*1 ANDERSON, formerly K. Linda Linda

Kay Newman, Below, Plaintiff

Appellant, NEWMAN, R. Defendant

Victor

Below, Appellee. 21501.

No.

Supreme Appeals Court of Sept.

Submitted 15, 1993.

Decided Dec.

Dissenting Opinion of Justice

Workman Buckhannon, Law, appellee.

Roy D. appel- Dieringer, Clarksburg, for Scot S. lant.

PER CURIAM: Newman from appeal is an Linda This of the Circuit order an October County granted cus- Upshur Court of to her for- tody Appellant’s children husband, Newman. The Appellee Victor mer to reverse the urges this Court to award court and of the lower *2 578 Upon arriving Washington in of the children to her. We affirm what was initially to have

the decision of the lower court. been vacation and a visit to brother, Appellant

the the decid- 21, February in ed to remain that state. On I. 1992, requiring an Order was entered the divorced Linda and Victor Newman were Appellant supply phone to numbers and ad- 23,1990, on March after an intermittent five- 1992, the In dresses of children. the year separation.1 Two children had been Appellee Washington in visited the children Nicholas, January marriage, of the born born 1992, without incident. thé summer of 21, 1985, Alexander, August and born however, parties attempted arrange the to order, 1987. Pursuant to the initial divorce boys fly summer vacation which the granted custody Appellant the of both Virginia to West to visit their father. The boys, Appellee was awarded limited parties apparently agreed Appellee Appellee’s rights The to would make reservations the children to visit his children had been restricted based fly Pittsburgh on USAir from Seattle to primarily upon occurring in an incident De- June where would be met cember 1988 which Alexander’s foot had transported their father and to his home injured been while he was under his father’s Appellant presented Buckhannon. the When Appellee, despite alleged The care. the seri- Seattle, flight the children for their injury, ousness of the had failed to take however, younger she was informed that the hospital. Alexander to the Statements from young fly child was too to an without adult. ' physician who later examined the foot indi- Appellee apparently erroneously The had re- sought cated that the father should have ported age the child’s as five instead of four. injury. immediate medical attention for the Appellant was unable to contact the physician opined further that the failure Appellee in Buckhannon because he had al- procure to medical assistance should be con- ready begun trip Pittsburgh his to meet determining sidered in the father’s visitation the children. when the ar- rights. Consequently, the re- Pittsburgh, surprised rived he was to dis- quired to receive written instructions for the permit- cover that the children had not been care of the children and was further plane. Upon discussing ted to board the qualified to hire a care worker to assist situation with officials of USAir at the air- during him visitation.2 port, allegedly permission he obtained for the 17, 1990, Appellant On March married flight day. children to make the later that George Anderson. and Anderson She Mr. telephoned Appellant He then in- separated, were later and she and the present structed her to the children at the Washington dren to the moved state airport flight. for a Seattle different November 1991. Prior to that relocation to so, Appellant having spe- refused to do Washington, only significant dispute over cifically informed officials Seattle that arrangements or visitation involved a younger permitted child would not be contempt charge against Ap- June fly without an adult. pellant refusing permit previously scheduled visit between children and the On June contacted Appellant3 and informed her that he was Appellant presently years age, pm 1. The pick up between 5:30 and 6:30 the chil- years age. is 54 According testimony Appel- dren. lee, Appellant lawyer informed him that her requirement 2. The for the child care worker was had said she did to talk to him and then phased pursuant subsequent out to a order in hung up. Appellant receiving admits telephone call and testified that she understood that it was the intention to come to According telephone log Ap- to a admitted Washington accompany the children to West pellee's exhibit number a one-minute tele- Virginia. She testified that she informed him phone Appellant call pm. was made to the at 7:59 itinerary right" was "not and that she testified that he told the arriving attorney. that he day would be needed "some assurances” from her Seattle the next failing to find the lower court erred in the children flying to obtain pay accompany contempt back to West for failure them (3) obligation support, he arrived at home When entire lant, he discovered finding contempt her in court erred the home. He then left of court. *3 Washington presented to law en- this matter in Appellant The is correct her assertion as forcement authorities a child concealment a simply more than that Cloud attempt in an to which resulted official case showing justify to change of of circumstances The locate the children. also ob- change custody. agree with the in We a in attorney the of an Wash- tained services Washington court that the relocation to lower ington, corpus proceeding and a habeas was change a of circumstance could be considered Appellant children held. the were feasibility of permitting inquiry into the located, physical the obtained custody, Appellant