Ortner v. Pritt
Annotate this Case
January 1992 Term
___________
No. 20890
___________
MELINDA ANN (BRADLEY) ORTNER,
Plaintiff Below, Appellee
v.
AMY PRITT,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Boone County
Honorable E. Lee Schlaegel, Jr., Judge
Civil Action No. 87-C-415
REVERSED
___________________________________________________
Submitted: May 6, 1992
Filed: July 17, 1992
Peter A. Hendricks
Madison, West Virginia
Attorney for the Appellant
No appearance for Appellee
This Opinion was delivered PER CURIAM
SYLLABUS BY THE COURT
"'If a child has resided with an individual other than a
parent for a significant period of time such that the non-parent
with whom the child resides serves as the child's psychological
parent, . . . the equitable rights of the child must be considered
in connection with any decision that would alter the child's
custody. To protect the equitable rights of a child in this
situation, the child's environment should not be disturbed without
a clear showing of significant benefit to him. . . .' Syl. Pt. 4,
in part, In the Interest of Brandon L.E. [183 W. Va. 113], 394 S.E.2d 515 (W. Va. 1990)." Syl., State of FLA., DHRS v. Thornton,
183 W. Va. 513, 396 S.E.2d 475 (1990).
Per Curiam:
This is an appeal by Amy Pritt from an order entered by
the Circuit Court of Boone County on November 1, 1990, in a
proceeding involving the custody of her infant grandson, John
McKinley Pritt, II. The circuit court ordered that, after a
transition period, the child should be removed from the actual
physical custody of the appellant, and that custody be vested in
the infant's mother, Melinda Ann (Bradley) Ortner. On appeal, the
appellant argues that the trial court's conclusions were incorrect,
and that the trial court erred in transferring custody of the child
to Mrs. Ortner. Under the circumstances in this case, we find that
it is in the best interests of the child that custody be vested in
Amy Pritt.
We note at the outset that the record in this case is
incomplete. A transcript of the evidence before the trial court
was unable to be obtained despite a writ of mandamus issued by this
court ordering transcription of the proceedings below.
Furthermore, Mrs. Ortner has not participated in these appeal
proceedings. The trial court did not enter a final order in this
case for well over three years after this action was instituted.
Time was further extended upon appeal in the unsuccessful effort to
obtain the transcript. Despite the great length of time over which
this case has been in litigation, we are limited in our review of
the facts to three depositions, various psychological reports
concerning John Pritt, II, home studies performed upon the parties
at the request of the trial court, and the testimony before the
trial court as recounted by the appellant's counsel.
John McKinley Pritt, II, was born on February 14, 1983 to
John Pritt, Sr. and Melinda Ann (Bradley) Ortner. After the birth
of their child, Mr. Pritt and Mrs. OrtnerSee footnote 1 and their child resided
with the appellant, Amy Pritt, in Boone County, West Virginia.
However, on October 5, 1983, Mr. Pritt died of a heart attack.
Mrs. Ortner thereafter moved from the residence of Amy Pritt into
a rented trailer of her own.
Mrs. Ortner married Michael Bradley on November 9, 1984.
One child, Chrissy, was born of that marriage in February, 1985.
Mrs. Ortner and Mr. Bradley apparently separated in May, 1987, and
divorced sometime thereafter.
The evidence before this Court is unclear as to how much
time John Pritt, II, spent with either Mrs. Ortner or Amy Pritt
prior to the institution of these proceedings by Mrs. Ortner in
August, 1987. What can be gleaned from the record is that John,
II, spent a considerable amount of time under the care of his
grandmother, Amy Pritt, and at one point spent several months under
her care when his mother was out of state.See footnote 2
On August 31, 1987, Mrs. Ortner petitioned the Circuit
Court of Boone County for a writ of habeas corpus to issue against
Kathy Pritt Clendenin, daughter of Amy Pritt, ordering Mrs.
Clendenin to produce John, II, at a September 9, 1987 hearing. The
writ was issued. At the September 9, 1987 hearing Amy Pritt was
added as a respondent.See footnote 3 She and Mrs. Clendenin responded that
John, II, had been in their continuous care since August 12, 1986
at the insistence of Mrs. Ortner. Nonetheless, the trial court
issued a temporary order, entered December 15, 1987, vesting the
custody of John, II, in Mrs. Ortner.
The trial court issued an "Order Upon Writ for Habeas
Corpus" on April 5, 1988. Said order decreed that John, II, be
removed from the custody of Mrs. Ortner and temporarily placed in
the custody of Amy Pritt and Mrs. Clendenin. Mrs. Ortner was
granted "reasonable visitation rights . . . bearing in mind that
said petitioner shall not remove or otherwise cause said child to
be removed from the State of West Virginia while exercising her
visitation rights."See footnote 4 The trial court's rationale for the temporary
order was its finding that "[Mrs. Ortner's] situation and
circumstances [are] so unstable as to find it in the child's best
interests to be placed with [Amy Pritt and Mrs. Clendenin]."
