*1 become ill thereby, the board further inferred that as result thereof he fell while taking a shower in the bath- house injured himself. There one scintilla evidence support finding. will be It recalled that the claimant testified that he did not know what caused him to out.” He had “pass had similar away “attacks” place employment. negative cautious statement Dr. Castrodale, “I do not believe that can stated certainty attack of syncopal 20 September, 1966 directly related to previous illness the patient had,” might have falls far short meeting proof required even in a com- workmen’s pensation case. Compensation order Appeal Workmen’s 30,
Board of June 1969, is reversed. This decision will be certified to the Compensation Workmen’s Board Appeal and the Compensation Workmen’s Commissioner.
Reversed. rel. Regine ex State Domico
v. Pete Domico (No. 12652) January 15, Submitted 1970. Decided February 1970.
Dissenting Opinion March *2 Mohler, W. E. for relator. Mascara, Johnson, Wunschel, Frank C. F.
Steptoe & W. respondent. for Judge:
Berry, of habeas for writ petition proceeding This involves Domico, a citizen petitioner, Regine corpus filed of this original Germany, jurisdiction invoking requiring be granted Court that writ praying and Domico, husband, to produce her former respondent, Pete Domico, Maria Angela and of Martina Elizabeth bodies and to the Court award parties, children of the before petitioner. infant children of said Feb- in this Court on This was instituted proceeding re- granted ruary 27, 1967, requiring was writ Court children before the produce the two spondent appeared be- 25, 1967, parties at time the April on which con- children and the case fore the Court with the was depo- in order take request parties tinued at the sitions, Germany. It was both regular term years January later until some three on the case submitted decision of Court was argument and oral of counsel. briefs The married in Ger- petitioner respondent 1958, many respondent on November while the was Nuremberg, Germany. Army the United States stationed in at the years pregnant old petitioner eighteen marriage. together time of lived in Ger- parties however, in 1963 the re- many years; for about seven Texas, Hood, to Fort and the spondent peti- was ordered tioner later lived him in for five months in with Texas Having 1965 after to America coming with the children. Vietnam, received orders to re- report tired May, from the the rank first Army 1965, with after sergeant, twenty-three years service. He went soon Germany, thereafter with wife and children and the family lived there for a months. year three He sought employment latter during this period. The respondent is about older years seventeen than the petitioner, some difficulties arose between the parties after his retirement and his return to Ger- many. During the the parties they time lived together, apparently were affiliated with the Lutheran church which had been married. as hereafter ex- plained, returned to America chil- with the dren wife, and without his after he affili- became ated Roman church, Catholic and the children *3 are attending now a parochial school of that church.
The serious marital difficulties between the be- parties gan 1966, in there some indication that dis- cussed separation both petitioner divorce. The claims that the respondent agreed give custody of chil- the her, dren to but respondent the denies that agreement was made.
The testified that respondent in the summer 1966 he wife, learned from his her relatives, and her that attorney she intended to legal take action against him. He then consulted an in attorney Nuremberg who appeared an been American living in that area. attorney The advised him to leave the take the children 6, with On September 1966, him. the knowledge without petitioner, Martina, he took had who been sick in bed, was home and then Angela’s went to school where he took her from her Early classroom. on day, that same Germany he left for the United States with the chil- two dren, Martina, 5, born on 1962, October born Angela, January on 23, Upon 1959. in arriving country, he returned his father’s home in Marion Monongah, County, Virginia. West had learning respondent
The after petitioner, school, home im- taken children from their 6, 1966, September on in the mediately proceedings filed Guardianship, Nuremberg, District Court Court an order the two Germany, and obtained which children, proceeding to a divorce was preliminary 19, in the on District September later instituted granted Nuremberg-Furth. petitioner The was Court of on in court August from the said divorce Court the District judgment final con- in the was brief and proceedings divorce “* ** statement, fault contained lies with cise and custody of the There no mention of the accused.” However, there was children in the divorce decree. decree, which statement in connection with country, in this finding an or facts opinion considered under oath. certain testified witnesses reciting showed states that evidence finding opinion, or way an immoral himself the accused had conducted that he had fondled them small girls; toward the two motions with them an manner and used obscene improper times. various corpus proceeding institution of the habeas After petitioner Court, taken from depositions Charleston, Virginia, and her brother immoral con- suggestive and again testified about she addition children. duct of the toward her in front improperly that he had acted she stated children, engaged improper sexual he had *4 presence in the relations, language and had foul used and Petitioner they repeated. heard the children respondent in that depositions further testified he in being dishonest while was reputation had the stealing had accused of coins and Germany and been had had argued people she with who accused stamps; that actions that she had settled com- him such prosecution. Also, matters to avoid certain she promised left Germany after the “C.I.D.” respondent that stated officers came to their house and some govern- recovered ment property contained in a tool box.
