Robert Darrell O. v. Theresa Ann O.

452 S.E.2d 919, 192 W. Va. 461, 1994 W. Va. LEXIS 273
CourtWest Virginia Supreme Court
DecidedDecember 20, 1994
DocketNo. 22307
StatusPublished
Cited by5 cases

This text of 452 S.E.2d 919 (Robert Darrell O. v. Theresa Ann O.) 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
Robert Darrell O. v. Theresa Ann O., 452 S.E.2d 919, 192 W. Va. 461, 1994 W. Va. LEXIS 273 (W. Va. 1994).

Opinion

PER CURIAM:

This is an appeal by Theresa Ann O. from an order of the Circuit Court of Kanawha County denying her petition for custody of her two infant children, the custody of whom [463]*463was previously awarded to her former husband. On appeal, the appellant claims that the evidence adduced demonstrates that the circumstances of the parties have changed and that the change of custody which she seeks will materially promote the welfare of her children. Under the circumstances, she claims that the Circuit Court of Kanawha County erred in denying her petition for modification of the previous custody award and for custody of the children. After reviewing the documents filed and the issues presented, this Court agrees with the appellant. The judgment of the Circuit Court of Kanawha County is, therefore, reversed.

The parties to this proceeding, Theresa Ann 0. and Robert Darrell 0., were divorced by order of the Circuit Court of Kanawha County entered on August 14, 1989. The final order incorporated a settlement agreement dated January 10, 1989, in which the parties agreed that Robert Darrell 0. would be granted custody of the parties’ two infant children, A.L.O., who is now twelve years old, and E.C.O., who is now ten years old. The settlement agreement also provided that the appellant was to have extensive visitation with the children.

After entry of the final divorce order, the appellant married a captain in the United States Army, who was subsequently stationed in Germany and in Virginia. He and the appellant now reside in California.

Over the years, the appellant has had extensive visitation with the children, including lengthy stays by them with her in Germany and in Virginia.

During the children’s last visit with the appellant in California, she found her youngest child in the bathroom crying. When asked why he was upset, he told the appellant that he could no longer take beatings from his father.

After questioning the children extensively, the appellant learned that, according to the children, they had been subjected to frequent and excessive corporal punishment, including once when the appellant’s daughter was beaten by her father at the drive-in window in a bank in Charleston, West Virginia.

The appellant investigated the children’s stories and found that a teller at the drive-in window at the bank had actually reported to the West Virginia Department of Health and Human Services that the appellant’s daughter had been beaten in the car by her father while conducting a drive-through banking transaction and that an investigation of the incident had resulted.

After learning this information, the appellant filed a petition in the Circuit Court of Kanawha County for modification of the previous custody award and for custody of the parties’ children.

Hearings were conducted following the filing of the petition for modification of custody. During the hearings, Ingrid Schwartz, a child protective service worker for the West Virginia Department of Health and Human Services, and Vanessa Lynn Connor, the bank teller who witnessed the beating at the Charleston bank, testified. The parties’ two children also testified in camera. Ms. Schwartz testified that she was assigned to investigate the case after the Department received a phone call stating that a woman had witnessed Robert Darrell 0. hitting his daughter. She interviewed both children and testified that:

Basically they both stated that there was an argument in the ear. They did not disclose that [Robert Darrell 0.] had struck his daughter. And I remember [E.C.O.], the son — I asked him if he had seen [Robert Darrell 0.] hit his sister and he said they started arguing and he looked the other way.

On cross-examination, Ms. Schwartz testified that she asked the daughter if her father had hit her, and the daughter replied, “No.”

The second witness, Vanessa Lynn Con-nor, the bank teller who witnessed the beating at the bank, testified that the appellant’s former husband had driven to the teller window and that a little girl was in the passenger seat in the front of the vehicle. While conducting a banking transaction, Ms. Con-nor testified that she looked up and saw the man hitting the little girl. She indicated that the man, whom she could identify from the transaction process, repeatedly hit the little girl with his forearm. She testified:

[464]*464A. ... And he was hitting her — It was about in the chest area. And he was hitting her repeatedly very hard.
Q. When you say repeatedly, did you see how many times he struck her?
A. I didn’t count. I was in so much shock. It was several times.
Q. Did you notice the little girl’s reaction?
A. She was crying very hard. When he stopped she had her school books up around her chest like a shield. I have never seen a look of fear like I did on her face. She was terrified.

Ms. Conner then identified the appellant’s husband from recognition as the party who did the striking.

In discussing the incident at the bank, the appellant’s daughter, who was eleven at the time of the hearing, testified that on the day of the beating at the bank, she had failed to brush her teeth and the father noticed that fact. She stated that “[h]e excessively smacked me on the lower part of the body.” When asked if he had done that before, she replied that he had and added that her brother was hit more than she was.

The appellant’s daughter also stated that on one occasion, when she was in the second grade, her father hit her fifty to sixty times on the rear and that it had turned black and blue and stayed black and blue for two days. She also said that her father, on occasion, had struck her brother. She testified:

He [her brother] had left his race car out in the rain and when he went to get it Dad got all mad and he smacked [E.C.O.] once, you know, just once or twice and he made him throw it away even though it still worked. He sometimes has a bad temper. He’ll yell at us if we spill our milk.

During the hearing, the appellant’s daughter further testified that she did not want to live with her father when she went into puberty. She indicated that she had discussed this with her mother, the appellant, but that this was her own idea, not her mother’s idea.

The appellant’s son, who was nine at the time of the hearing, testified that he had always wanted to live with his mother and did not know how he had come to live with his father. Relating to his reason for wanting to live with his mother, the appellant’s son testified:

A The reason why — Some of the reason I want to live with Mom is I’m tired of being slapped.
Q. Oh. Did he slap you?
A. Yes. He slapped me several times. Q. When did he slap you?
A. So many times I can’t remember.
Q. Does he get mad?
A. Yes. He gets mad very easily and he drinks quite a bit.
Q. He does?
A He drinks coke with wine in it, or he has two or three beers.
He further testified:
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
452 S.E.2d 919, 192 W. Va. 461, 1994 W. Va. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-darrell-o-v-theresa-ann-o-wva-1994.