Apparently the trial court made this finding based upon a home
study done of Mrs. Ortner's Boone County residence which questioned
the stability of Mrs. Ortner's household.
The home study performed on Mrs. Ortner's home in Boone
County noted that the home was a two-bedroom trailer that "looked
clean and had a partially fenced yard." The report noted that
John, II, and Chrissy, who were in Mrs. Ortner's custody at that
time, "appeared clean, healthy and happy."
The home study performed on Amy Pritt's home stated that
her residence was a "neat and well-maintained" three-bedroom ranch
style home, with a yard and swing set. The report opined that
"[Amy Pritt] seems sensible and mature . . . she seems emotionally
and financially stable, and capable of providing a good home for a
child."
The April 5, 1988 temporary order of the trial court also
directed that John, II, undergo counseling services at Shawnee
Hills clinic in Boone County and that a report be forthcoming
concerning findings made by those counselors. There is no report
from Shawnee Hills clinic in the record before this Court.See footnote 5 The
record does reveal, however, that John, II, was admitted to
Highland Hospital of Boone County in July, 1988, for a period of
several weeks, and during that time came under the care of Dr.
Stephen Kissinger, a psychiatrist, and William Hall, M.A., a
psychologist.
In a September 1, 1988 deposition, Mr. Hall opined:
I don't believe that John will ever perceive
his biological mother as a mom. I don't
believe that he will ever perceive her as
entirely nurturing, loving, and someone to be
trusted to have his best interests at heart.
I would hope that there -- I think it is
probably unrealistic to ever expect John and
his mother to develop a so-called normal
mother/son bond; I don't believe that's going
to happen.
Mr. Hall further recommended that John, II, be placed in the
custody of Amy Pritt and Mrs. Clendenin, based on his observation
of an "obvious psychological bond" existing between those parties.
Also in a September 1, 1988 deposition, Dr. Kissinger
noted that "John talked about being hurt by his mother. And when
she would call the unit, we would see his behavior deteriorate, in
terms of becoming more aggressive, louder." He further opined
that:
In terms of placement as we speak, based on
what we know now, it appears from our
experience with John that he would feel more
comfortable with Amy and Kathy rather than his
mother. That's not to say that at some point
in the future, given therapy or deal with the
mother, with the mother and the son, that that
might at some time be at least as good; that's
not true at the present time.
At some point in late 1987 or early 1988, Mrs. Ortner left Boone County and returned to her native Alabama. In June, 1988, she married Mark Ortner. At the request of the trial court, the Madison County, Alabama, Department of Human Resources conducted a home study of Mrs. Ortner's new home. The report,
dated August 16, 1988, stated that Mr. and Mrs. Ortner "seem
willing and capable to assume responsibility for the physical or
emotional needs of Mrs. Ortner's children . . ." A home study
update completed October 13, 1989 recommended that John, II, be
placed with Mr. and Mrs. Ortner. The former home study noted that
a February, 1988 visit to Mrs. Ortner's residence, when John, II,
was in her custody, "determined that there were no problems with
physical care and discipline that John was receiving while in his
mother's care."
The record also reveals the deposition testimony of
Cornelia Turnbow, a psychotherapist from Huntsville, Alabama. Mrs.
Turnbow stated that she had seen Mrs. Ortner for 39 counseling
sessions over the previous year. The counseling was initiated to
help Mrs. Ortner deal with the stress of the litigation concerning
the custody of John, II and Chrissy Bradley.See footnote 6 Mrs. Turnbow
concluded from her observations of Mrs. Ortner, and Mrs. Ortner's
relationship with Chrissy Bradley and Nicole OrtnerSee footnote 7 that:
From what I have observed and from what
she has, you know, related to me, which is all
I can base it on, I can see her as a very
warm, loving mother who has a large amount of
patience with these two young children and
who's very concerned about their well-being,
you know, and their care.
On November 1, 1990, the trial court entered its final
order in this case. The trial court made, among others, the
following findings of fact:
Prior to this issue coming to Court, both
parties had some physical custody of the
infant child and maintained varying degrees of
control over the infant child and his needs;
therefore, the Court finds that neither party
is the primary caretaker.
[Mrs. Ortner] has not committed
misconduct, neglect or immorality as to
establish unfitness and has not abandoned,
transferred, or otherwise surrendered custody
of the infant child to [Amy Pritt].
It is in the best interest of the infant
child to be in the custody of his natural
mother, [Mrs. Ortner].
The trial court ordered that custody be vested in Mrs. Ortner,
following a transition period to allow John, II, to obtain
counseling to prepare him for the change of custody. This appeal
followed.