The petitioner further that had respondent testified threatened to shoot her and burn down their house while he in the Army; was she was in fear harm bodily for both highly herself and the children and that he was nervous neurotic. These statements were confirmed by brother, her Mad, Dr. Helmut who is medical doctor in Germany specialized in al- training psychiatry, his though principal practice surgeon. Mad Dr. stated that although he had not the respondent, treated he had observed him aas doctor would observe patient, while talking with him noticing his reactions. taken four
Depositions persons Germany were in which supported petitioner’s depo- contentions. These were in sitions translated narrative form and there- were, fore, objected to in brief filed behalf of the respon- dent form because of the used and on no ground right to cross-examination in- was allowed. There is no dication that anyone present there was behalf of Germany, cross-examine witnesses objection and no depositions was contained in the indi- they cating proper were not in form in accordance with German law.
The deposition of the respondent categorically denied all the accusations made his wife her witnesses against him. He stated that the petitioner often left the custody, they his living while in Ger- many, when she attended various meetings and made trips to visit her city sister another that there time, was no indication, on these occa- sions, that she apprehensive his treatment of children. appears
It further had given $8,000 money buy his own mother-in-law the prop- all Nuremberg, in which lived in erty and also that helped pay loan, he had her off a equivalent to several dollars, in connection thousand with the property, *5 making re- loan having purpose been obtained for during had been bombed pairs building which II. ever War denied that he had stolen World He or coins coins had certain stamps paid but claimed he in that he in had while Ger- was interested obtained many. in Mo- priest the parish taken from
Depositions were the chil- school where taught from the nuns who nongah, a welfare attended, policeman a state dren respon- well-acquainted are with worker, all of whom testimony Their was dent and the two children. moral character good the respondent effect that was community where well-thought and that he was his second lived; him and that the children lived with he home, had in a comfortable wife $25,000; a that Monongah cost about built school, along well getting children happy were in extra well-adjusted participating become and were had in the choir of the singing curricular activities such as belonging church, taking ballet lessons Catholic respon- that They the Girl further testified Scouts. loving dent’s second wife treated the two with It care, as her own. is contended same if advantages country the children this afforded be afforded them in superior are those Germany. in behalf of the testimony
There was uncontradicted returning after respondent, testimony being divorce, country children, this with the and before to this petitioner the defendant come requested him their children in a home and live had re- providing which he for them but that she fused to do so. secretary a in Nuremberg as employed petitioner month in American salary per of about receives $187 school and attended one high graduate
money. She comparable would be com- schooling what year attended country. college mercial employed and is high school blacksmith year one *6 in connection with the coal Monongah mine in and makes about a month in this $500 work. He also receives about retirement pay from the Army, $300 making his income more than $800 month.
