# Holstein v. Holstein

> West Virginia Supreme Court · March 12, 1968 · 152 W. Va. 119

URL: https://www.frixlaw.com/law-library/cases/9585315

## Case

- **Full name:** Dolores Holstein v. Kenneth Ray Holstein
- **Court:** West Virginia Supreme Court
- **Decided:** March 12, 1968
- **Citations:** 152 W. Va. 119; 160 S.E.2d 177; 1968 W. Va. LEXIS 135
- **Precedential status:** Published
- **Opinion:** Dissent by Calhoun
- **Judges:** Caplan, Calhoun
- **Cited by:** 36 later opinions in the Frix Law Library

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## Opinion text

Calhoun, Judge,
dissenting:
Respectfully I dissent. My dissent is based primarily on the fundamental principle stated in the third point of the syllabus of the majority opinion, quoting the eleventh point of the syllabus of Smith v. Smith, 138 W. Va. 388 , 76 S. E. 2d 253 , which is as follows: “The exercise of discretion by a trial court in awarding the custody of minor children will not be disturbed on appeal unless it clearly appears that such discretion has been abused.” (Italics supplied.) To the same effect see Witt v. Witt, 141 W. Va. 43 , pt. 4 syl., 87 S. E. 2d 524 ; Walker v. Walker, 109 W. Va. 662 , 155 S. E. 903 ; Norman v. Norman, 88 W. Va. 640 , pt. 6 syl., 107 S. E. 407 . The rule applied in such cases is essentially the usual rule applied by this Court in reviewing findings of fact made by trial chancellors. Such findings of trial chancellors in divorce cases will not be reversed on appeal “unless such findings are clearly wrong or against the preponderance of the evidence, * * Rohrbaugh v. Rohrbaugh, 136 W. Va. 708 , pt. 4 syl., 68 S. E. 2d 361 ; Finnegan v. Finnegan, 134 W. Va. 94 , pts. 2 and 3 syl., 58 S. E. 2d 594 .
■Substantially the same principles are applied in a proceeding for change of a custody previously awarded. Gates v. Gates, 87 W. Va. 603 , pt. 4 syl., 105 S. E. 815 . In that case, in which the Court took custody from the father and awarded it to the mother, the Court made the following statement ( 87 W. Va. 607 , 105 S. E. 816 ): “We are unable to perceive any departure in the decree from the sound discretion vested in the court below. * * * Besides, he had the parties before him and could avail himself of the aid afforded by their appearances, demeanor and conduct.”
*130 The general principles stated in the prior decisions of this Court previously referred to are summarized in 27B C.J.S., Divorce, Section 324(13), page 757, as follows: “The discretion of the lower court with respect to awarding or changing the custody and support of minor children is subject to review, but the determination of the court will not ordinarily be disturbed unless there is a clear abuse of discretion or it is clearly against the weight of the evidence (Italics supplied.)
This case does not involve merely an application for an initial award of custody. It involves restoration of a custody initially granted in a divorce action to the innocent spouse, the wife and mother, as against the guilty spouse whose cruel conduct initially caused the wreck of the matrimonial craft and the dispersal of the family so that there remained no possibility of their living together as a happy family under a single roof. That adjudication of the husband’s guilt and that initial award of custody to the mother as the proper custodian of the minor children of the broken home was made in the divorce action, an adversary proceeding, with both parties to the marriage before the court, in person and by counsel, with full right to be heard. That custody was interrupted in an ex parte hearing held while the wife was outside the state. Whatever may have been the true and actual facts upon the basis of which the husband received custody during the wife’s absence, the record clearly discloses that, upon her return, she was permitted to resume a divided custody of her children and that she promptly resumed a respectable place in the community as an active church member, a high school teacher and a devoted mother of her children.
As I shall undertake to point out subsequently in this opinion, the husband at the custody hearing involved in this case, produced no testimony to reflect in the slightest degree upon the character of the mother or her fitness to resume custody of her children, though the trial court, as will be stated more fully hereinafter, earnestly urged the husband’s counsel to adduce any proof of that character which might be available to him.
