C., Michael D. v. C., Wanda L.
Annotate this CaseIN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 23937
_____________
MICHAEL D. C.,
Plaintiff Below, Appellee,
v.
WANDA L. C.,
Defendant Below, Appellant.
____________________________________________________________________
Appeal from the Circuit Court of Mingo
County
Honorable Elliott E. Maynard, Judge
Civil Action No. 93-C-651
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
____________________________________________________________________
Submitted: September 16, 1997
Filed: October 28, 1997
Marcelle St.
Germain James
A. Walker
Appalachian Research & Defense
Fund Logan, West
Virginia
Logan, West
Virginia Attorney
for Appellee
Attorney for Appellant
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MAYNARD, deeming himself disqualified, did not participate in the decision of this case.
SYLLABUS BY THE COURT
1. "In
reviewing challenges to findings made by a family law master that
also were adopted by a circuit court, a three-pronged standard of
review is applied. Under these circumstances, a final equitable
distribution order is reviewed under an abuse of discretion
standard; the underlying factual findings are reviewed under a
clearly erroneous standard; and questions of law and statutory
interpretations are subject to a de novo review." Syl. Pt.
1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264
(1995).
2. "When
adultery is relied upon as a ground for divorce, evidence which
is sufficiently strong, clear and convincing to carry conviction
of guilt to the judicial mind will warrant a decree of divorce on
that ground." Syl. Pt. 3, Rohrbaugh v. Rohrbaugh, 136
W.Va. 708, 68 S.E.2d 361 (1951), overruled on another ground
by, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248
(1978).
3. The legislature has articulated specific exceptions to granting a divorce on the grounds of adultery, even where there is a showing of illicit conduct. W.Va. Code § 48-2-14 (1996) prohibits granting a divorce on the basis of adultery if any of the following are presented and established as a defense: (1) the two spouses voluntarily cohabited after having knowledge of the adultery, (2) evidence of adultery is based solely
upon the uncorroborated testimony of a prostitute or a
participant in the affair, (3) the last adulterous act occurred
three years before the complaint for divorce was filed, (4) the
spouse charging adultery also committed adultery within three
years before filing the complaint, (5) the act of adultery was
committed due to connivance or procurement by the spouse bringing
the charge, or (6) the adultery was condoned by the party
charging the other with adultery.
4. The
statutory defenses to adultery are affirmative defenses which
must be proven by clear and convincing evidence by the party
asserting the defense or defenses.
5. When
the evidence relied on to prove adultery is circumstantial it
should be carefully scrutinized and acted upon with caution, and
it must be such as to convince the guarded discretion of the fact
finder that the act has been committed. The evidence in such
cases must be logical, tend to prove the facts charged, and be
inconsistent with a reasonable theory of innocence.
6. Factors lower courts should consider in assessing circumstantial proof of adultery include: (1) the propensity of the parties (spouse and alleged paramour) to commit adultery, (2) the amount of time the parties spent together, (3) whether there was an amorous relationship between the parties, (4) whether other persons were present when
an alleged illicit rendezvous occurred, and (5) whether the
association between the parties was open or surreptitious. These
factors are additional tools of analysis and not the sole
criteria for evaluating circumstantial evidence to prove
adultery.
7. "With
reference to the custody of very young children, the law presumes
that it is in the best interests of such children to be placed in
the custody of their primary caretaker, if he or she is
fit." Syl. Pt. 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).
8. "Acts
of sexual misconduct by a mother, albeit wrongs against an
innocent spouse, may not be considered as evidence going to the
fitness of the mother for child custody unless her conduct is so
aggravated, given contemporary moral standards, that reasonable
men would find that her immorality, per se, warranted a finding
of unfitness because of the deleterious effect upon the child of
being raised by a mother with such a defective character."
Syl. Pt. 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248
(1978).
9. "In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily
enumerated factors, including: (1) monetary contributions to
marital property such as employment income, other earnings, and
funds which were separate property; (2) non-monetary
contributions to marital property, such as homemaker services,
child care services, labor performed without compensation, labor
performed in the actual maintenance or improvement of tangible
marital property, or labor performed in the management or
investment of assets which are marital property; (3) the effect
of the marriage on the income-earning abilities of the parties,
such as contributions by either party to the education or
training of the other party, or foregoing by either party of
employment or education; or (4) conduct by either party that
lessened the value of marital property. W.Va. Code Sec.
