Mary Ellen Griffith
Bell & Griffith
Attorney for the Appellant
Lockwood, Egnor & Vital
Huntington, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE NEELY dissents.
1. "To justify a change of child custody, in addition to
a change in circumstances of the parties, it must be shown that
such change would materially promote the welfare of the child."
Syllabus point 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669
2. "In a contest involving the custody of infant children, their welfare is the guiding principle by which the discretion of the trial court will be controlled and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion." Syllabus point 4, Murredu v. Murredu, 160 W. Va. 610, 236 S.E.2d 452 (1977).
Linda Ann Lesavich, the appellant in this custody-
modification proceeding, claims, among other things, that the
Circuit Court of Cabell County erred in ordering the transfer of
custody of her four-year-old daughter to the child's father, David
Anderson, the appellee. After reviewing the issues raised and the
facts presented, this Court agrees. The decision of the Circuit
Court of Cabell County is, therefore, reversed.
The appellant and the appellee, David Anderson, were
divorced by order of the Circuit Court of Cabell County in July,
1990. In granting the divorce, the circuit court awarded the
appellant custody of the parties' infant daughter and also awarded
the appellee, who was the child's father, visitation rights, which
were scheduled to increase as the child became older.
It appears that after the divorce, the parties disagreed
over the appellee's visitation rights and engaged in considerable
legal wrangling over those rights. The wrangling culminated in the
filing of a petition for change of custody by the appellee on March
The petition for change of custody charged that the
visitation provisions of the divorce decree had not worked and that
the appellant had failed to afford the appellee reasonable visitation rights. The appellee alleged that he was interested in
maintaining a relationship with his daughter and that an award of
custody to him would be in the best interest of the child.
Prior to the filing of the petition for modification, the
appellee had had an overnight visitation with his daughter on the
night of December 3, 1991. After that visitation, the appellant,
according to her later testimony, noticed that the child had
returned in a very dirty state and that she had red marks on her
back and a red and irritated vaginal area.
After the appellee filed his petition for modification of
custody, some six months after the December 3, 1991, visitation,
the appellant filed a report of alleged child abuse in Putnam
County, West Virginia.
The custody-modification petition was referred to a
family law master, and a number of hearings were scheduled in the
At the hearings, extensive evidence was introduced on the
problems experienced by the appellee in obtaining visitation with
the parties' daughter. Evidence was also introduced on the
question of whether the appellee had abused the parties' child and
on the question of whether the appellant, or some other individual,
had attempted to "frame" the appellee on the abuse charges.
At the conclusion of the hearings, the family law master,
on March 25, 1993, submitted a recommended decision in which he
noted that visitation had been effected from time to time over the
appellant's objections but that it had not really been meaningful.
He also expressed the opinion that the abuse charges against the
appellant's husband had been concocted and that, as false charges,
they would ultimately have an impact on the child's opinion of her
The family law master concluded that the appellant was
never going to permit visitation by the appellee with the child and
This is probably the grosses [sic] case in my 23 years of judging as Family Law Master or Divorce Commissioner that I have ever heard!
He recommended that the custody of the parties' infant child be changed immediately and concluded that such a change of custody was justified under this Court's ruling in Arbogast v. Arbogast, 174 W. Va. 498, 327 S.E.2d 675 (1984).
The family law master's recommended decision was
submitted to the circuit court, and the circuit court, after taking
under consideration exceptions interposed by the appellant adopted
the recommended decision and transferred the care, custody, and
control of the infant child to the appellee.
In the present proceeding, the appellant argues that the
trial court erred in adopting the family law master's recommended
decision and in modifying the previous custody decree.
In syllabus point 2 of Cloud v. Cloud, 161 W. Va. 45, 239
S.E.2d 669 (1977), this Court enunciated the fundamental principle
to be employed in determining whether the custody of an infant
child should be changed after such custody has previously been
established. The Court stated:
To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.
See also, Cunningham v. Cunningham, 188 W. Va. 235, 423 S.E.2d 638 (1992); Burdette v. Adkins, 185 W. Va. 228, 406 S.E.2d 454 (1991).
In line with this, the Court has also indicated that:
In a contest involving the custody of infant children, their welfare is the guiding principle by which the discretion of the trial court will be controlled and on appeal, its determination of custody will not be set aside unless there was a clear abuse of discretion.
