Abraham v. Abraham

342 S.E.2d 190, 176 W. Va. 224, 1986 W. Va. LEXIS 451
CourtWest Virginia Supreme Court
DecidedMarch 25, 1986
DocketNo. 15972
StatusPublished
Cited by2 cases

This text of 342 S.E.2d 190 (Abraham v. Abraham) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abraham v. Abraham, 342 S.E.2d 190, 176 W. Va. 224, 1986 W. Va. LEXIS 451 (W. Va. 1986).

Opinion

PER CURIAM:

This is an appeal by Yvonne Lee Abraham from a divorce order entered by the Circuit. Court of Cabell County on December 15, 1982. In that order the circuit court awarded the appellant’s husband, Charles Abraham, a divorce on the ground of cruelty and refused to award the appellant alimony and various items of personal property. On appeal the appellant contends that the trial court erred in awarding her husband a divorce on the ground of cruelty. She also claims that the court erred in refusing to award her certain personal property and in refusing to make provision for the payment of her month-to-month expenses. After carefully reviewing the record, the Court can find no reversible error, and, accordingly, the judgment of the Circuit Court of Cabell County is affirmed.

In July, 1982, the appellant instituted a divorce proceeding in the Circuit Court of Cabell County. In her complaint she alleged that she and her husband, Charles Abraham, were married on June 20, 1970, in Oak Hill, West Virginia, and that they had one child, a six-year-old son. She also alleged that irreconcilable differences had arisen between her and her husband. She prayed that she be granted a divorce, custody of the infant child, child support, alimony, possession of the couple’s house, household furniture, furnishings, and appliances, and that she be awarded possession of two of the couple’s four automobiles. She also prayed that the court direct her husband to pay all of the couple’s joint obligations, her attorney fees, and the court costs connected with the proceeding.

In response to the appellant’s complaint, Charles Abraham filed an answer in which he denied that there were irreconcilable differences between the parties. Additionally he filed a counterclaim in which he alleged that the appellant had been guilty of cruel and inhuman treatment, and he prayed that he be granted á divorce.

After conducting extensive hearings, the Circuit Court of Cabell County, on December 15, 1982, entered the order which gave rise to this appeal. In that order the trial judge found that the appellant had been guilty of cruel and inhuman treatment toward her husband, Charles Abraham, and that Charles Abraham was entitled to a divorce on that ground. The judge, however, awarded the appellant care and custody of the couple’s infant child and ordered Charles Abraham to pay the appellant $150.00 per week as child support. Additionally, the court directed Charles Abraham to pay the appellant $400.00 each January and July for clothing for the infant child.

[226]*226In the December 15, 1982, order the trial judge also made rulings which distributed the couple's property. He first decreed that the parties were entitled to all assets to which they had record title. He then granted the appellant exclusive use and possession of the couple’s marital residence and directed that Charles Abraham make all mortgage payments on that residence, and that he pay the taxes, insurance, and the cost of reasonable repairs to the residence. He granted the appellant a 1980 Corvette automobile titled in the name of a medical corporation owned by Charles Abraham and directed Charles Abraham to arrange transfer of the title to that automobile to the appellant. He also directed Charles Abraham to pay certain bills incurred by the appellant prior to September 13, 1982. Lastly, the judge directed that a $12,000.00 income tax refund be divided equally between the parties.

In addition to awarding the appellant the use of the couple’s marital residence, the court granted the appellant the use of most of the furniture located in the residence for . so long as she lived in the house. Also, the court directed that Charles Abraham pay ithe appellant’s attorney fees.

On appeal the appellant contends that the trial court erred in finding that Charles Abraham was entitled to a divorce on the ground of cruelty. She also contends that the court erred in awarding her the marital residence without providing funds for its upkeep and that the court erred in awarding her husband all the’ parties’ personal property on the ground that she was at fault.

In the course of the hearings in the case, Charles Abraham adduced substantial evidence tending to show that his wife had been guilty of cruel and inhuman treatment. He himself testified that on several occasions the appellant had left the cou-pie’s house and refused to tell where she was going. She often did not return until four or five o’clock in the morning. He also testified that a certain young man, Tim Maynard, was at his house at all hours of the night and that he really didn’t know what was going on between his wife and Maynard. He indicated that he and the appellant had gotten into a great number of arguments and that, at times, in the course of the arguments, she pursued him. On one occasion, she locked him out of the house.

A neighbor of the parties, Robert C. Jones, testified that he had seen a young man with blondish hair, who matched the description of Tim Maynard, at the parties’ home on numerous occasions after 11:00 in the evening. Jack Neal, a Magistrate in Cabell County, testified that he knew Maynard and that on June 30, 1982, at 1:00 or 1:30 A.M. he saw the appellant at a Kroger store writing a check on Charles Abraham’s account. Tim Maynard was with her. By chance, Mr. Neal followed the appellant and Mr. Maynard out of the store. He testified that they got into a Corvette and that they eventually went to a motel. Diana Bartrum, a person who knew both the parties, testified that in May, 1982, she had seen the appellant dancing at a restaurant with a gentleman. The appellant introduced the man as her cousin.

Charles Abraham testified that, given all that had happened, he did not feel that he could continue to live with his wife with any degree of safety to his mental or physical well-being, happiness, or welfare.

To contradict Charles Abraham’s testimony, the appellant adduced evidence tending to indicate that she was guilty of no wrong doing and tending to show that Charles Abraham had been cruel to her on a number of occasions.

This Court, in a line of decisions, has recognized that the finding of fact of a trial chancellor, based on conflicting evidence, should not be disturbed unless clearly wrong. The rule, as stated in syllabus point 3 of Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945), provides: “In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against a preponderance of the evidence.” See also, S.L.M. v. J.M., 174 W.Va. 46, 321 S.E.2d 697 (1984); Rollyson v. Rollyson, 170 W.Va. 329, 294 S.E.2d 131 (1982); Sandusky v. Sandusky, 166 [227]*227W.Va. 383, 271 S.E.2d 434 (1981); St. Clair v. St. Clair, 166 W.Va. 173, 273 S.E.2d 352 (1980); Belcher v. Belcher, 151 W.Va. 274, 151 S.E.2d 635 (1966).

In the case presently before the Court there was substantial evidence that the appellant spent time with a man, or men, other than her husband at differing times of the day or night.

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391 S.E.2d 748 (West Virginia Supreme Court, 1990)
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Bluebook (online)
342 S.E.2d 190, 176 W. Va. 224, 1986 W. Va. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abraham-v-abraham-wva-1986.