Patricia Ann S. v. James Daniel S.

435 S.E.2d 6, 190 W. Va. 6
CourtWest Virginia Supreme Court
DecidedJuly 23, 1993
Docket21474
StatusPublished
Cited by8 cases

This text of 435 S.E.2d 6 (Patricia Ann S. v. James Daniel S.) 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
Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 190 W. Va. 6 (W. Va. 1993).

Opinions

PER CURIAM:

This action is before this Court on appeal from the February 14, 1992, order of the Circuit Court of Raleigh County, West Virginia, which granted the parties a divorce upon the grounds of irreconcilable differences. The circuit court awarded custody of the parties’ three children, Jason Clark, now fourteen years old; Justin Scott, now eleven years old; and Jennifer Elyse, now seven years old, to the appellee, James Daniel S.1 On appeal, the appellant, Patricia Ann S., asks that this Court reverse the decision of the circuit court insofar as that she be granted custody of the children. This Court has before it the petition for appeal, all matters of record, and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is affirmed, in part, and this case is remanded, with directions.

I

The parties were married on February 4, 1967, in Beckley, Raleigh County, West Virginia. Three children were born of the marriage. The appellant was a kindergarten school teacher but left her employment upon [9]*9the birth of their first child. The appellee is an architect.

The appellant instituted this civil action by filing a complaint on July 25,1990. A temporary order was entered on November 28, 1990. The appellee was granted temporary custody of the parties’ two sons, and the appellant was granted temporary custody of the parties’ daughter. The parties appeared before the family law master on numerous occasions. On January 10, 1992, the family law master submitted his recommended decision to the circuit court. Among other things, the family law master recommended that the appellee be awarded custody of the three children. Both of the parties submitted their exceptions to the circuit court regarding the family law master’s recommendations.

On February 14, 1992, the circuit court judge affirmed the findings of fact and conclusions of law as recommended by the family law master.

On March 18, 1992, the circuit court judge granted the appellant’s motion to stay the execution of the final order, and custody of Jennifer remained with the appellant for an additional ninety days. Following the expiration of the ninety-day period, the appellant moved to extend the appeal period and she renewed her motion to stay the execution of the final order. On July 16,1992, the appellant was granted a thirty-day extension in which to file an appeal with this Court. Her request for an extension or continuance of the order staying the execution of the final order was denied. Since July 16,1992, to the present, the appellee has had custody of Jennifer.

It is from the February 14, 1992, order of the circuit court that the appellant appeals to this Court.

II

The primary issue in this case is the appellant’s contention that she should be awarded custody of the parties’ children. In support of the appellant’s contention, she cites three points of error committed by the circuit court in granting custody to the appellee: (1) the circuit court erred in failing to find that the appellant was the primary caretaker; (2) the circuit court erred in utilizing psychological experts prior to the circuit court’s determination as to who was entitled to the status of primary caretaker;2 and, (3) the circuit court erred in granting custody of the children to the appellee.

The appellant’s first argument is that the circuit court erred in failing to find the appellant was the primary caretaker of the three children. The circuit court found that both parties were fit parents and they shared the child care duties; thus, neither party was granted the status of primary caretaker.

The parties agree that the guidelines for establishing custody are clearly set forth in Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981). We defined primary caretaker, in syllabus point 3 of Garska, as “that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child.” The law presumes that it is in the best interests of young children to be placed in the custody of the primary caretaker. Id. at syl. pt. 2.

It is the circuit court’s responsibility to determine which parent is the primary caretaker. Id. at syl. pt. 4. In Garska, we listed the factors to be considered by the circuit court in making this determination. However, in syllabus point 5 of Garska, we pointed out, “[i]f the trial court is unable to establish that one parent has clearly taken primary responsibility for the caring and nurturing duties of a child neither party shall have the benefit of the primary caretaker presumption.”

It is clear from the evidence that the parties shared the primary caretaker duties as discussed in Garska. While the evidence presented established the fact that the appellant was the homemaker and the [10]*10appellee was the wage earner, this Court has recognized that the length of time a parent has alone with a child is not determinative of whether the primary caretaker presumption should attach. See Dempsey v. Dempsey, 172 W.Va. 419, 306 S.E.2d 230 (1983). The appellant was at home for the children when they would return from school while the ap-pellee would work throughout the day. However, the appellee was also a substantial participant in the child care duties once he came home from work.

With respect to the child care duties, the appellant testified that she was a night person, meaning she would stay up late at night and sleep later in the morning. As a result, both parties testified that the appellee would be responsible for getting the boys ready for school and fixing their breakfast. Both parties further testified that the appellant would primarily plan and prepare the evening meals on the weekdays, but on the weekends the appellee would often prepare the evening meals. The parties also testified that they shared the responsibility for getting the children ready for bed each night.

In terms of school and social activities for the children, the evidence is indicative of the fact that both parties were active in their childrens’ social lives. The appellant; Natalie Blankenship Coots, Jason’s sixth grade teacher; and Joyce Mills, Jason’s and Justin’s second grade teacher, testified that the appellant participated in PTO (Parent Teacher Organization) meetings and school activities. Mrs. Mills also testified that the appel-lee was involved with the childrens’ school activities; and, the appellee testified that he was instrumental in helping the children with their homework in the evenings.

Furthermore, each parent organized and participated in social activities with the children. The appellant; Mrs. Peggy Giompalo, whose mother lived in the same neighborhood as the appellant and appellee; and Mrs. Anita Allen, the appellant’s cousin, testified that the appellant would organize birthday parties for the children, and she would often host pool parties for the children and their friends at the parties’ home. On the other hand, the appellee would arrange and participate in camping, hiking and biking trips as well as other sporting events with the children as attested to by the appellee; the appellant; Nancy Jo S., the appellee’s sister-in-law; and Reese and Ron Webb, Jr., the appellee’s sister and brother-in-law.

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Bluebook (online)
435 S.E.2d 6, 190 W. Va. 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patricia-ann-s-v-james-daniel-s-wva-1993.