48-2-32(c) (1986)." Syl. Pt. 1, Somerville v. Somerville,
179 W.Va. 386, 369 S.E.2d 459 (1988).
Davis, Justice:
This appeal
was brought by Wanda L. C.,See
footnote 1 1 appellant/defendant, from a final order
of the Circuit Court of Mingo County granting a divorce to
Michael D. C., appellee/plaintiff. Ms. C. argues on appeal that
the circuit court committed error in: (1) granting the divorce on
the grounds of adultery, (2) awarding child custody to Mr. C.,
and (3) distributing the marital property.See footnote 2 2
I.
FACTUAL BACKGROUND
The C.'s were
married on October 15, 1971. One child, now thirteen, was born of
the marriage. Ms. C. was a homemaker during most of the marriage.See footnote 3 3 Mr.
C.
was employed as a coal miner.
In August of
1993, Mr. C. filed for divorce on the grounds of adultery. During
the divorce proceedings the following facts were established. In
1990, Ms. C. began a "telephone" relationship with a
former high school classmate named Russell Lester. The record
indicates that Mr. Lester is confined to a wheelchair.See footnote 4 4 From
1990 to 1993, Ms. C. and Mr. Lester spoke on the telephone
approximately one hour each day, every day of the week.See footnote 5 5 Mr.
C. was unaware of the telephone conversations.See footnote 6 6
Two of Ms. C.'s neighbors used a police scanner to regularly listen in on Ms. C.'s (cordless) telephone conversations with Mr. Lester. The two neighbors testified that they frequently heard Ms. C. and Mr. Lester talking about their sexual activity. The neighbors also testified they heard Ms. C. and Mr. Lester making plans for additional rendezvous. Testimony was also introduced showing that Ms. C. routinely left her child
in the care of babysitters for hours at a time.See footnote 7 7
In 1991, Mr. Lester was indicted by a
Logan County grand jury on a felony sex charge involving a minor.See footnote 8 8 During
a search of Mr. Lester's vehicle a state trooper found a nude
photograph of Ms. C., depicted in a wooded area. No explanation
was given at trial as to how Mr. Lester gained possession of the
photograph.See footnote 9 9
There was also evidence that Ms. C. incurred large debts,
without Mr. C.'s knowledge. In fact, the evidence revealed that
Ms. C. forged Mr. C.'s name in order to obtain the loans.See footnote 10 10
The circuit court, by order entered February 9, 1996, adopted the family law master's recommendation that the divorce be granted to Mr. C. on the grounds of adultery, that Mr. C. be awarded custody of the parties' child, and that the marital property be equitably divided in a manner to compensate Mr. C. for the loss incurred as a result of Ms. C. forging his signature to obtain loans. Ms. C. timely appealed the circuit court's
rulings.
II.
STANDARD OF REVIEW
We indicated in
syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263,
460 S.E.2d 264 (1995) that:
[i]n reviewing
challenges to findings made by a family law master that also were
adopted by a circuit court, a three-pronged standard of review is
applied. Under these circumstances, a final equitable
distribution order is reviewed under an abuse of discretion
standard; the underlying factual findings are reviewed under a
clearly erroneous standard; and questions of law and statutory
interpretations are subject to a de novo review.
See also Syl. Pt. 4, Burgess v. Porterfield, 196
W.Va. 178, 469 S.E.2d 114 (1996) ("This Court reviews the
circuit court's final order and ultimate disposition under an
abuse of discretion standard. We review challenges to findings of
fact under a clearly erroneous standard; conclusions of law are
reviewed de novo.").
We held in syllabus point 3 of Stephen L.H. v. Sherry L. H., 195 W.Va. 384, 465 S.E.2d 841 (1995) that "[u]nder the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a [reviewing] court may be
inclined to make different findings or draw contrary
inferences." On the other hand, "[a] finding is
'clearly erroneous' when although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed." Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995), quoting, United States v. United
States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948). With these principles in view, we examine
Ms. C.'s three assignments of error.
III.
DISCUSSION
A.