*131 “When a husband and wife are divorced because of the marital misconduct of one of them the law generally favors the award of custody of the children to the innocent spouse.” Rohrbaugh v. Rohrbaugh, 136 W. Va. 708 , pt. 5 syl., 68 S. E. 2d 361 , and numerous decisions of this Court therein cited. To the same effect see 27B C.J.S., Divorce, Section 309 (6) b, page 468. In suing for divorce on the ground of cruelty in this case, the wife made the following allegation in her complaint: “Plaintiff says that the defendant has been guilty of extreme cruelty towards the plaintiff in and during their married life, that in and during their married life the defendant has called the plaintiff vile and vicious names such as god damn sons-of-bitches, whores, prostitutes, adulteress and has accused the plaintiff of having sexual intercourse with other men, and on different occasions the defendant has slapped and beat the plaintiff, and on one occasion cut the plaintiff with a hunting knife on the arm, and the defendant continuously nags the plaintiff, and has on many occasions threatened the plaintiff, and on February 25, 1964, the defendant struck and choked the plaintiff and kicked her in the stomach with his bare feet while she, the plaintiff, was in bed. The plaintiff says that by reason of the cruel treatment of the defendant towards the plaintiff, the plaintiff’s health has been affected and she does not believe there can be a reconciliation of this marriage.” It should be remembered that the two infant children were in the home meantime.
On March 7, 1964, the court entered a pendente lite order which, among other provisions, awarded temporary custody of the children to their mother, ordered the husband to pay $100 a month for their support and directed that “each of the parties hereto is enjoined from in any way molesting or interfering with the personal liberty of the other.”
By an order entered on March 14, 1964, the court adjudged the husband to be in contempt of court “in direct violation of a former order enjoining him from in any way molesting or interfering with the personal liberty of the plaintiff;” and ordered that “the defendant be confined *132 in the Jail of this County for a period of Six Months unless sooner released by this Court.”
The divorce order discloses that the parties appeared in person and by counsel, and that, after having heard the testimony of witnesses, the court adjudged: “That the defendant, Kenneth Ray Holstein, has been guilty of cruelty towards the plaintiff as alleged in the plaintiff’s complaint.” Pertinent considerations of this character are omitted from the majority opinion. By the same court order, the plaintiff was awarded custody of the two children, reserving to the father “reasonable right of visitation of the children bom of this marriage at reasonable times and at reasonable places and in a law abiding maimer.” The order further provided: “The defendant is enjoined from harming the plaintiff or interfering with her personal liberty in any manner.”
On August 5,1964, in the ex parte proceeding, the mother not being present in person or by counsel, the court entered an order, a portion of which was quoted in the majority opinion, involving that which the second point of the syllabus refers to as “her own indiscretions.” It is reasonably obvious that the trial court in the custody hearing now in question did not attach grave significance to these indiscretions, because the same order provided for visitation rights to the mother “at reasonable times and places and under reasonable circumstances.”
For the guidance of trial courts in child custody cases, perhaps the most troublesome area of all trial judge responsibilities, this Court has stated another principle as follows: “Ordinarily, where the child will be equally well cared for by either parent, the mother, in preference to the-father, if the child be of tender years, is entitled to its custody.” Beaumont v. Beaumont, 106 W. Va. 622 , syl., 146 S. E. 618 . To the same effect, see Settle v. Settle, 117 W. Va. 476, 480 , pt. 2 syl., 185 S. E. 859, 861 ; Hughes v. Hughes, 113 W. Va. 698, 700 , 169 S. E. 403, 404 ; Rierson v. Rierson, 107 W. Va. 321, 323 , 148 S. E. 203, 204 . This general rule was stated by Judge Maxwell in Reynolds v. Reynolds, 109 W. Va. 513, 514 , 155 S. E. 652, 653 , as follows: “The *133 evidence adduced by the relator in no wise convinces us that this mother is unfit to he further intrusted with her God-given responsibility of looking after the welfare of her child. When a court exercises its great authority in taking from a mother her child of tender years, particularly a female child, such course is justifiable only where the most cogent reasons exist. And recognizing that in a normal mother, such as we believe this one to be, the deep-seated impulse to care properly for her young child is the controlling thought of her life, the mantle of charity should be thrown around her to the end that mistakes may be forgotten and the good may be emphasized. Since none are without fault, charity should prevail.” At the time of the custody hearing, the son was twelve, and the daughter six years of age.