The respondent did not appear divorce German proceedings but admits that he it by knew about virtue of being served with a notice which equivalent would be to an order of publication. petitioner
After divorce, respon- obtained the dent instituted proceedings the Roman Catholic church and had marriage annulled. After this had taken place, he married 30, 1968, Loretta on Bienkoski October in Clarksburg, Virginia, ad- because had been vised unfavorable reactions if marriage it were performed in Monongah. The Domico present Mrs. was twenty-eight years old at the marriage time had previously illegitimate borne twins. At the time the evidence taken, was again Mrs. Domico pregnant. This make a total of five children who would be living with the respondent present wife in their home in Monongah. evidence, however, The indicates home, the new containing four bedrooms and two bathrooms, is entirely adequate for the comfortable living of the respondent, his wife and the children. only issue in this proceeding who shall
custody children, Martina and Angela. It is the contention of the petitioner this Court should recog- nize the judgments the courts of Germany regard custody to the status and of the infant children. It appears from the evidence that the respondent had left with the children before the Court of Guardianship Nuremberg, Germany, entered the order giving custody of the children to the petitioner. In such case it appears may there be some question whether the German jurisdiction court had award of the children. 2d, 24 See Am. Jur. Divorce Separation, Section 774 C.J.S., Divorce, 27B Section 392. The petitioner re- fused to to a agree reconciliation and live with the re- spondent in this country. It is a well-known principle
702 husband domicile follows the law wife’s Brinkley has fix the domicile. right husband v. 557, 436; v. Hartman Brinkley, 147 129 S. E.2d W. Va. However, Hartman, 728, 132 407. W. 53 E.2d Va. S. regard to event, the order court with German the courts custody of the not bar children does respect state or decree with a later order making Cantrell, 143 Cantrell v. of the children. 501, 768; Pugh, 133 Va. Pugh W. v. W. Va. S. E.2d 511, 37 E.2d 901; Suter, S. 56 S. E.2d Suter v. 128 W. Va. Leamons, E. 474; v. 132 S. Stapler W. Va. succinctly case at covering law the matter bar following syllabus Stapler in the stated in the case *7 awarding order the cus- foreign “A decree or language: judicata not res tody a minor in a suit is child divorce State, a involving in subsequent proceeding change has such infant, of the there been custody where foreign judg- of the in the rendition the conditions since desirable for the wel- ment as to render its modification protection fare and of the child.” Full faith and credit under Constitution required given judgments is to to United States not countries; however, frequently are judgments such foreign comity. through force and effect recognized given (3); C.J.S., C.J.S., Laws, 15A Conflict of 3 27B Section 2d, Divorce, Divorce, 329, 24 Jur. Section Am. Section custody regard 964. In full faith credit with cases country to is custody sister state this decrees another custody in a state. required proceeding Leamons, Suter, Stapler supra; v. v. supra; Pugh v. Suter Cantrell, supra. Cantrell v. The reason Pugh, supra; and is that the welfare of child of law principle this cases; only star in and the issue for is such polar proceedings involving in habeas corpus determination custody of their children parents the rights of the children in con- and best interests is the welfare rel. awarding proper custody. State ex nection with 221; Joplin, Pugh v. 131 W. 47 S. E.2d Lipscomb Va. regard to supra. awarding This is true with Pugh, v. custody of country children this former where decrees with regard custody are and is true doubly involved of decrees of courts of foreign countries under comity. The respondent and the children in this instant case are citizens of and comity will never be ex tended in any case might injuriously affect our own citizens. Brown, Stevens v. W. Va. v. Pugh,
The case of Pugh supra, quite similar case at bar. case the obtained husband brought of the children from the them to wife Virginia brought from another state. The wife habeas corpus that, in this state and it was held al- proceeding though the manner which the obtained the husband commendable, was not the action that respect did not or exceed right parent transcend his possession of children. However, right his to the cus- tody of the was subject determination judicial in the event of a contest between him and the mother of the children. entitle petitioner To the custody of the children, her, it is upon incumbent pro- ceeding, change show of the existing custody of the children materially pro- mote the welfare of the principle children. This is set out in Cantrell, of Cantrell supra, case v. wherein it that, is stated “It clear may that whatever be the rule adopted, a foreign or decree order is not bar to a subse- *8 quent to proceeding looking its modification because of altered since the conditions time its rendition, and where altered conditions make modification de- sirable and for better welfare of the child.” The that, also in Cantrell case states cases such as the case bar, foreign custody at since a usually decree is regarded controlling as as to conditions as they existed the time rendered, foreign only decree was matters that have subsequent foreign custody occurred decree can litigated Therefore, in the new decision. upon be a habeas corpus custody case, in a hearing the Court should disre- allegations the voluminous gard misconduct and un- the parents fitness either of prior to rendition present limit custody decree, and should previous may which circumstances to relevant facts and inquiry affecting time to occurred since that be shown justify may children, may or welfare which mis- event, in evidence change custody. their admitted may be any custody hearing conduct to prior Am. Jur. only as it unfitness. present tends to show Separation, Divorce and Section 2d. chil- this case that in the evidence appears