The Evidence Was Sufficient to Prove
Adultery
The circuit court
found that there was clear and convincing evidence that Ms. C.
engaged in sexual intercourse with Mr. Lester prior to the filing
of the divorce complaint. We held in syllabus point 3 of Rohrbaugh,
that "[w]hen adultery is relied upon as a ground for
divorce, evidence which is sufficiently strong, clear and
convincing to carry conviction of guilt to the judicial mind will
warrant a decree of divorce on that ground." See Syl.
Pt. 4, Wolfe v. Wolfe, 120 W.Va. 389, 198 S.E. 209 (1938)
(In part: "The charge of adultery in a divorce suit must be
proven by clear, positive and satisfactory evidence."). It
was noted in one commentary that "the burden of proof [of
adultery] varies
from a preponderance of the evidence in some states to beyond
a reasonable doubt in others." Adriaen M. Morse Jr., Fault:
A Viable Means of Re-injecting Responsibility in Marital
Relations, 30 U. Rich. L. Rev. 605, 609 (1996). E.g., Brooks
v. Brooks, 652 So. 2d 1113 (Miss. 1995) (clear and
convincing); Gamer v. Gamer, 429 S.E.2d 618 (Va. Ct.App.
1993) (clear and convincing); Crawford v. Crawford, 633 A.2d 155 (Pa.Super. 1993) (clear and convincing); Perry v.
Perry, 390 S.E.2d 480 (S.C. Ct.App. 1990) (preponderance); Gilliam
v. Gilliam, 776 S.W.2d 81 (Tenn. Ct.App. 1988)
(preponderance); Clements v. Clements, 342 S.E.2d 463 (Ga.
1986) (preponderance); Bell v. Bell, 691 S.W.2d 184 (Ark.
Ct.App. 1985) (preponderance); Ross v. Ross, 648 P.2d 1119
(Idaho 1982) (clear and convincing); Miller v. Miller, 306 S.W.2d 175 (Tx. Civ.Ct.App.--San Antonio 1957) (clear and
convincing).
In reviewing the divorce cases decided by this Court within the past twenty years, we have found only a few cases involving divorces that were granted solely on the grounds of adultery. See Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991) (granted a divorce on the sole ground of adultery); Bridgeman v. Bridgeman, 182 W.Va. 677, 391 S.E.2d 367 (1990) (divorce on grounds of adultery); Blevins v. Shelton, 181 W.Va. 544, 383 S.E.2d 509 (1989) (granted divorce on the ground of adultery); Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848 (1980) (grounds for divorce being adultery); Stacy v. Stacy, 175 W.Va. 247, 332 S.E.2d 260 (1985) (per curiam) (divorce on the grounds of
adultery); Taylor v. Taylor, 168 W.Va. 519, 285 S.E.2d 150 (1981) (per curiam) (divorce on the grounds of adultery).
None of our recent cases provide any meaningful discussion
regarding the elements of proof necessary for a court to grant a
divorce on the ground of adultery.
Adultery is not an inconsequential ground for divorce. "Public policy has long condemned adultery as the cardinal sin of marital misconduct.... [N]o violation of the marital vow is more serious or destructive to a marriage than adultery." Joyce Hens Green, John V. Long, Roberta L. Murawski, Dissolution of Marriage § 1.1 at 17 (1986). A heavy fault price is paid in this state by a party found to have engaged in adulterous conduct. In fact, the legislature has set out only three grounds, in W.Va. Code § 48-2- 15(i) (1996), as an absolute bar to alimony.See footnote 11 11 One of those grounds is adultery.See footnote 12 12 It appears that only three other jurisdictions join West Virginia in making adultery a complete
bar to alimony.See
footnote 13 13
As a basis for divorce, adultery is a ground for divorce in a majority of jurisdictions.See footnote 14 14 The severe consequences of adultery make it imperative that the evidence presented at the trial court level clearly establish that the adulterous conduct occurred. Of course, the mere showing of adultery may not be conclusive as grounds for granting a divorce. In fact, the legislature has articulated specific exceptions to granting a divorce on the grounds of adultery, even where there is a showing of illicit conduct. W.Va. Code § 48-2-14 (1996) prohibits the granting of a divorce on the basis of adultery if any of the following are presented and established as a defense: (1) the two spouses voluntarily cohabited after having knowledge of the adultery, (2) evidence of adultery is based solely upon the uncorroborated testimony of a prostitute or a participant in the affair, (3) the last
adulterous act occurred three years before the complaint for
divorce was filed, (4) the spouse charging adultery also
committed adultery within three years before filing the
complaint, (5) the act of adultery was committed due to
connivance or procurement by the spouse bringing the charge, or
(6) the adultery was condoned by the party charging the other
with adultery. Our cases have not previously made clear, however,
that the statutory defenses to adultery are affirmative defenses
which must be proven by clear and convincing evidence by the
party asserting the defense or defenses. See Palin v.
