Douglas A. Cornelius
Clarksburg, West Virginia
Attorney for the Appellant
Lou Ann Holland
Fairmont, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. "Under West Virginia Code § 48-2-15 (1986
Replacement Vol.), a circuit court may, in the divorce order,
provide for joint custody of minor children when the parties so
agree and when, in the discretionary judgment of the circuit court,
such an agreement promotes the welfare of the child." Syllabus
Point 1, Lowe v. Lowe, 179 W. Va. 536, 370 S.E.2d 731 (1988).
2. "A cardinal criterion for an award of joint custody
is the agreement of the parties and their mutual ability to co-operate in reaching shared decisions in matters affecting the
child's welfare." Syllabus Point 4, Lowe v. Lowe, 179 W. Va. 536,
370 S.E.2d 731 (1988).
3. "We do not authorize court-ordered joint custody
over the objections of a primary caretaker parent although parents
may agree to such an arrangement." Syllabus Point 8, David M. v.
Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
Alice R. McDougal, the plaintiff below, appeals two
orders of the Circuit Court of Marion County, dated April 15, 1991,
and August 15, 1991, which, over the plaintiff's objection, awarded
the plaintiff and the defendant below, James A. McDougal, joint
legal custody of their two infant children. The plaintiff contends
that the circuit court erred in refusing to adopt the finding of
the family law master which recommended that she be awarded sole
custody of the children. A further contention made by the
plaintiff is that the circuit court erred in refusing to make a
finding and conclusion that the plaintiff was entitled to a divorce
on the ground of the defendant's adultery. Instead, the trial
court granted a divorce on the fault-based ground of desertion.
The parties were married on July 20, 1963, and had five children, two of whom were under the age of eighteen years when this action was commenced. The parties last lived together in Marion County on January 9, 1989. At that time, the defendant left their home to take up residence with another woman who had previously given birth to twins. The defendant has admitted the paternity of these infants and that he bears the majority of fault for the marital breakup. Since the divorce, the defendant has married the mother of the twins.
The plaintiff first brought an action for separate
maintenance, but subsequently amended the complaint to include a
request for divorce. As grounds for divorce, the plaintiff alleged
that the defendant was guilty of desertion and adultery and that
the parties had lived separate and apart for more than one year.
The defendant counterclaimed for divorce on the grounds of cruel
and inhuman treatment and living separate and apart for more than
Following hearings, the family law master filed a
"Recommended Order of Divorce" finding that the plaintiff was the
primary caretaker of the children, was a fit and proper parent, and
should be granted custody of the children. The family law master
recommended that a divorce should be awarded on the ground of
separation for more than one year. The plaintiff filed a written
petition for review, and the circuit court conducted a hearing on
the petition on June 5, 1990. The circuit court then made various
findings of fact and conclusions of law granting the plaintiff a
divorce on the fault-based ground of desertion. However, the
circuit court refused to make a finding that the plaintiff was
entitled to a divorce on the ground of adultery.
At this hearing, the defendant presented an oral petition
for review as to custody of the children, and the circuit court
considered this petition over the plaintiff's objection. After
hearing the defendant's argument in support of his oral petition,
the circuit court, over the plaintiff's objection, directed the
parties and their children to be interviewed by a clinical
psychologist. This was done, and a report was submitted to the
On September 25, 1990, the defendant filed a "Motion for
Reconsideration of Custody." A hearing was conducted on this
motion on October 19, 1990, at which time one of the children of
the parties was interviewed in camera by the circuit court.
Following this interview, the circuit court directed that this
child again be interviewed by the psychologist.
On November 27, 1990, the circuit court received a
written report from the psychologist, and the hearing in these
matters resumed on December 14, 1990. At the conclusion of the
hearing, the circuit court, over the plaintiff's objection,
modified the previous custody order and awarded the parties' "joint
legal custody" of the children, with the plaintiff to have
"temporary physical custody" and the defendant to have specified
periods of visitation. The circuit court also announced that it
would conduct a final hearing on the issue of permanent child
custody in June of 1991.
Following a hearing on June 14, 1991, the circuit court
announced its decision not to alter its previous award of "joint
legal custody" as specified in the April 15, 1991 order. The
plaintiff now appeals both the order granting a divorce on the
ground of desertion and the order granting the parties joint legal
custody of the children.