It by cared for are well the parties dren of that Virginia; West Monongah, in home adequate in an healthy; and well-fed are the children well-clothed in this to life adjusted completely are they that to their welfare detrimental it be would time. present children at the of these custody change be benefited children would There is no evidence custody of the from the removing them by returning them Ger- Virginia, Monongah, It is true custody petitioner. many under cared for Ger- adequately they be appears would country. this they would many but not as well and the Germany, property no owns petitioner her mother. She by she lives is owned house since financially respondent, as the not as off well than her income more income is four or five times live, free of encum- he the home in which owns country to from one berances. To remove the them subject and to another, religion, change their their lives period formative different customs case, weigh in this from the evidence appear, For the reasons interest. their and best against welfare for herein, prayed change stated denied. petitioner Change denied.
prayed Judge, CalhouN, dissenting: decision I from the Court’s dissent
Respectfully, I re- dissent the fact to emphasize In order case. honestly views opposing deference spectfully *9 sincerely Court, entertained by other members I deem to proper to make as preface some statements my to my effort state the basis of dissent.
A a single dissent of neces- member the Court must sarily be stated in the first person singular. Never before I been so have distressed aby decision of this Court. Never before, while member Court, have I been so firmly convinced of expres- basis of and need for an sion of dissent. My only arises from regret recognition of the limitation my to as capacity state dissent I feel it should I shall, nevertheless, be stated. undertake to express my respectfully, dissent but vigorously as as forcefully as my will capacity permit. to
In undertaking disagreement state I feel so keenly, I emphasize, forcefully can, want as I I greater make no claim judicial ability or to greater sensitivity to natural feelings of a mother loving and of her I young daughters than that accord which in the other members of the Court. Court, justifiable in a effort to demonstrate decision,
soundness its placed has the Catholic Church and the Lutheran Church juxtaposition, to emphasize a difference rather than similarity. to make reference to background, this I shall make some references religious two denominations and to Holy upon Bible which, I apprehend, both church denominations have their foundations. Court
I has misconstrued the conten- believe relator tion made counsel reference to to be comity applied of a question judgment court in West and in this miscon- respect has ceived pertinent legal principles should be applied Court, case. I believe that this to re- refusing mother, store of the children has done great equitable violence basic considerations has prior numerous its disregarded decisions which have certain firmly legal principles established which the Court applied deciding should case. *10 as commence, does case, In a decision of this should we ** We should Holy beginning
the “In the Bible: case, February, a of at decision the approach rather, three and Monongah, Virginia, but almost West Germany, years before, Nuremberg, at one-half four 6, 1966, daughters, then when, on the two September and of were secreted years age, respectively, and seven the other by stolen the one from school and respondent, a at that and place from sick bed. We should time start a of fox respondent, acting cunning when with a night, surreptitiously and stealth of thief in the and fraudulently daughters custody, stole the from the young mother, care and a control of with a callous disre- loving gard of and feelings young the natural of mother daughters incomprehensible is inconceivable and an act as of a normal should husband father. We return respondent, time and place where knowing contemplation, that divorce proceedings were of fraudulently deprived jurisdiction German courts a make a lawful adjudication award of where that of could best interests have been made where the mother have been young could best daughters protected. repre- highly
I as regard the acts hensible; insensitivity shocking a display as a fraudu- daughters; as feelings young mother and West German courts deprive lent and scheme to successful would, and a scheme which jurisdiction; fraudulent a to traverse vast ultimately the mother did, require bur- ocean, enormous financial great inconvenience strange among in a strange country a court den, seek, callous, consequences of the rectification people, wrong ingenu- so shameful, and fraudulent reprehensible in West ously by conceived think- obviously lawyer who helpful advice only inci- the ultimate end result ing primarily carrying out the nefarious means of dentally scheme.