Palin, 624 N.Y.S.2d 630 (1995) (condonation affirmative
defense to adultery); Seltzer v. Seltzer, 584 So. 2d 710
(La. Ct.App. 1991) (mental illness affirmative defense to
adultery); Parker v. Parker, 519 So. 2d 1232 (Miss. 1988)
(recrimination affirmative defense to adultery); Oyler v.
Oyler, 358 S.E.2d 170 (S.C. Ct.App. 1987) (recrimination and
condonation affirmative defenses to adultery); Haring v.
Haring, 260 N.E.2d 396 (Ill.Ct.App.2d 1970) (recrimination
affirmative defense to adultery).
In the instant
proceeding there was no evidence presented by Ms. C. to establish
any of the statutory affirmative defenses to the allegation of
adultery. The record does not indicate if or when the parties
stopped living together once Mr. C. became aware of Ms. C.'s
adulterous conduct. However, this issue is not dispositive on the
affirmative defense of condonation.
As
a defense in a divorce action, condonation means ... forgiveness
of an antecedent matrimonial offense on condition that it shall
not be repeated, and that the offender shall thereafter treat the
forgiving party with conjugal kindness. To establish condonation,
there generally must be proof of reconciliation, which implies
normal cohabitation of the husband and wife in the family home.
Nemeth v. Nemeth, 481 S.E.2d 181, 185 (S.C. Ct.App.
1997) (internal quotation marks and citations omitted). More
importantly here, however, is the principle of law which holds
that "[t]he mere resumption of residence does not constitute
a condonation of past martial sins and does not act as a bar to a
divorce being granted." Wood v. Wood, 495 So. 2d 503,
505 (Miss. 1986). Therefore, the fact that the parties lived in
the same residence after Mr. C. learned of the adulterous conduct
is insufficient to establish condonation as an affirmative
defense.
We have historically described "'[a]dultery [as] peculiarly a wrong of darkness and secrecy, wherein the parties are rarely surprised[.]'" Witt v. Witt, 141 W.Va. 43, 52, 87 S.E.2d 524, 529 (1955), quoting 6 M.J., Divorce and Alimony, Sec. 9. However, "[e]ven in this era of declining mores, adultery is usually [still] not committed in the presence of witnesses." Sibley v. Sibley, 693 So. 2d 1270, 1271 (La. Ct.App. 1997). Therefore, "adultery as a ground of divorce may be established by circumstantial evidence when such evidence is sufficient to lead a reasonable and prudent person to a conclusion of guilt." Rohrbaugh, 136 W.Va. at 718, 68 S.E.2d at 368. See Nemeth, 481 S.E.2d at
183 ("[B]ecause adultery is an activity that takes place
in private, the proof may be, and in fact generally will be,
circumstantial."). The historical necessity for proving
adultery by circumstantial evidence rings true today. It is
simply a ground for divorce that generally will not avail itself
of direct evidence. Nevertheless, "[a]dultery is a serious
accusation ...[and] cannot be proved by second hand gossip or
allegations of 'community knowledge.'" Emfinger v.