The majority opinion in the present case contains the following language: “The burden is on the petitioner to show that a change of the existing custody will be beneficial to the children. Pugh v. Pugh, 133 W. Va. 501 , 56 S. E. 2d 901 , * * *." As sole authority for that proposition, the Pugh case cited State ex rel. Lipscomb v. Joplin, 131 W. Va. 302 , 47 S. E. 2d 221 , not a case involving a question concerning which of the parents should have custody of their child, but rather a case in which a mother sought to regain custody of her child from a respectable married couple to whom she had delivered the custody when the child wás twenty days old. Cunningham v. Barnes, 37 W. Va. 746 , 17 S. E. 308 , is likewise cited in the majority opinion for the proposition that the burden was on the mother in this case to show that a change of custody would materially promote the moral and physical welfare of the children. That also was a case in which a parent was seeking custody of his child, the custody of whom he had surrendered “by fair agreement” to the child’s grandparents after the death of the mother and when the child was about fifteen months of age. This Court, in a long line of cases of that character, has held that when a parent by fair agreement or otherwise voluntarily surrenders custody of his or her child to another person or to other persons, the parent will not be permitted to regain custody of the child except by showing *134 that such a change of custody will materially promote the moral and physical welfare of the child. Cases in this category are listed in Whiteman v. Robinson, 145 W. Va. 685, 691 , 116 S. E. 2d 691, 695 . To the same effect, see Lucyk v. Brawner, 144 W. Va. 690 , pt. 2 syl., 110 S. E. 2d 739 , and Buseman v. Buseman, 83 W. Va. 496 , pt. 5 syl., 98 S. E. 574 . I suspect that the Court may have confused the principles relating to cases in this category with the quite different situation in this case which involves a contest between two parents claiming custody of children born to their marriage union.
The mother in this case has never by fair agreement or otherwise voluntarily surrendered custody of her children to anybody. In such circumstances, the welfare of the children was the polar star to guide the trial court in the exercise of the onerous burden of discretion imposed upon him by the law and the circumstances. Suder v. Suder, 112 W. Va. 664 , syl., 166 S. E. 385 ; Dawson v. Dawson, 57 W. Va. 520 , pt. 3 syl., 50 S. E. 613 . This controlling consideration was recognized in the majority opinion, wherein the Court stated: “Both parties agree that the welfare of the children is the paramount and controlling factor in resolving this contest for the custody of their children.”
I believe this record discloses that, by argument and innuendo, unfavorable reflections have been made in this Court upon the character of the mother and her present husband when, in the interest of candor and fairness, such matters, if they were intended to be relied upon seriously, should have been developed in the trial court.
Counsel for Kenneth R. Holstein inquired of several witnesses concerning Vance Price’s previous use of “tranquilizers,” of “his being nervous” and of his “nervous breakdown” at or about the time of his divorce from his former wife. During the course of the direct examination of Betty Woods, with whom Price had a courtship prior to his present marriage, the matter developed as follows:
“Q. You speak of his being nervous. Was he like that when you met him?
*135 The Court: Mr. Hendricks, I am not sure you mean to use that term. Do you mean a mental breakdown? That is what a nervous breakdown is. Do you have the testimony to prove that he had a nervous breakdown?
“Mr. Hendricks: In layman’s language, I would say that anybody whose nerves had gone bad.
“The Court (interposing): That is not what a nervous breakdown is. You define your term a little better, unless you intend to prove something like that.”
Despite this admonition by the court, there was no effort to prove that Price suffered a “nervous breakdown”, any degree of mental disorder, alcoholism or anything whatsoever except that he took tranquilizers and “sleeping pills” under orders of doctors during the trying period when his own home was being broken up. Betty Woods testified that this occurred “after he was separated and he was waiting out a period so he could get a divorce on desertion. He was very nervous at that time.”
Vance Price testified that he had “a yearly check’ once a year in Charleston and all the last four years I have been pronounced sound and fit.” He testified further that, 'during the period of his nervous condition, he consulted the “company doctor” and that: “He advised me to go' ;t0' the University of Virginia Hospital at Charlottesville and I went down there kind of hoping and thinking-that the trouble was something other than nerves. That w^s his diagnosis. I saw several doctors while I was there. They gave me, I suppose, about every kind of examination they could and their findings were that it was due to nervous tension, that was my trouble at that time.”
