Clark v. Clark

164 S.E.2d 685, 209 Va. 390, 1968 Va. LEXIS 245
CourtSupreme Court of Virginia
DecidedDecember 6, 1968
DocketRecord 6759
StatusPublished
Cited by15 cases

This text of 164 S.E.2d 685 (Clark v. Clark) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Clark, 164 S.E.2d 685, 209 Va. 390, 1968 Va. LEXIS 245 (Va. 1968).

Opinions

Snead, J.,

delivered the opinion of the court.

On June 30, 1965, William Sinclair Clark, hereinafter referred to as complainant, filed a bill of complaint praying that he be granted a divorce a vinculo matrimonii from Kay Eunice Clark, hereinafter referred to as defendant, on the grounds of desertion and adultery, and that he be awarded custody of the infant son, Kevin, born of the mar[391]*391riage. The defendant filed an answer and cross-bill in which she neither affirmed nor denied the charge of adultery, but alleged that her husband had constructively deserted her for a period of more than one year and asked for a divorce on that ground. She also alleged that two children were bom of the marriage, Kevin and Jason, and prayed that she be awarded their custody, and that complainant be required to pay alimony as well as support and maintenance for the two children. The matter was referred to a commissioner in chancery to take evidence and file a report. Before the commissioner heard evidence, defendant was permitted to file an amended cross-bill in which she asked for a final decree of divorce on the ground that the parties had lived separate and apart for more than two years.

The commissioner filed his report on December 6, 1966. In it he found, among other things, that defendant wilfully deserted complainant on June 13, 1964; that she had committed acts of adultery, and that complainant was not the father of Jason. He recommended that complainant be granted a divorce a vinculo matrimonii and that custody of Kevin remain with defendant. The complainant excepted to that part of the report relating to the custody of Kevin. Thereafter, the chancellor heard additional evidence ore tenus. By a decree entered January 31, 1967,. the exceptions to the commissioner’s report were overruled, the report and findings of the commissioner were confirmed, complainant was awarded a divorce a vinculo matrimonii on the ground of adultery, and custody of Kevin was awarded to defendant. We granted complainant an appeal.

The sole issue presented in this appeal is whether the chancellor erred in awarding custody of Kevin to defendant, the mother, instead of to complainant, the father.

The evidence is not in material conflict and may be summarized as follows: On April 20, 1963 William Clark, age 25, and Kay Eunice Genert, age 22, were married at Fort McClellan, Alabama. Both were members of the Armed Forces and stationed at Fort McClellan. On October 11, 1963 Kevin was born. In January, 1964 complainant, after receiving his discharge from the Navy, moved with his wife and child to Atlanta and enrolled in Georgia Institute of Technology to study for a masters degree in engineering. The defendant secured employment and the complainant said that he “worked as a research assistant” at the Institute. Baby-sitters were employed to care for the child during the day.

Several months prior to June, 1964 it became apparent to defendant that marital difficulties were developing. Later she decided to leave [392]*392her husband and take Kevin with her. She advised complainant’s parents, Mr. and Mrs. John D. Clark, Sr., of her plans and requested that they permit her and the child to live with them in their home in Fairfax, Virginia. Complainant’s parents were agreeable to the suggestion, so they drove to Atlanta and brought defendant and Kevin back to Fairfax about the middle of June, 1964. Soon after her arrival defendant asked her mother-in-law whether there was any objection to her having dates. Mrs. Clark, Sr. advised against the proposal because defendant was a married person.

Shortly thereafter, defendant commenced going to parties with Eleanor Clark, her sister-in-law who was unmarried and lived in the same household. At one of these parties in July or August defendant became acquainted with a man named England. Later, on three different occasions, she accompanied England to his apartment after similar parties, got in his bed, and there had sexual relations with him. On another occasion they had sexual relations in a parked automobile. As a result of one of these illicit relations defendant became pregnant.

In February of 1965, defendant took Kevin to New York ostensibily to visit her home there. While in New York she gave birth to a boy, who was named Jason, on June 7. The defendant admitted in her testimony that this child’s father could be no one other than England. Mr. and Mrs. Clark, Sr. learned that defendant had given birth to Jason and contemplated returning to the Fairfax area with the children. Primarily out of concern for Kevin, Mrs. Clark, Sr. telephoned defendant in New York and told her that she could return to the Clark home and remain there until she found an apartment. The defendant and her two children returned to Fairfax and lived with Mr. and Mrs. Clark, Sr. for approximately four weeks and then moved into an apartment which defendant rented in the vicinity of Fairfax.

In December, 1964 complainant completed his course at Georgia Institute of Technology and received a masters degree in engineering. Immediately thereafter he returned to his parent’s home in Fairfax and saw his son for the first time since he (Kevin) left Atlanta in June, 1964. The complainant testified that because of his class schedule, the distance involved, and the lack of funds he had been unable to see his son before this time. About two days after complainant’s arrival defendant took Kevin to New York to spend the Christmas holidays with her relatives. After staying with his parents during the Christmas season, complainant secured employment with Hittman [393]*393Associates in Baltimore and established his residence just outside of the city. In January, 1965 he began sending support money to his wife. After he learned of defendant’s pregnancy he sent money for the support of Kevin only. The complainant has made frequent trips to Fairfax to see his son since he was brought back from New York in June, 1965.

The record shows that complainant is a fit and proper person for custody; that each parent loves Kevin and that he is happy with each of them. The same situation exists between the child and his grandparents who are well respected in the community. At the time of the hearing defendant was employed by the Institute For Defense Analysis at a net annual salary of $4,800 and worked between 8:30 a.m. and 5 p.m. Kevin and Jason were cared for during her working hours by a baby-sitter, who is a neighbor and friend of Mr. and Mrs. Clark, Sr.

The defendant has a high school education, and both of her parents are deceased. She has no income other than what she earns. Mr. and Mrs. Clark, Sr., who are college graduates, stated that defendant had done a “good job” caring for Kevin, and that if custody were granted complainant they would be willing to help look after Kevin.

The complainant, who was earning $10,800 annually, testified that he had decided to change jobs and locate in the Fairfax area in order to be closer to Kevin, and that if custody of the child were awarded him, he planned to temporarily leave him with Mr. and Mrs. Clark, Sr., and continue the same baby-sitter in order not to “change his setting drastically” until he could make arrangements to care for Kevin himself. He further stated that he would be willing to make whatever arrangements the court might suggest.

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Clark v. Clark
164 S.E.2d 685 (Supreme Court of Virginia, 1968)

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Bluebook (online)
164 S.E.2d 685, 209 Va. 390, 1968 Va. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-va-1968.