Emfinger, 550 So. 2d 754, 759 (La. Ct.App. 1989). "When
the evidence relied on to prove adultery is circumstantial it
should be carefully scrutinized and acted upon with caution, and
it must be such as to convince the 'guarded discretion' of the
[fact finder] that the act has been committed." Witt,
141 W.Va. at 52, 87 S.E.2d at 141, quoting 6 M.J., Divorce and
Alimony, Sec. 9. The evidence "in such cases ... must be
logical, tend to prove the facts charged, and be inconsistent
with a reasonable theory of innocence." Holden v. Holden,
680 So. 2d 795, 799 (Miss. 1996).
The appellate court in Sibley, supra, isolated recurrent themes in the circumstantial proof of adultery and listed them as factors trial courts should look for in determining whether to grant a divorce on the basis of adultery. The factors Sibley deemed appropriate for consideration in assessing circumstantial proof of adultery include: (1) the propensity of the parties (spouse and alleged paramour) to commit adultery, (2) the amount of time the parties spent together, (3) whether there was an amorous relationship between the parties, (4) whether other persons were present when an alleged illicit rendezvous
occurred, and (5) whether the association between the parties
is open or surreptitious. Sibley, 693 So. 2d at 1271. See
Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss. 1997) (where
it was held that circumstantial proof of adultery may be shown by
establishing that there was (1) an infatuation for a particular
person of the opposite sex, and (2) a reasonable opportunity to
satisfy that infatuation); Sami v. Sami, 347 A.2d 888, 893
(Md. Ct.App. 1976) (to establish adultery the circumstantial
evidence must clearly establish (1) a disposition on the part of
the defendant and the paramour to commit adultery, and (2) an
opportunity to commit the offense). We believe the Sibley
factors are consistent with the necessary circumstantial evidence
required to prove adultery. We therefore adopt the Sibley
factors as circumstantial proof of adultery. We hasten to point
out that the Sibley factors are additional tools of
analysis and not the sole criteria for evaluating circumstantial
evidence to prove adultery.
The record clearly indicates that all evidence of adultery in this case was circumstantial. No one testified to actually seeing Ms. C. and Mr. Lester during an illicit rendezvous. Ms. C. and Mr. Lester testified that they did not engage in an illicit relationship. However, Ms. C.'s own testimony established that she spoke on the telephone with Mr. Lester every day of the week for at least an hour. Ms. C. claimed that her conversations with Mr. Lester were only about "family." The family law master heard contradicting testimony from witnesses who overheard many of the conversations
between Ms. C. and Mr. Lester. According to the testimony of
these witnesses, they repeatedly overheard Ms. C. and Mr. Lester
talking about their prior sexual encounters. Moreover the
witnesses testified to overhearing Ms. C. and Mr. Lester make
plans to rendezvous for additional illicit encounters. There was
testimony that, prior to and after the complaint for divorce was
filed, Ms. C. was seen in public riding in a vehicle with Mr.
Lester. Finally, Mr. Lester was arrested on an unrelated charge
by state police officers. The state police officers found a nude
photograph of Ms. C. in Mr Lester's vehicle. Neither Ms. C. nor
Mr. Lester explained how Mr. Lester came into possession of the
nude photograph. However, the evidence did reveal that Mr. Lester
was an amateur photographer.
The most
significant issue for this Court to consider in reviewing the
evidence in this case is that much of the circumstantial evidence
turned on witness credibility. We said in Stephen L.H. v.
Sherry L.H., 195 W.Va. 384, 395-96, 465 S.E.2d 841, 852-53
(1995):
There
are many critical aspects of an evidentiary hearing which cannot
be reduced to writing and placed in a record, e.g., the demeanor
of witnesses. These factors may affect the mind of a trier of
fact in forming an opinion as to the weight of the evidence and
the character and credibility of the witnesses. Thus, the
importance of these factors should not be ignored by a reviewing
court. Given a family law master's intimate familiarity with the
proceedings, the family law master is in the best position to
weigh evidence and assess
credibility in making the ultimate ruling on disputed issues.
A reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will
not, second guess such determinations. See Merriam v.
Merriam, 799 P.2d 1172, 1176 (Utah Ct.App. 1990) ("[D]ue
regard must be given to the trial court's ability to judge the
credibility of witnesses."). Therefore, "we have no
hesitation in holding that the [family law master], whose duty it
was to pass upon the credibility of the witnesses ..., could here
properly find facts from" which to recommend a divorce on
the grounds of adultery. Castle v. Castle, 100 A.2d 574,
575 (Vt. 1953). In light of the impact of witness credibility in
this particular case, and the strong circumstantial evidence in
general, we find no error in the circuit court granting the
divorce on the basis of adultery.
B.
