Submitted: May 3, 1994
Filed: July 18, 1994
Sally G. Jackson
Crawford & Jackson
Charles Town, West Virginia
Holly R. Eaton
Siber, Andalman, Perlman & Flynn
Takoma Park, Maryland
Attorneys for the Appellant
F. Samuel Byrer
Nichols & Skinner, L.C.
Charles Town, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
"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
This is an appeal by Wanda Sue Jenkins from an order of
the Circuit Court of Jefferson County, West Virginia, ordering that
legal custody of her two infant children be transferred to the
children's father, Steven Wayne Jenkins. On appeal, the appellant
claims that the trial court erred and abused its discretion in
ordering the transfer. After reviewing the questions presented and
the documents filed, this Court agrees. Accordingly, the judgment
of the Circuit Court of Jefferson County is reversed.
The appellant and Steven Wayne Jenkins were married on
August 28, 1982, and subsequently two children were born of the
marriage on December 31, 1983, and April 5, 1985. The parties were
divorced on the ground of irreconcilable differences by order of
the Circuit Court of Jefferson County dated December 9, 1986.
In conjunction with the divorce, the parties entered into
a written agreement whereby they agreed to share joint custody of
the two infant children, with the appellant designated as the
primary custodian. This agreement was accepted and adopted by the
For six weeks following the divorce, the two infant
children lived with their father. Thereafter, the children resided with their mother during the week and with their father on
On March 9, 1989, the children's father, Steven Wayne
Jenkins, petitioned for a modification of the custody arrangement
and requested that he be awarded sole custody of the children. In
his petition, he alleged that the appellant had sold the former
marital domicile and had since moved into an apartment over a
butcher store in a commercial district of a town, where the
children had no yard or place to play safely. The petition stated
that the children had an unheated bedroom and that one of the
children had developed pneumonia. The child's father claimed that
the appellant had left the children unattended and without
supervision of an adult for long periods of time and that the
children had been, on several occasions, badly infected with head
lice, which the appellant had refused to treat. He also claimed
that the appellant had allowed one of the children to play
barefooted on a splintered porch and that the child had suffered
more than thirty splinters in her feet, which the appellant had
failed to remove or treat.
After receiving the petition for modification, the
Circuit Court of Jefferson County ordered that an investigation of
the situation be conducted by Marcia Kemner, Child Advocate
Mediator of the Child Advocate Bureau for the West Virginia
Department of Health and Human Resources. Because the appellant lived in Maryland at the time, Ms. Kemner requested a supplemental
home study from the Frederick County, Maryland, Department of
Social Services. The Maryland report was forwarded to Ms. Kemner
and to the circuit court.
Following the filing of the petition, the circuit court
also referred the matter to a family law master, who conducted
hearings in the matter.
At the first hearing conducted by the family law master,
Marcia Kemner, the child advocate mediator, testified about her
investigation of the parties involved in this case. She indicated
that she had interviewed the children and the parties. She found
no evidence that the children had been abused. They looked "fine;"
they interacted warmly with her; and they did not at all seem to be
afraid of her. In addressing the allegations in the petition for
modification, Ms. Kemner indicated that there was no permanent
heater in the children's bedroom and acknowledged that one of the
children had developed pneumonia. She, however, indicated that the
bedroom was heated by a radiator in the hall. Ms. Kemner
acknowledged that the children had suffered from lice infestation,
but indicated that there had been an outbreak of the problem at the
children's school and further suggested that the appellant had
addressed the problem and had had a "hard time" getting rid of
them. Ms. Kemner also testified that there were splinters in the
porch where the appellant lived, but that the porch was replaced. She concluded that there was no evidence that the children were not
properly cared for.
During the hearing, the appellant herself testified and
indicated that she had had financial problems since her divorce.
Because of financial problems, she had been forced to sell her home
and move into an apartment. She denied that the children's bedroom
was unheated, and she explained that she had placed a space heater
in it and that the temperature had not fallen below 65°. She
admitted that one child had developed pneumonia, but said that the
onset symptoms had been a slight runny nose and a slight cough.
The implication of her testimony was that she appropriately cared
for the child. The appellant, while she admitted that she
occasionally left the children alone while she changed the laundry,
denied that she left them alone for any appreciable period of time.
The Maryland home study indicated that the appellant's
home was appropriately furnished and maintained and that it had no
apparent health or safety hazards. The report also indicated that
the children appeared to be happy and content, and they were
affectionate with their mother.
No further hearing was conducted until September 23,
1992, at which time the appellant testified that she had moved
three times since the hearing in 1989, first to Frederick, then
back to her parents' home because of financial problems, and finally to a townhouse in Frederick, Maryland. She had maintained
the same job with a bank from the time of the first hearing until
September, 1992, when she stopped working in order to set up her
own licensed child care business. At the time of the second
hearing, the townhouse where the appellant was living was described
as a three bedroom home in which each child had a separate bedroom.