We first addressed the issue of joint custody of a minor child in Lowe v. Lowe, 179 W. Va. 536, 370 S.E.2d 731 (1988), which presented a certified question from the Circuit Court of Berkeley County. In Lowe, the child had been declared a ward of the court during the protracted pendency of the divorce action, but had remained in the marital home, with the parents alternating occupancy every three days. At a hearing before the family law master, the parties were able to reach a complex joint custody agreement which was incorporated into the family law master's recommendation to the circuit court.
When a dispute arose involving the interpretation of the
agreement, a petition for review was filed with the circuit court.
However, the circuit court questioned its authority to grant joint
custody under any circumstances, and the matter was certified to
After reviewing the matter, this Court concluded that
joint custody could be granted and stated in Syllabus Point 1 of
"Under West Virginia Code § 48-2-15 (1986 Replacement Vol.), a circuit court may, in the divorce order, provide for joint custody of minor children when the parties so agree and when, in the discretionary judgment of the circuit court, such an agreement promotes the welfare of the child."
While finding that joint custody may be granted, we concluded that
in granting the same, the circuit court should make a sufficient
factual inquiry to ensure that the arrangement would be in the best
interest of the child. In order for this type of arrangement to
work, it is imperative that the parents be able to cooperate with
each other in regard to child-rearing matters. In Syllabus Point
4 of Lowe, we stated:
"A cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to co-operate in reaching shared decisions in matters affecting the child's welfare."
The matter of joint custody was again before this Court
in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
In that case, the mother appealed from a circuit court order
finding that although she was the primary caretaker of the child,
she was not a fit and suitable person to have permanent care and
custody of the child. While we reversed this case and granted
custody solely to the mother, we did address the matter of joint
custody. In that regard, we stated:
"Under joint custody, divorced parents have equal time with the children and equal say in decisions about their schooling, religious training and lifestyle. . . .
"Joint custody works well when both
parents live in the same neighborhood or at
least in the same city, and so long as they
can cooperate on child-rearing matters. . . .
When joint custody is by agreement, the same
cooperative spirit that animated the
underlying agreement will usually allow the
parents to rear a child with no more
antagonism than is experienced in most married
households." 182 W. Va. at 71, 385 S.E.2d at
926-27. (Footnote omitted).
However, we also found that joint custody would be inappropriate if
a the primary caretaker parent objected and stated in Syllabus
Point 8 of David M.:
"We do not authorize court-ordered joint custody over the objections of a primary caretaker parent although parents may agree to such an arrangement."
In the matter presently before the Court, the parties do
not even live in the same state. The defendant contends that the
purpose of the joint custody was "to permit him access to school
and medical records, etc. of the children and permit[ ] him to
consent to medical care when the children are visiting with him."
We did not find this to be one of the purposes of joint custody in
our cases discussing the same. It is the view of this Court that
a parent does not need to have legal custody of a child in order to
obtain this information. This information should be available to
either parent regardless of legal custody.
We conclude that the circuit court erred in granting
joint legal custody to the parties. Moreover, we find that it was
entirely inappropriate for the circuit court to have considered the
joint custody question in the first place. The circuit court's
finding that the plaintiff was the primary caretaker, and her
objection to joint custody should have prevented further inquiry
under Syllabus Point 8 of David M., supra. Rather than follow the
clear mandate of David M., the circuit court consumed a year in
psychological tests and hearing on this nonissue.
We decline to rule on the adultery question in this case for several reasons. First, there was a recognition of a fault ground in the divorce proceeding. No claim is made that alimony would be enhanced by a further fault finding based on adultery. From a legal standpoint, we have held that where the judgment of a trial court rests on one of several valid legal theories that do not affect damages, it will not be reversed because both theories were not considered or one was inadequate. See Keller v. Hartman, 175 W. Va. 418, 333 S.E.2d 89 (1985); Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984).
The judgment of the Circuit Court of Marion County is, therefore, affirmed, in part, reversed, in part, and remanded with directions that the plaintiff be granted sole custody of the children with specified periods of visitation granted to the defendant.
Affirmed, in part,
Reversed, in part,