Price testified that he holds a master’s degree from West Virginia School of Mines; that at the time he testified he was chief engineer for Amherst Coal Company and had held that position during the preceding four years; that' he obtained a divorce on the ground of desertion; that his daughter at that time was fifteen and his son twelve years of age; that these two children were coming next day and “will be with me for three weeks vacation and visit with *136 me”; that “I dearly love my children and my children dearly love me”; and that if the custody of the two Holstein children were awarded to his wife, he would cooperate in any visitation rights granted to their father. He stated: “I think they should see their father. I think they should maintain contact with their father.” He testified further: “I want what is best for Robert and Renee” and “our home will be built on love and understanding.” In spite of the fact that the testimony wholly fails to reflect unfavorably upon the plaintiff’s husband, the majority opinion states: “Furthermore, the evidence reveals that Vance Price had suffered a nervous disorder * * (Italics supplied.) The opinion, nevertheless, proceeds in the same sentence to státe that the use of tranquilizers “had been terminated some six months prior to his marriage to the plaintiff.”
In her petition for restoration to her of custody of the two children, the plaintiff alleged the change in circumstances since the custody was awarded to their father. The petition alleges that “the infant children of the parties hereto have strongly indicated their desire for a change of custody from their father to your petitioner.” The petition states the facts concerning the former husband’s remarriage and the fact children bom of three separate marriage unions were living in the Holstein household. The plaintiff did not allege that Mr. and Mrs. Holstein were unfit persons to have the custody of the children.
In his answer to the petition for change of the custody of the children, the defendant did not allege that their mother was in any sense or for any reason an unfit person to have custody of the children. At the commencement of the custody hearing on June 17, 1967, counsel for the defendant asked for and received assurance from the court that the court order which awarded custody of the children to their father was a part of the record. Since the defendant, in his answer to the wife’s petition for a return of custody to her, made no allegation that the mother was an unfit person to have such custody, there was no basis for a reasonable belief on the part of the plaintiff, her counsel or the court that the wife’s moral character or fitness *137 was to become an issue in the case at any stage thereof. There was no pleading to suggest or support such an issue.
I do not find that the order which awarded custody to the father was referred to in any way throughout the remainder of the custody hearing. In any event, that order referred to a situation which was alleged to have existed about three years before the custody hearing was held. I do not find anywhere in the record even the slightest suggestion from the defendant that the plaintiff was an unfit person to have custody of the children at the time of the custody hearing or any basis for a belief on the part of the court, the plaintiff or her counsel that such a contention would be made at any subsequent time.
During the cross-examination of the defendant by counsel for the plaintiff, the following appears from the record:
“Q. Do you know of any conduct on her part since the change of custody to you that you think is in any way improper or immoral?
“A. Well, I don’t approve of everything.
“Q. You haven’t seen any conduct as such yourself?
“A. No, I haven’t seen it.
“Mr. Hendricks: Do you want us to come with some information on this?
“The Court: * * * I think the moral character of all parties concerned is important. I thought you were going to get into that and exhausted your testimony on that point?
“Mr. Hendricks: No, we haven’t.
“The Court: If you have testimony to prove that Mrs. Price is an unfit mother because of her morals, I certainly would be interested in it. (Italics supplied.)
“Mr. Hendricks: We would say this, I believe we would like to stick to the facts the way it is now. (Italics supplied.)
“The Court: Do you have anything to say on that point, Mr. Jarrell?
*138 “Mr. Jarrell: We have her minister and another minister. I have summonsed her husband’s people, and also, friends who visited in her home and things to show that she is a good person of good moral character. They haven’t brought that up so I don’t need rebut it.
* * *
“Mr. Hendricks: We rest. I have a motion.
“Mr. Jarrell: We rest unless the Court feels we should present the ministers.”
It is obvious, I believe, from what has been stated heretofore in this opinion, that the plaintiff, her counsel and the trial judge were justified in assuming that counsel for the defendant had no intention to assail or question the moral character of the plaintiff existing at the time of the hearing. Hence, all of the plaintiff’s character witnesses were excused. The trial court’s ruling was not based on the character or reputation of the respective parents for the very good reason that such was not made an issue in the case, either by pleadings or proof.
