Waller v. Waller, 14676
| Decision Date | 16 December 1980 |
| Docket Number | No. 14676,14676 |
| Court | West Virginia Supreme Court |
| Parties | Rita WALLER (Basham) v. Harvey W. WALLER. |
Syllabus by the Court
"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." 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).
William J. Ihlenfeld, Wheeling, for appellant.
Bailey, Byrum & Vieweg and James A. Byrum, Wheeling, for appellee.
Rita Waller appeals from a Circuit Court of Ohio County final judgment which modified a divorce decree and awarded custody of James Clinton Waller, an infant child, to the appellee, Harvey W. Waller, the former spouse of the appellant.
The appellant and the appellee were divorced in March 1975, and custody of their infant child was awarded to the appellant. Following the divorce both parties remarried. In August 1979, the appellee filed a petition seeking to modify the final divorce decree by awarding him permanent custody of the infant child, and after a hearing on September 11, 1979, the circuit court transferred custody to the appellee with the provision that the matter would be reviewed in one year so the appellant could demonstrate circumstances which would justify restoring her to custody. The appellant's motion to modify the final order was overruled, and a stay of execution was granted pending this appeal.
The trial court correctly regarded the proceeding below as one for a change of custody and applied the correct standard of law which required the appellee to show that the parties' circumstances had changed and that the proposed change in custody would materially benefit the child. Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1978). The question before this Court is whether the evidence supports the trial court's findings of fact upon which it based the conclusion of law that a change in custody to the father would materially benefit the child.
The trial court made the following findings of fact: The child was, at times, in a less than clean condition and not properly dressed. The appellant had experienced marital difficulties with her current husband, and although a pastor who counseled them offered the opinion that some stability had been achieved in the marriage, his opinion was conditioned on the understanding they would continue to seek help. The employment history of the appellant's husband had been irregular. The appellee had a stable marriage, could provide a calm, peaceful and comfortable atmosphere for the child, and was a source of security for the child. The appellant, her husband, and children intended to relocate to Oregon, but had no definite housing and employment arrangements. The proposed move would deprive the child of the security provided by periodic visits with his natural father.
On these findings of fact the court concluded that there had...
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