The townhouse had central air conditioning and heat, and the
testimony adduced tended to show that the appellant had more time
to spend with her children, which was a principal reason for a
decision to set up a home day care business.
Following the second hearing, the family law master
issued a recommended order. In that recommended order, he found
that there was no basis for concluding that the appellant was unfit
or that the children had been adversely affected by living with the
appellant. The master, in effect, found that the appellant's
frequent moving was compelled by economic pressures and was not a
result of instability on her part. He further found that the only
independent testimony, that of the child mediator who conducted a
detailed study of the situation, concluded that a change in custody
was not warranted. The family law master indirectly addressed the
appellant's husband's concerns over the hazards of the appellant's
apartment and the appellant's care for the children. The master,
in effect, found that the parties testified in a contradictory
manner on these points and concluded that the evidence was not
sufficient to support a change in custody. Accordingly, he recommended to the circuit court that the appellant retain custody
of the children.
The circuit judge reviewed the family law master's
recommended order and accepted all the master's findings except for
the finding that the appellant's situation had become more stable
since the home study. The circuit judge specifically stated:
[T]he Court adopts and incorporates herein by reference the findings of facts of the Family Law Master in his recommended order (believing them to be supported by the evidence), except the finding on page 9 of said order, to wit: that the Respondent (Mrs. Jenkins) has become more stable since the investigation was conducted, inasmuch as such finding appears to be clearly wrong.
The court also found that the children were healthy and happy with the appellant, that they were doing well academically, notwithstanding the change in schools, and that there was no evidence which would lead to a conclusion that the appellant's life style was deleterious to the welfare of the children. The court, however, concluded that a change of circumstances was shown by evidence and that the evidence established that Steven Wayne Jenkins' household would provide more stability for the children. Accordingly, the circuit court modified the prior custody arrangement and awarded custody of the children to Steven Wayne Jenkins.
On appeal, the appellant claims that the circuit court
erred in modifying the custody arrangement in this case and that
the court's ruling constituted an abuse of discretion.
In syllabus point 2 of Cloud v. Cloud, 161 W.Va. 45, 239
S.E.2d 669 (1977), this Court stated the fundamental test to be
applied in determining whether child custody arrangements
previously ordered or entered into should be modified by a circuit
court. That syllabus point states:
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, Judith R. v. Hey, 185 W.Va. 117, 405 S.E.2d 447 (1990).
In the present case, it appears that in his petition to
modify child custody, the appellant's husband alleged that the
appellant's residence was substandard and that the appellant's care
of the children was negligent and had been destructive of their
physical welfare. Secondly, he alleged that the appellant's
situation was unstable, resulting in several changes in custody and
consequently changes in the children's lives.
As previously indicated, there was contradictory evidence
introduced during the proceedings in this case on the character of
the appellant's residence and upon her care of the children.
Essentially, the family law master recognized that the parties themselves testified in contradictory manners on this point, but
the master further found that the independent investigation of the
situation showed that the children were healthy and happy, and the
master, who had an opportunity to observe the parties, in essence
concluded that the appellant's husband failed to show that the
appellant's residence was so inadequate or that her care of the
children was so negligent as to have a deleterious effect upon
Substantial evidence was introduced showing that the
appellant had, on a number of occasions, changed her residence.
Further, evidence also showed, however, that the changes were
occasioned by the appellant's financial circumstances.
In Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981),
this Court recognized that financial circumstances alone would not
justify a change in custody. The Court stated:
While, as the trial court found, the educational and economic position of the father is superior to that of the mother, nonetheless, these factors alone pale in comparison to love, affection, concern, tolerance, and willingness to sacrifice . . . .
167 W.Va. at 71, 278 S.E.2d at 364.
In this Court's view, the overall evidence in this case
suggested that the parties' children were thriving in the care of
the appellant. The children were observed to be pleasant and happy and appeared to enjoy being with each other. They were doing well
in school, and they appeared to be healthy and happy. Although the
evidence suggested that there had been changes in the circumstances
of the parties, principally changes in the appellant's place of
residence occasioned by her financial difficulties, the Court
cannot find that the changes have had a deleterious effect upon the
children or that the evidence showed that a change in custody would
materially promote the welfare of the children.
This Court believes that the facts developed in this case
failed to rise to the level sufficient to justify a change of child
custody under the rule set forth in syllabus point 2 of Cloud v.
Cloud, supra, and that the Circuit Court of Jefferson County erred
in overruling the recommendation of the family law master that
there be no change in the custody of the children.
For the reasons stated, the judgment of the Circuit Court
of Jefferson County is reversed, and this case is remanded with
directions that the legal custody of the children be returned to