If unclean hands litigant ever came into court with in- equitable relief, to seek it was this respondent. genious, reprehensible scheme and commenced conceived Germany has, decision, in West culminated by Court’s in full fruition and success. a “change custody”
The Court has treated this as contrary, case. On the I believe Court should Otherwise, treated it as a custody” “restoration of case. the Court places approval upon condones its stamp reprehensible, callous, selfish scheme conceived *11 the respondent recog- and so carried out. I reprehensibly nize that a wife, husband and living together, while equal rights custody of their child or children. Boos, Boos v. 4 727, syl., W. Va. 117 E. 616. Never- pt. S.
theless, the father had right no to make him- whatsoever self the daughters by exclusive custodian of the the course of action he pursued this case.
This decided, is unlike many cases we have previously Robinson, listed Whiteman v. including those 145 W. 685, 691-92, Va. 116 S. E.2d in each of which mother, by otherwise, or agreement voluntarily surren- dered custody very of her child another. This is of antithesis and logic, reason, equity situation. right, therefore, impose upon we should not the mother the burden of “change custody” that a of establishing would promote the best of No daughters. interests her valid of custody award been made On has heretofore. the contrary, an onerous imposed upon burden should be the respondent why to show should not there be restored to the mother custody deprived by she was which the respondent’s and surreptitious, heartless fraudulent conduct.
An of this case is and aspect significant which most decision, is which, by enigmatic reason of the Court’s is the fact there not one of evidence in the is shred entire record show that the mother is in tending daughters. of her All the sense unfit to resume contrary. The husband does not proof undertake prove her unfitness. brother, her relator privileged to see the with We were day open court on the return physician, discloses deposition rule. Her taken knowledge a fluent intelligence high degree deposition, In her she English language. command studying time medicine testified her sister was I gained a medical doctor. becoming purpose by her of her brother impression most favorable their by reading seeing them in court person country. depositions taken regain seeking in our Court When the mother was force- my of her came to mind so daughters, there fully Deuteronomy chapter of the first portion the bench and prominently has been so referred judicial to our proudly applied bar this nation and so system: time, I your judges saying, “And at that charged brethren,
Hear the your judge causes between brother, righteously every man and his between him. stranger is with persons judgment; “Ye shall not but respect ye ye great; shall hear the small as well man; for the shall not be of the face afraid too hard judgment and the cause that is God’s: *12 for I hear you, me, it unto and it.” bring will (Italics supplied.) and chil- the the that opinion The asserts true country”. perhaps This is citizens this dren “are children; it the but is a in relation to technical sense only they home and residence true, nevertheless, that the stolen, Germany. was in had, they before ever were favor the case in that should decide asserting I am not we or a “stranger” is a merely because she mother I nation, friendly a nation. though a foreign citizen of however, if had a to assert, right that she earnestly do anywhere nation, in our entire place hospitable a expect where, a and in Court, at such sacrifice it was of a mother’s a demonstration boundless heartening to of her regain had love, she come seek willing I am to assert that we daughters. quite young to “lean over backward” disposed should have been mother that unmistakably order to demonstrate a merely not at a because she was placed disadvantage because, in a on the other “stranger” land foreign I country. hand, this “citizen” our be to do purpose believe fervent should of a rightfully expected West German we would entirely present court if the situation were reversed. remove the children majority opinion states: “To religion, their another, change one subject and to in this formative them to different customs of their from the period appear, lives would evidence in- case, this their and best weigh against welfare (Italics terest.” Must the fact supplied.) we overlook stealthily it was the wrongfully father who language created shameful described in situation quoted immediately above? should religion”, their we “to wrong change
If already committed respondent has in mind that bear children unilaterally removing young wrong by parents in which the denomination religious from the being children were married and in which the acquiescence approval apparent nurtured with assumption in an indulges Court of both parents. them to Lutheran the mother would return Possibly to her. so. We if were restored Church so, not, my opinion, do know. But if True, it sense. “change religion” their substantial denomination. But change religious would constitute Church or in Lutheran in the Catholic whether taught religiously to observe Church, the children will be church, con- either will Easter and Christmas. teachings and ex- observe tinue be instructed expressed displayed who ample of Son Galilee children”, rebuked adults love for “little who peculiar feelings to their acts who being insensitive kingdom God.” These said “of such is the *13 religious in either of the two taught, to be will continue spoke of man denominations, repeatedly the same who of fallacy placing emphasis upon a disproportionate possession of terms of or money things. wealth material In majority reference the things, wealth material opinion states in not as relation the mother. “She is well off financially as income respondent, the since his is four or than five times more her income and he owns they home in live, To free encumbrances.” assertion, that flimsy are innumerable there answers. record contains a photograph of the home in which mother lives in In it Germany. seems appearance, considerably average above the standard American dwelling. deposition country, her taken in the mother