Mr. C. Was Properly Awarded Custody
The circuit
awarded child custody to Mr. C. The child has been in the custody
of Mr. C. since the filing of the divorce complaint.See footnote 15 15 However,
the record is clear that Ms. C., prior to the initiation of this
divorce proceeding, was the primary caretaker. We said in
syllabus point 2 of Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981) that "[w]ith reference to the custody of
very young children, the law presumes that it is in
the best interests of such children to be placed in the
custody of their primary caretaker, if he or she is fit." In
syllabus point 4 of J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978) we held:
Acts
of sexual misconduct by a mother, albeit wrongs against an
innocent spouse, may not be considered as evidence going to the
fitness of the mother for child custody unless her conduct is so
aggravated, given contemporary moral standards, that reasonable
men would find that her immorality, per se, warranted a finding
of unfitness because of the deleterious effect upon the child of
being raised by a mother with such a defective character.
See Smothers v. Smothers, 281 So. 2d 359, 360 (Fla.
1973) ("[A]dultery on the part of a mother--in and of
itself--will not necessarily disqualify her to have custody of
her children.").
The findings
of fact by the family law master, adopted by the circuit court,
concluded that defendant's conduct in repeatedly abandoning the
child to babysitters in order to rendezvous with Mr. Lester,
pressed heavily against awarding her custody of the child.
We believe, and so conclude, that evidence of a spouse abandoning a child to a babysitter or leaving the child alone for extended periods of time for the sole purpose of keeping a rendezvous with a paramour for an illicit relationship are factors for the court
to consider when making a custody determination.
In the instant
proceeding, Mr. C. established by clear and convincing evidence
that Ms. C. should not have custody of the child, by presenting
evidence of many instances wherein she abandoned the child to
babysitters to rendezvous with her paramour. Likewise, there was
absolutely no evidence presented to the court to show that Mr. C.
was incapable of providing proper care for the child.
An additional
basis for affirming the custody decision of the circuit court in
this case is the fact that the child (now thirteen) expressed a
desire to remain in the custody of her father. In syllabus point
7 of Garska we said, in part:
Where
there is a child under fourteen years of age, but sufficiently
mature that he [she] can intelligently express a voluntary
preference for one parent, the trial judge is entitled to give
that preference such weight as circumstances warrant, and where
such child demonstrates a preference for the parent who is not
the primary caretaker, the trial judge is entitled to conclude
that the presumption in favor of the primary caretaker is
rebutted.
The courts below took due notice of the child's preference in the
decision to award custody to Mr. C. Our observations in Holstein
v. Holstein, 152 W.Va. 119, 127, 160 S.E.2d 177, 183 (1968)
are relevant to the disposition of this issue:
The
court has continuing jurisdiction over the matter of the custody
of children. It should not, however, upon the hope
that all will be well, change the custody unless there is
valid evidence that such change is warranted. Stability and a
feeling of permanence in his[/her] home life is essential to the
well being of a child. He[/She] should not be passed from one
parent to the other and back again unless such move is warranted
by the evidence.
We find no reason to disturb the circuit court's custody ruling
in this case.
C.
The Record Fails to Adequately Document the
Distribution of Marital Property
The final issue
before us is the matter of distribution of marital property. We
pointed out in syllabus point 1 of Whiting v. Whiting, 183
W.Va. 451, 396 S.E.2d 413 (1990) that:
[e]quitable
distribution under W.Va. Code, 48-2-1, et seq., is a three-step
process. The first step is to classify the parties' property as
marital or nonmarital. The second step is to value the marital
assets. The third step is to divide the marital estate between
the parties in accordance with the principles contained in W.Va.
Code, 48-2-32.
Ms. C. contends that the circuit court committed error in
reducing the value of her share of the marital property in an
amount proportionate to the debt she incurred prior to the
divorce by forging Mr. C.'s name to obtain loans. We held in
syllabus point 1 of Somerville v. Somerville, 179 W.Va.
386, 369 S.E.2d 459 (1988) that:
In
the absence of a valid agreement, the trial court in a divorce
case shall presume that all marital property is to be divided
equally between the parties, but may alter this distribution,
without regard to fault, based on consideration of certain
statutorily enumerated factors, including: (1) monetary
contributions to marital property such as employment income,
other earnings, and funds which were separate property; (2)
non-monetary contributions to marital property, such as homemaker
services, child care services, labor performed without
compensation, labor performed in the actual maintenance or
improvement of tangible marital property, or labor performed in
the management or investment of assets which are marital
property; (3) the effect of the marriage on the income-earning
abilities of the parties, such as contributions by either party
to the education or training of the other party, or foregoing by
either party of employment or education; or (4) conduct by
either party that lessened the value of marital property.