Perhaps the trial court and plaintiff’s counsel were misled and misinterpreted the purpose and intent of the defendant’s counsel. Nevertheless, the court’s order entered in August, 1964, in the ex parte proceeding, approximately three years before the custody hearing here in question, was referred to and emphasized both in the brief and oral argument of counsel in this Court. Innuendoes are thus belatedly urged long after the hearing at which the trial court virtually implored counsel for the defendant to come forward with any available proof to show that the mother was not at that time a proper and fit person to have the custody of the children.
The uncontradicted testimony is that the plaintiff, at the time of the hearing, was a person of good standing in her community; active in church work and regular in church and Sunday School attendance; a teacher in a nearby high school; that she loves her children and they love her; and that she has, whenever the children were with her, accompanied them to Sunday School and church services, and helped them with their school work. She *139 testified that their children repeatedly expressed their desire to be with her.
Robert was asked by counsel for the defendant: “* * * If you could just make this choice on your own, where you would rather stay and in what home, where would you like to go?” It is true that he indicated a preference for his father’s home, but his testimony tends to indicate that this answer was mainly prompted by the fact that he disliked to move away from friends and go to a strange or different school. His mother testified that both children wanted to be with her but that Robert merely did not want to move to Man.
Though this dissenting opinion has already become perhaps unduly lengthy, I believe I could detail many more facts disclosed by the record which tend further to sustain the soundness of the trial court’s judgment and exercise of discretion. In making his ruling at the conclusion of the custody hearing by which custody was awarded to the mother with reasonable right of visitation granted to the father, the trial judge stated:
“I think this case points up how much turmoil and so forth you can come up with when you have a divorce, especially when families get all mixed up like this, but the problem of the Court right now is to try to decide what would be best for these two children involved. To begin with, I think the Court will commend Mr. Holstein for doing a good job and giving good care to the two children and from that point of view, I don’t have any quarrel with Mr. Holstein at all. I think that all the evidence here is that his wife is a good woman and that they have a happy family life and are giving the children adequate care.
“However, the Court feels like, looking at it in the long run, that the mother could, under these circumstances, give better care to the two of them, so I am going to change the custody to the mother and under certain conditions. [Here the trial court dealt with visitation right of the father and similar matters.]
“* * * In the meantime, Mrs. Price will have the same rights of visitation that she has had * * *. Of course, if her circumstances were to change *140 materially in her marital situation, whether this case would be reversed or not, you can still petition the Court for a re-hearing — like it has been this time. I want to make this clear so the Court, on appeal, looking at this record, will have no questions of the reason I am ruling the way I am.
“The record, I think, already has shown that I find no fault with Mr. Holstein at all or his wife. The reason for this ruling is that, looking to the future, I feel that Mrs. Price, with the two children to think of, will give these two a better opportunity for a fuller life, for a better education and for a better preparation for life. It is on this basis that I am ruling the way I am.”
This case is before the Court for exercise of its appellate jurisdiction. We have no jurisdiction or right to undertake here to try this case de novo. We have so often stated that we may be required to affirm a judgment based on a jury verdict even though we would have voted otherwise as members of the jury. So here, we are not at complete liberty to decide the case as we would if we had sat as the trial court. We are authorized merely to judge whether the findings of the trial chancellor are clearly wrong, or whether the trial court clearly abused the broad discretion with which he was clothed and burdened in determining the proper award of custody as between the two parents.
We have so often stated and reiterated the obvious common sense proposition that the trial judge who hears and observes the witnesses is in a far better position than an appellate court to make a sound judgment in factual matters based on testimony. Furthermore, the trial judge in this case has, in a very real sense, lived with this case for years.
I do not believe that the judgment of the trial court is clearly wrong, or that the trial judge improperly exercised his discretion in his award of custody of the minor children in this case. On the contrary, I believe his judgment is clearly right and that he reached a proper, wise and just decision in the exercise of his discretion in determining the proper custody of the two minor children.
For reasons stated, I would affirm the judgment of the Circuit Court of Boone County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585315. Public record. Not legal advice.