Syllabus point 4, Murredu v. Murredu, 160 W. Va. 610, 236 S.E.2d 452 (1977); Syllabus point 1, Allen v. Allen, 173 W. Va. 740, 320 S.E.2d 112 (1984).
It appears that the decisions of the family law master
and the trial court in the present case were grounded substantially
upon this Court's decision in Arbogast v. Arbogast, supra.
Arbogast dealt with the question of whether this Court
would grant full faith and credit to a Kansas decree modifying
child custody. It appears that the Kansas decree ordering
modification was largely predicated upon the custodial parent's
willful and contumacious refusal to allow the noncustodial parent
visitation with the parties' son.
In Arbogast, this Court recognized that the Kansas court
had jurisdiction of the parties and jurisdiction over the subject
matter at the time of entering the modification order. The Court
further found that, under the circumstances, the Kansas decree was
entered under such circumstances as required this Court to give it
full faith and credit.
In Rowsey v. Rowsey, 174 W. Va. 692, 329 S.E.2d 57
(1985), a case decided after Arbogast, this Court more directly
addressed the question of whether denial of visitation would
support a modification of custody. The Court, in Rowsey, while
recognizing that a party's failure to comply with visitation
requirements may constitute a changed circumstance, also stated:
[W]e emphatically return the fundamental principle that a change of custody shall not be ordered unless it be shown that such change would materially promote the welfare of the children.
174 W. Va. at 696, 329 S.E.2d at 61.
The Court held, in essence, that interference resulting
in denial of visitation, in the absence of a showing that a change
of custody would materially promote the welfare of the child, would
not support the modification of a prior custody decree. The Court
reached a similar conclusion in Weece v. Cottle, 177 W. Va. 380,
352 S.E.2d 131 (1986).
In the present case, as in Rowsey v. Rowsey, supra, the
Court does not believe that the evidence showing that the appellant
has failed to comply fully with the prior visitation order alone
will support a modification of the prior custody award. It still
must be shown that a modification will materially promote the
welfare of the child.
The family law master did suggest that there were false
charges of child abuse against the appellee, and he concluded that
the raising of such false charges had a potentially negative impact
on the welfare of the child.
So far as this Court can determine, the child abuse
charges filed against the appellee have not been finally resolved.
In essence there is no conclusory evidence that the charges against
the appellee are false.
It is fundamental that the decision in a custody
proceeding must be based on fact, and not on speculation. Holstein v. Holstein, 152 W. Va. 119, 160 S.E.2d 177 (1968); Boger v. Boger,
86 W. Va. 590, 104 S.E. 49 (1920).
In view of this rule, the Court does not believe that the
matter in this case relating to the falsity of the child abuse
charges can establish that a change of custody will promote the
welfare of the child or should have any bearing on the resolution
of the issues involved.
Overall, this Court believes that the denial of
visitation to support a modification of custody must be accompanied
by a showing that a change of custody will materially promote the
welfare of the child, and since such a showing was not made in the
present case, the Court believes that the trial court's
modification ruling must be reversed.
It is not the intent of this Court, in this case, to
suggest that the denial of appropriate visitation is an
insubstantial matter, or question of no legal importance. The
Court believes that appropriate visitation by a child with a
noncustodial parent is a circumstance which, under most conditions,
will materially promote the welfare of the child. The Court, in
concluding that the trial court in the present proceeding applied
inappropriate findings in altering the original custody situation,
in no way finds that the appellee should be denied appropriate
visitation with the infant child. However, while abuse proceedings are pending, in this Court's view, it would certainly be
appropriate, given the Court's ruling in Mary D. v. Watt, 190
W. Va. 341, 438 S.E.2d 521 (1992), for a supervising trial court to
impose some limitations on visitation to guard against further
For the reasons heretofore stated, the judgment of the
Circuit Court of Cabell County is reversed, and this case is
remanded to the circuit court with directions that the circuit
court reinvest the appellant with the custody of the parties'
infant child and that the circuit court take such steps as are
reasonably necessary to insure that the appellee has appropriate,
and adequate, visitation with the parties' infant child.
Justice Neely dissents and would affirm the judgment of
the Circuit Court of Cabell County.