Importantly, it has been represented to this Court that
John, II, is still in the custody of Amy Pritt. Mrs. Ortner has
taken no action to physically take custody of John, II, nor has she
participated in these appellate proceedings.See footnote 8 In fact, her trial
counsel was forced to withdraw from this case without her consent
when she moved from her former residence in Alabama and left no
forwarding address. She has made no inquiry concerning the status
of this case with her trial counsel, trial counsel's former law
firm, or this Court.
In the syllabus of State of FLA., DHRS v. Thornton, 183
W. Va. 513, 396 S.E.2d 475 (1990), we held:
'If a child has resided with an
individual other than a parent for a
significant period of time such that the non-parent with whom the child resides serves as
the child's psychological parent, . . . the
equitable rights of the child must be
considered in connection with any decision
that would alter the child's custody. To
protect the equitable rights of a child in
this situation, the child's environment should
not be disturbed without a clear showing of
significant benefit to him. . . .' Syl. Pt.
4, in part, In the Interest of Brandon L.E.
[183 W. Va. 113], 394 S.E.2d 515 (W. Va.
1990).
The evidence in the record before this Court shows that
John, II has resided with his grandmother for a significant period
of time. The only psychiatric and psychological evidence of record
shows that Amy Pritt is the child's "psychological parent." This
evidence is uncontradicted. In this situation, then, to protect
John, II's equitable rights, his "environment should not be
disturbed without a clear showing of significant benefit to him."
Thornton, supra. (emphasis added).
There is no evidence in the record showing that John, II,
would acquire a "significant benefit" by a change of custody as
awarded by the trial court. Nor did the trial court make such a
finding. And although we are hampered upon appellate review by a
lack of a transcript below, Mrs. Ortner has made no effort
whatsoever to show this Court any evidence that a change of custody
would be of "significant benefit" to John, II. Without any such
evidence, the change of custody ordered by the trial court must be
reversed.See footnote 9
Based upon the foregoing, the November 1, 1990 order of
the Circuit Court of Boone County is reversed.
Reversed.
Footnote: 1 Mr. Pritt and Mrs. Ortner did not marry.
Footnote: 2 The meager evidence before this Court suggests that
John, II, spent anywhere from one-half of his life up to 95% with
Amy Pritt. The trial court made no specific finding in this
regard, stating only that both parties had exercised some physical
custody and maintained varying degrees of control over John, II.
The trial court found that neither the mother nor the grandmother
was the "primary caretaker" of John, II.
Footnote: 3 Mrs. Clendenin was later dismissed as a respondent.
Footnote: 4 Counsel for appellant asserts that the visitation rights
of Mrs. Ortner were "restricted or guarded" and that this is a
reason for reversing the trial court. There is nothing in the
trial court's order granting temporary custody in Amy Pritt that
suggests the visitation rights of Mrs. Ortner were to be
"restricted or guarded" in any way. Furthermore, the trial court
specifically decreed that it "[made] no finding of fitness or
unfitness of [Mrs. Ortner]" at that time.
Footnote: 5 Pleadings before the trial court on behalf of Mrs.
Ortner assert that "[John, II] did have an initial intake interview
with Shawnee Hills on April 18, 1988, and the health professionals
were skeptical of [John, II's] history as related by [Amy Pritt]
and Mrs. Clendenin and found [John, II] to be 'remarkably intact.'"
Footnote: 6 At the time of Mrs. Turnbow's deposition, Mrs. Ortner
had been granted custody of her daughter, Chrissy Bradley.
Footnote: 7 Nicole Ortner is Mr. Ortner's child from a previous
relationship. She was living with Mr. and Mrs. Ortner at the time
of Mrs. Turnbow's deposition.
Footnote: 8 We note for the record that Rule 10(e) of the W. Va. R.
App. P., applicable to the instant case, states:
(e) Failure to File Brief. The failure
to file a brief in accordance with this rule
may result in the Supreme Court imposing the
following sanctions: refusal to hear the
case, denying oral argument to the derelict
party, dismissal of the case from the docket,
or such other sanctions as the Court may deem
appropriate.
Footnote: 9 Nothing in this opinion should be construed as limiting
the right of the infant child's natural mother to petition the
trial court at some later date for a modification of this custody
decree. As we stated in Tucker v. Tucker, 176 W. Va. 80, 82-83,
341 S.E.2d 700, 702 (1986):
In Phillips v. Phillips, 24 W. Va. 591 (1884), this Court recognized the right of a noncustodial parent to have a hearing on a petition to modify the child custody award made in a former divorce decree. We reaffirm that right and hold that under the due process clause, Article III, Section 10 of the West Virginia Constitution, a parent who files a petition for a change of child custody alleging sufficient grounds to warrant such change, Acord v. Acord, [164 W. Va. 562, 264 S.E.2d 848 (1980)] is entitled to a hearing on the merits of the petition.
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