at Nora St. Clair's home, directed the appellant's husband to pay the appellant $4,000, one-half the amount which he had withdrawn from the jointly-held bank account, and ruled that the funds in the children's bank account belonged to the children.
The appellant's first assertion is that the trial court erred in allowing Nora St. Clair to intervene even though no pleading had been filed in her behalf. 2
Regarding the intervention, the report of the divorce commissioner who heard the case indicates:
On May 15, 1975, Nora St. Clair and Jesse St. Clair moved to intervene in this matter; and at the hearing on this matter, it was stipulated by counsel that the Court had allowed them to intervene although no pleadings were contained in the file; said intervention being for the purpose of determining the custody of the infant children of Lillie St. Clair and Charles Edward St. Clair; prior to the hearing in this matter, Jesse St. Clair, one of the intervenors died.
Rule 21 of the West Virginia Rules of Civil Procedure provides in part: "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action." The commentators on Federal Civil Rule 21, upon which our Rule is patterned, have indicated that a proper procedure to drop or add a party under Rule 21 is, as specified in the Rule, by motion. 2 H. Kooman, Federal Civil Practice § 21.05 (1969); 7 C. Wright and Miller, Federal Practice and Procedure § 1688 (1972); 3A Moore's Federal Practice § 21.05 (1979). That is precisely the procedure followed by Jesse and Nora St. Clair.
Inasmuch as the appellant stipulated that the intervention was permissible, and inasmuch as the procedure followed was proper, we hold that the appellant's first assignment of error is without merit.
The appellant's second claim is that the trial court failed to afford her reasonable visitation rights. 3 Specifically she contends that the trial court erred in refusing to allow her to visit her daughters in her mother-in-law's home.
W.Va. Code 48-2-15 (1969) authorizes a court conducting divorce proceedings to make such order as it shall deem expedient concerning the care, custody, and education of minor children. 4 Regarding the authority conferred by this statute we have said:
Under Code, 48-2-15, as amended, the questions of maintenance of the wife and custody of a minor child, in a suit for divorce, are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused. Syllabus Point 3, Finnegan v. Finnegan, 134 W.Va. 94, 58 S.E.2d 594 (1950).
See, Witt v. Witt, 141 W.Va. 43, 87 S.E.2d 524 (1955).
Closely related to the question of custody is the right of a parent to visit a child who is in the legal custody of another party. J.M.S. v. H.A., W.Va., 242 S.E.2d 696 (1978). And a court, in defining a parent's right to visitation is charged with giving paramount consideration to the welfare of the child involved. J.M.S. v. H.A., Id.
The testimony of the appellant during the divorce hearing indicated that she had had a confrontation with Nora St. Clair at the latter's home. The court found:
(T)hat the plaintiff has not been able to visit her children in a reasonable manner since her separation from them and it would be in the best interest of the children and the...
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