does transferring 9, custody July of on 1992. The argu- Her appear argue not otherwise. Appellant residing and the children had been well-taken; is, however, the existence by Appellant’s boy- ment in a trailer owned the accompanied change of in does not auto- friend. The then the circumstance Virginia matically custody. in justify change where children West approximately sixteen months. suggests remained for court was Appellant that the lower jus- presented with sufficient evidence to August hearing A was held on change custody tify its that a conclusion petition Appellee’s the for modification warranted. was request Appellant of and his that the By contempt be held in court. order n hearing the adduced at evidence Appellant the entered October was court demonstrated several instances contempt granted was held in Appellant the had interfered with Appellee. the She had Appellee’s rights to visitation. the provide the with reluctant to II. Washington, and her the new address the Appellant contends that low arrangements ap- with interference finding change er erred in court temporary in her aban- peared to culminate justified a in this matter circumstances in fa- Washington residence donment of syllabus change custody. Pursuant boyfriend the residing while vor of with 45, 239 point 2 of v. 161 W.Va. Cloud them. looking was children’s father change 669 “[to] S.E.2d original problem with the While addition to child flight Virginia could be char- dren’s parties, must be circumstances an circumstance unfortunate acterized materially shown that such faulted, party could be which neither Accord, promote of the child.” the welfare secreting the act of Appellant’s deliberate 692, 425 Phillips Phillips, v. had been informed children when she (1992); Hey, R. v. 185 Judith coming to exercise visita- their father was (1990); 405 S.E.2d 447 Weece W.Va. rights innocently character- cannot be tion (1986). Cottle, 131 W.Va. S.E.2d readily or dismissed.4 ized According allegations Appellant, of the lower Subsequent showing no made such court, performed (1) a psychological evaluation Appellant contends that further Seattle, (2) N. Asher of Wash- by Dr. Kenneth Appellee is unfit to care for at the lower evidence submitted 4. Other When asked if she understood them, report effect, submitted level included "coming be out to escort progress in first regarding lant Nicholas' them, Virginia, trip to West return Washington. remarks grade The teacher's vacation,” eight-week Appellant re- ad- made a smooth that Nicholas had indicated affirmatively. sponded good justment and had a attitude. to the class ington, Appellant.5 was obtained Dr. live with their mother and also commented smoking Asher examined Nicholas and Alexander on on his father’s habit and the social 29, 1992, approximately December seven Appellee’s ability activities which limit the Virgi- months after their relocation to West spend time with his children. boys ages nia. The were seven and five at Dr. Asher concluded that visiting the time of the evaluation and were provide could a more suitable home for the their mother for the Christ- note, however, full, children. He did that a holidays. mas The evaluation had been re- independent evaluation should quested by to assess the chil- performed by impartial professional an perception parents dren’s of their and their family. familiar with these children and this feelings concerning custody arrange- own suggested Dr. Asher also ments. The was not offered an *4 “living childrearing and environment ... opportunity participate in this evaluation investigated by appropriate should be procedure. Additionally, as Dr. Asher noted authorities, protective appears as it evaluation, supporting his no documents neglectful have been and detrimental to all reports, reports, such as school medical [referencing three children statements, neighbor and friend etc. were daughter boys].” and the two sought. Dr. Asher observed that the report has also submitted a children, ages lant had other fifteen and Tacoma, Bayrakci Washing- Dr. Cemil twenty-four, Appellee had other chil- ton, Bayrakci explained which Dr. that dren, including fourteen-year-old daughter physical examination of the children indicat- residing with him in West Dr. history ed a of asthma in Nicholas.6 Dr. despite

Asher noted that that fact that Nich- Bayakci pointed smoking very out that and olas Alexander had health in- concerns children, detrimental to the health of the cluding allergies, asthma and particularly allergies with and asthma. allegedly cigarettes smoked of the children. also submitted evidence of progress the children’s in their school personal In the interviews with the chil- April Buckhannon. a letter dated dren, Nicholas, Dr. age Asher observed that second-grade Nicholas’ teacher seven, de- preference stated his remain well-adjusted him happy, boy. scribed as a Washington with his mother. Nicholas ex- The teacher also remarked that his father plained regularly that he attended church very had been involved in Nicholas’ education only occasionally with his mother and with and had contributed materials to the class- his father. Nicholas described his father as room, class, had visited had attended being unavailable to the due to his conferences, parent-teacher store, partici- and had work schedule at his furniture his so- pated Program. cializing, a Read-Aloud paperwork or his need to do at home. kindergarten Alexander’s teacher explained information,