testified that her purchasing income had much greater than an power equivalent amount of coun- money in this try. income, Her if she chil- granted custody were dren, only would be used for three persons, whereas husband’s income must large be used maintain his therein, dwelling and persons the seven support living including two children who are unrelated blood to these girls two little or to either of parents. their Court, majority in the opinion, fails to take note fact respondent’s moral and legal obligation to support his children would remain undiminished even if placed in the of the mother. custody may It be that difficulty would be encountered an effort enforce compliance obligation; but, with the if he legal has in his heart the interest the children he professes have, he would voluntarily contribute to the support mother; children while in of their the fine people Monongah his church at would be first to impress upon him the force of this moral obliga- tion. point syllabus majority
The first opinion wholly inapposite to the extent misleading or “foreign awarding decree order” states judicata there has been cir- change res where of such character to render cumstances desirable a to promote of the decree in order modification welfare
711 Stapler in order” decree or “foreign of the child. The Texas, than in rather in a divorce case was entered suit case, has been there country. a In the foreign in instant making This Court is custody. valid of previous no award custody. an initial award of for relator argument
The thrust of the of counsel a in case, believe, I that in this is the divorce awarded I comity. basis of West German court is valid on the relator, for counsel recognize fully, obviously does res an of children never custody that award of infant or in not be modified judicata may the sense cir- a of altered changed upon showing subsequently cus- previous cumstances. This is true where the award a a tody court, in the court of sister was made same state, a foreign country. or court of a a my opinion that,
It is even assumed court if it is in West undertook to make valid award Germany lack for custody, attempted custody award of void jurisdiction. not then in Ger- The children were West no many, and the German court had in personam of the jurisdiction had respondent who children at Monongah in this state. and the contention counsel
My position, argument, and oral as I understand his brief respondent power juris- had the that West German court is not custody, but rather a valid award of diction make jurisdiction court did have in rem German the West divorce. legally valid grant Germany, in West
The defendant in the divorce case notice in case, had actual proper recognized This is proceeding. relation divorce His knew majority attorney opinion. but respon- of the divorce pendency proceeding, in the personal appearance dent elected not to enter action of his counsel or otherwise. either proceeding, rely security posi- he of his Obviously upon elected this state. having tion his divorce, in rem validity of the based on I believe the on the recognized by Court jurisdiction, should principles comity applicable to such a situation. See 2d, Am. Jur. Divorce and Separation, Section page 1103. not deny validity does divorce granted by the fact, West German court. he has recognized it by remarriage on October This Court is bound by principles comity, I believe, to recognize the full validity West German divorce. Furthermore, he is recognize bound to validity *15 its and is deny estopped validity its because otherwise he ais a bigamist and felon under the of this laws state. The respondent apparently like accept part of judgment the of the West German court which granted the escape divorce and the portion judg- ment which found that fault “the the lies with accused.” Additionally, the judgment order states detail the findings court’s of the most abhorrent sort immoral conduct of the respondent in fingering genitals of his very young daughters, kissing them “in an obtrusive man- ner”, lying upon one of daughters in bed. One sentence from the rather extensive judgment order of the West German court contains following specific finding: “The ascertained behavior of the accused was apt to endanger considerably the moral welfare of the children.” specific findings judg- of fact
Irrespective order, ment implicit in the award of the divorce to the finding party wife is the the husband was advantage fault. The seeks take full of the a mere fact of divorce ask this Court to disregard all of the portions judgment divorce are un- findings by to him. The of fact favorable made the court as a part judgment its of divorce substantially testimony the same as the mother taken in this state.