W.Va. Code Sec. 48-2-32(c) (1986). (Emphasis added.)
The record in
this case prevents this Court from reviewing the issue of marital
property. We said in syllabus point 2 of Somerville that
"[i]n any order making a division of marital property, the
trial court must set out in detail its findings of fact and
conclusions of law, and the reasons for dividing the property in
the manner adopted. W.Va. Code Sec. 48-2-32(f) (1986)." We
addressed the consequences of an inadequate final order in a
divorce proceeding in Province v. Province, 196 W.Va. 473,
483, 473 S.E.2d 894, 904 (1996), wherein it was said that:
[t]he order must
be sufficient to indicate the factual and legal basis for the
family law master's ultimate conclusion so as to facilitate a
meaningful review of the issues presented. Where
the lower tribunals fail to meet this standard--i.e. making
only general, conclusory or inexact findings--we must vacate the
judgment and remand the case for further findings and
development.
Neither the
circuit court's final order nor the adopted recommended order of
the family law master indicate with any specificity the amount of
money Ms. C. dissipated from the marital estate. The recommended
order only states that Ms. C. is to receive twenty-five thousand
dollars as her share of the real property, after deducting the
fraudulently incurred debts. The record is void of any amount of
debt incurred by Ms. C. We recently stated in Pearson v.
Pearson, ___ W.Va. ___, ___, 488 S.E.2d 414, 421 (1997) that:
[e]vidence
presented in a divorce case must be consistent with our Rules of
Civil Procedure, Rules of Evidence and Rules of Practice and
Procedure for Family Law. A divorce proceeding is not an
opportunity for lawyers to circumvent our procedural and
evidentiary rules. Those rules are applicable in divorce actions
with the same force and vibrancy as in any other civil
proceeding.
As we said in syllabus point 8 of Mayhew v. Mayhew, 197 W.Va. 290, 475 S.E.2d 382 (1996), "[t]he burden is on both parties to the litigation to adduce competent evidence on the values to be assigned in equitable distribution cases." Therefore, the issue of marital property is reversed and remanded for the sole purpose of setting out adequate findings on
the distribution of marital property.See footnote 16 16
IV.
CONCLUSION
In view of the
foregoing, we affirm that part of the circuit court's final order
granting a divorce on the grounds of adultery and awarding
custody of the child to Mr. C. We reverse the circuit court's
ruling on the issue of distribution of marital property. We
remand the same for the sole purpose of having adequate findings
of fact on this issue made a part of the final divorce decree.
Affirmed
in part, Reversed in part,
and
Remanded.
Footnote: 1 1 We adhere to our usual practice in family law cases involving sensitive matters and do not use the last names of the parties. See State ex rel. Diva P. v. Kaufman, ___ W. Va. ___, ___ n.2, ___ S.E.2d ___, ___ n.2, slip op. at 1 n.2 (No. 23928 July 11, 1997); Elmer Jimmy S. v. Kenneth B., 199 W. Va. 263, ___ n.1, 483 S.E.2d 846, 851 n.1 (1997); In the Interest of Tiffany Marie S., 196 W. Va. 223, 226 n.1, 470 S.E.2d 177, 180 n.1 (1996).
Footnote: 2
2 There was a
fourth assignment of error that is meritless. Ms. C. contends she
was denied due process because the family law master heard
"tainted" testimony that she tried to poison Mr. C. The
recommendation of the family law master specifically stated that
plaintiff's belief that Ms. C. tried to kill him was
unsubstantiated and without merit. See Syl. Pt. 1, Rohrbaugh
v. Rohrbaugh, 136 W.Va. 708, 68 S.E.2d 361 (1951) overruled
on another ground by, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978) ("When a case is tried by a court in lieu
of a jury, it is not an error, for which the appellate court will
reverse, to hear illegal testimony, if there be enough legal
testimony to justify the judgment.").
Footnote: 3 3 Ms. C. was employed for seven years with Sears.
Footnote: 4 4 Ms. C.'s brief alleges Mr. Lester is paralyzed from the waist down. Mr. C.'s brief states that Mr. Lester is paralyzed from the knees down.
Footnote: 5 5 Ms. C. testified that the conversations were about "family."