Nicholas supplied that his mother was a Buckhannon also dated cook, very good April that he progress wished to remain on Alexander’s un- mother, with his and that he did not want to der the care of his father. She indicated that reside with his father. Dr. Asher also helpful noted had been a and con- various indicia of parent nervous behaviors in Nich- cerned and described Alexander to be inability concentrate, kind, olas such as softspoken, friendly. demand- and She men- attention, ing of picking body, frequently at his and tioned that Alexander makes Alexander, problems. five, asthma age projects men- crafts and father and with his shares tioned that preferred he and his brother them with the class. The was de- Obviously, again, the lower report court did not have the 6. Once submitted this Court, performed by benefit of the to this and the lower court did not have evaluation Dr. Asher report the benefit of this in its approximately determination. two months after the final order Bayrakci Dr. did not examine the children until was entered in the lower court. approximately two months after the final order of the lower court was entered. respect action such and and its with scribed an áctive homeroom father appeal un not be disturbed on Program. The matters will volunteer for Read-Aloud clearly appears such discretion students on that had also worked with less ” Nichols, Syl., Nichols v. projects chaperon had abused.’ unit served as a has been (1977). Accord, 514, 236 many trips. field 160 W.Va. M., Margaret M. v. David Appellee’s housekeeper, An affidavit of the (1989). S.E.2d 19, 1993, was dated also submitted. employed by had She indicated that she addressed When matter was May per- since 1992 and had court, it it evidence of the lower had before changing laundry, formed duties of bed cooperating recalcitrance linens, general housekeeping tasks on rights the fulfillment of the visitation Monday, Wednesday, Friday for four to granted Appellee. Despite the lower per day. five hours She had observed specific finding court’s failure enunciate children’s interaction with their father that the children’s welfare would be material always ap- noticed ly promoted peared good spirits. They had a to be implicitly by determining held lower court good relationship with their and were father was warranted always clean and well-dressed. by citing variety of reasons *5 acquaintances Affidavits of of the great placed The lower court em decision. neighbor, by A affida-

were also submitted. phasis on the removal of chil vit observed that the dated dren from their new home actively involved in the edu- was of to the trailer of and her relocation them cation of children and was a co-chairman boyfriend approximately for two weeks. her neighbor fund-raising of a PTO event. recognized that The lower court further she that the had built a reported also despite in this manner had behaved go-cart boys, a fish -with the had created right knowledge that the pond yard, and had them on in the taken and that during this time he visit outings trips. neighbor, numerous them. attempting in fact to locate was ages children of mother of two near extremely It is unfortunate these Alexander, opined Ap- Nicholas parents have young children that their more pellee an attentive father and had was custody cooperate to attain a ar- unable spend time to with his children since to the rangement which would be beneficial recent retirement. upon Under circumstances children. court, presented the lower the evidence III. however, cannot lower we conclude case, other This not unlike most clearly abused its discretion trans- court address, quite custody child matters we custody ferring to the We have precise are question we troublesome. thoroughly reviewed the evidence submitted asked is whether the lower to answer court, subsequent to the decision of the justified deciding, upon based our conclu- evidence does not alter and such it, that of the evidence the welfare before regard. in this sion by materially promoted children would be Furthermore, examined the we have transferring custody from mother to under the lower court addressing question, we circumstances their father. not that the should of determined must in mind that determination bear pay contempt failure custody set a show held shall not be aside absent it was determined support. ex While ing of abuse of discretion. As we clear support pay in child Caraway Appellee was arrears syllabus point 2 plained in of hearing ments, payment at the he tendered Caraway, 183 W.Va. 395 S.E.2d “ As of large portion the debt. alimony and of ‘[questions relating hearing, was in of the of the chil date to the maintenance Because he in the amount of of the arrears $1260. the sound discretion dren are within paid of that amount of taken the lower court on this issue as $880 court, required by the lower the court chose not to hold and there was no real contempt. analysis majority’s opinion. him in affirm We also that deci- issue Furthermore, substantially sion of the lower court. the Court seemed instability more concerned about consequently We affirm the decision of the father’s, mother’s domestic life1 than the al- Upshur County. Circuit Court of though the evidence reflected father rarely to the available children due to his Affirmed. active social and work life. WORKMAN, Justice, got any What lost the shuffle was real dissenting: Chief relationship party examination of the each