“When a husband and a wife are divorced because of generally marital misconduct of one of them the law award of favors the the inno Rohrbaugh Rohrbaugh, 708, cent v. 136 spouse.” W. Va. 361, S. E.2d pt. syl., 5 68 and numerous prior decisions of
713 To the same therein cited. Court to the same effect 468. (6)b, C.J.S., Divorce, page 309 effect, 27B Section see cared well equally child be “Ordinarily, where the will mother, preference for by either parent, to its years, entitled father, if the child of tender is 622, 146 Beaumont, 106 Beaumont Va. custody.” v. W. Settle, W. effect, v. 117 S. To the Settle E. 618. same see Hughes, v. 476, 480, 859, 861; Hughes 2pt. syl., Va. E. 185 S. Rierson, 404; v. 700, 403, 113 Rierson 698, 169 S. E. W. Va. favoring rule 321, 323, 203, 107 204. The W. Va. 148 S. E. chil the mother is force applied peculiar where Campbell Campbell, v. dren are girls years. tender by stated 61, general Va. 122 E.2d This rule was S. Court, Rey Judge Maxwell, unanimous speaking 652, 653, E. Reynolds, nolds v. 155 S. W. Va. no relator “The adduced follows: evidence further to be wise convinces us that this mother unfit looking responsibility her Godgiven entrusted with exercises child. court after welfare her When child of authority in from mother her taking its great child, course particularly years, tender female *16 And, exist. cogent where the most reasons justifiable only mother, believe that in normal such as we recognizing be, impulse properly the to care deepseated this one life, her controlling thought child is the young her her to charity be thrown around mantle of should may forgotten good be and the may that mistakes end charity fault, none are without be Since emphasized. (Italics supplied.) The position prevail.” should much that of case is than present stronger in the mother Reynolds in the because mother involved decision case, hearing, the time of the son at daughter years age six and particularly and the twelve case, no evidence tends because, present in the whatsoever of unfitness the mother to have any degree to show of her young daughters. care and control custody, following the basis of testimony establishes “* * * he married majority opinion: in the statement 30, 1968, Clarksburg, on October Bienkoski Loretta Virginia, because they had been advised unfavor- able to such marriage reactions performed if Monongah.” (Italics It supplied.) quite understandable that “unfavorable reactions” would arise residents among of Monongah, particularly among and other sensi- parents people, tive including church, respondent’s members because of the prospect of the establishment home for these little sisters to over mother presided by be of the illegitimate children, wholly twin un- being twins related blood to these two little or to sisters either of parents. their That spread mother Monongah now must love, her attention, care and can, among as best she five young children, including recently the one born new marriage.
The Court on a adjudged, wholly has basis inconceivable me, the welfare of these little sisters will best promoted in the crowded household at Monongah, thou- sands of miles from the home of mother comfortable has, who Court, case and in this so impressively demonstrated her love for her only boundless children.
I would grant prayer of the petition and award custody of these little sisters to their loving, heartbroken natural mother be puzzled by who must the manner of administering justice in courts in the United States.
Jennings Tommy Young C. Crockett E.
v.
Larry al., et Andrews, Members W.
Police Civil Commission Service City Charleston, etc., et al.
(No. 12844) February February Submitted 1970. Decided