Footnote: 6 6 There was testimony that in 1993, while Mr. C. was hospitalized for stomach problems (he believed Ms. C. tried to poison him), Ms. C. frequently called Mr. Lester from the hospital during her visits with Mr. C.
Footnote: 7 7 There was also testimony that Ms. C. was seen publicly on several occasions with Mr. Lester both before and during the divorce proceedings.
Footnote: 8 8 Mr. Lester was allowed to plead guilty to a misdemeanor charge of sexual abuse in the third degree.
Footnote: 9 9 Ms. C. alleged that Mr. C. took the picture. Mr. C. denied having ever seen the picture. There was testimony that Mr. Lester's hobby was photography.
Footnote: 10 10 During several depositions of Ms. C., she invoked her right against self-incrimination over one hundred times in response to questions about forging Mr. C.'s signature.
Footnote: 11 11 See Syl. Pt. 1, Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991) ("In enacting our equitable distribution statute, the Legislature did not intend fault to be considered as a factor in determining the division of marital property. However, the Legislature did designate marital fault as a factor to be considered in awarding alimony under the provisions of W.Va. Code, 48-2-15(i).").
Footnote: 12 12 W.Va. Code § 48-2-15(i) precludes alimony to a party who (1) committed adultery, (2) was convicted of a felony subsequent to the marriage, or (3) abandoned or deserted the other party for six months. See Syl. Pt. 7, Kyle v. Kyle, 197 W.Va. 252, 475 S.E.2d 344 (1996) ("Desertion is a ground for the outright denial of alimony only if that is the ground upon which the divorce is actually granted."); Syl. Pt. 2, Rexroad v. Rexroad, 186 W.Va. 696, 414 S.E.2d 457 (1992) (In Part: "W.Va. Code, 48-2-15(i) bars a person from alimony ... where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final[.]").
Footnote: 13 13 "[A]dultery is a complete bar to alimony ... in Georgia, North Carolina, [and] South Carolina[.]" Ira Mark Ellman, The Place of Fault in A Modern Divorce Law, 28 Arz. St. L.J. 773, 787 n.30 (1996).
Footnote: 14 14 See Ala. Code § 30-2-1(a)(2) (1989); Alaska Stat. § 25.24.050(2) (1996); Ark. Stat. Ann. § 9-12-301(5) (1993); Conn. Gen. Stat. Ann. § 46b-40(c)(3) (1995); Del. Code Ann. tit. 13, § 1505(b)(2) (1993); D.C. Code Ann. § 16-904 (b)(3) (1997); Ga. Code Ann. § 19-5-3(6) (1991); Idaho Code § 32-604 (1996); 750 Ill. Ann. Stat. § 5/501(a)(1) (1993); La. Civ. Code Ann. art. 103(2) (1993); Me. Rev. Stat. Ann. tit. 19, § 691(1)(A) (1981); Md. Fam. Law Code Ann. § 7- 103(a)(1) (1991); Mass. Ann. Laws ch. 208, § 1 (1987); Miss. Code Ann. § 93-5-1 (1994); N.H. Rev. Stat. Ann. § 458:7 (II) (1992); N.J. Stat. Ann. § 2A:34-2(a) (1987); N.M. Stat. Ann. § 40-4- 1(c) (1994); N.Y. Dom. Rel. Law § 170(4) (1988); N.D. Cent. Code § 14-05-03(1) (1991); Ohio Rev. Code Ann. § 3105.01(c) (1995); Okla. Stat. Ann. tit. 12, § 1271 (1988); Pa. Con. Stat. Ann. tit. 23, § 3301(a)(2) (1991); R.I. Gen. Laws § 15-5-2 (1996); S.C. Code Ann. § 36-4-101(3) (1996); S.D. Codified Laws Ann. § 25-4-2(1) (1992); Tenn. Code Ann. § 36-4-101(3) (1996); Tex. Fam. Code Ann. § 3.03 (1993); Utah Code Ann. § 30-3-1(3)(b) (1995); Vt. Stat. Ann. tit. 15, § 551(1) (1989); Va. Code § 20-91(1) (1996).
Footnote: 15 15 The record indicates that Mr. C. has remarried.
Footnote: 16 16 The circuit court or family law master may take additional evidence, if necessary, solely for the purpose of making appropriate calculations to reduce Ms. C.'s entitlement to marital property in the exact amount determined to have been fraudulently dissipated from the marital estate.
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