(Filed 1993) any real consideration of majority agrees with the result their emotional needs. court; therefore, achieved the lower court, The lower and this Court tacit goes great lengths legal approval, primarily relied on the recalci- foundations which the decision of the accommodating trance of the mother in apparently lower court was based. rights. former husband’s visitation cooperative mother in affording was less than order, may It be that modification is in but the father his visitation This is a the evidence before the circuit court was matter, only perspective serious not entirely inadequate support and did not parent’s rights, of non-custodial but also from previ- under the standard perspective right of a child to a ously enunciated this Court. relationship continued with his non-custodial Legally, extremely uncompli- this case is parent.2 There are other remedies for such Any change cated. should non-cooperation, especially there is when *6 very simple be based but sound long a track record of it. Recalcitrance expressed syllabus point standard 2 of permitting visitation does not in and of itself Cloud v. 239 S.E.2d 669 justify finding that the best interests of the (1977), recognized by majority. That by changing children would be served their syllabus point states that “[t]o custody. change in addition to a incredibly What was so absent from those parties, in circumstances of the proceedings any evidence of what level must be shown that such would mate- of emotional bond the children had with each rially promote the the child.” welfare of parent. added). (emphasis syllabus point, like regarding most of our other decisions The evidence submitted connection with children and their appeal makes the inter- indicated that the children en- joyed ests and welfare of .the strong children the chief emotional bond with their consideration. There doing educationally was scant evidence mother and were well grossly inadequate 1. The lower court cited its concern that It is difficult times, mother had been married three and as to significant relationship to maintain a with a child "relationship Ayers.” Testimony with Mr. weekend, parent only every sees other Ayers revealed that Mr. ais man whom the seems to be the standard court-ordered visita- through mother had met church and had judge, strongly I tion. As a circuit felt that non- dating. been There was no evidence that she (and children) parents custodial were short- Ayers and Mr. had had sexual relations in the changed when orders of visitation were not fash- any of the children and no evidence of relationship ioned to build a continued between relationship upon harmful effect of this the chil- Justice, Supreme the two. As a Court I have emphasized Hey, dren. We in Judith R. v. spoken urging before the Judicial Association W.Va. relationship 405 S.E.2d 447 that such judges implement visitation schedules de- any presumption does not raise signed accomplish goal. this Children of di- against parent original- continued obviously they vorce are far better off if can ly custody. awarded relationship-with parents. continue a both Family judges 2. law masters and circuit routine- fathers) ly parents (usually afford noncustodial evalua- emotionally. psychological evidentiary pro- subsequent tion done Virginia, Plaintiff STATE West reports ceedings reflect basi- and the school Below, Appellee happy well-adjusted children who were cally certainly it would their mother. While on a unfair to base WILSON, Defendant Blaine K. did report in which the father psychological Below, Appellant. opportunity participate, not have an No. 21680. have of evidence that should

was the kind Appeals of Supreme Court of presented by both sides and considered by the lower court. Sept. Submitted (historically long, habi- far too courts

For fifty who by well-meaning men over tuated Decided little the father did come from an era where children) treated nurturing of every custody disputes in almost con- rights, with competing sets of adults’ text as of the emotional

little real consideration of the children.

needs and wants young suggested here that

It is not preferences, as express

dren be al- usually only aggravates children’s

ready-divided loyalties and torn emotions. examining parents good in a

But rather than (since in guy analytical framework

guy-bad cases, good many there are no of these guys), courts should look at the

guys or bad they do lives of the children. Who

emotional night they are sick? do

cry for at when Who happy there’s news to run to when want short, are the chil- with whom

to share? *7 closely most bonded?

dren evidentiary before us scanty record manifestly inadequate to demonstrate materially the children.

promote the welfare of legal human standard was

neither the nor immense and dramatic

met to make such an boys. This these little

change in the lives of remanded for should have been

case interests.

taking of evidence on their best