JUDITH R. v. Hey

¶1concurring in part, dissenting in part:

¶2I concur with the majority opinion in its findings of fact and conclusions of law dealing with child support and resulting in the award of a writ of mandamus that, on remand, orders this case referred to a different judge in the Thirteenth Judicial Circuit. However, I disagree with the sections of the majority opinion referred to as “Alimony” and “Child Custody.”

¶3In the case at hand, the record discloses that Judith R. had moved into a house with a man and his children for the purpose of having a home and living as a family. As a result, the circuit court relieved Mr. R. from making any further alimony payments, and Judith R. appealed. The majority reversed the circuit court and ruled that the alimony should be reinstated despite Judith R.’s living arrangements. The majority ignores the fact that had Judith R. married the man she was living with, the alimony would have ceased.

¶4Is the marriage certificate the reason the alimony ceases? I think this reasoning is a major flaw in the majority’s “enlightened” opinion: Why should the existence of a piece of paper control whether alimony payments continue when the recipient of the alimony is in a relationship that has all *125the indicia of a marriage, lacking only the ceremony, the certificate, and a commitment. While the parties may lack a marriage certificate, they have clearly combined resources. Where is the justice that requires the payor to continue to make full alimony payments for support when the necessity for that support is lessened?

¶5If the Court is to reach its conclusions based upon both law and logic, it necessarily follows that the alimony payments should be reduced by the amount contributed by the cohabitor. This Court reversed the circuit court’s order granting Mr. R. relief from further payment of alimony despite Judith R.’s new relationship. Because of this illogical rationale and result, I dissent.

¶6The issue of child custody is the most far reaching of the two issues discussed in this dissent. The majority is clearly wrong in permitting the fourteen-year-old child, Melissa R., to remain in the custody of her mother, Judith R., while she is openly cohabiting with a man and his family. In reversing the circuit court, the majority states: “In making any custody decision, however, the chief and overriding concern must be the best interest of the child.”

¶7Moreover, despite rhetorically claiming a real interest in young children, the majority hides behind this Court’s decision in J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978). In syllabus point 4, the majority stated:

Acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child being raised by a mother with such a defective character. (Emphasis added.)

¶8The majority would be correct in relying on J.B. if this case dealt only with some isolated incidences of sexual misconduct by Judith R. But that is not this case. Judith R. moved into the home of a man not her husband and cared for both his children and her children, cohabiting as if they were man and wife. Wouldn’t reasonable adults, or at least a majority of reasonable adults, believe Judith R.’s conduct has had the “deleterious effect on the child” discussed in J.B. and ignored by the majority opinion? Id.

¶9If the Court is truly interested in the welfare of the child, why not consider cohabitation as evidence going to the fitness of the primary caretaker? What two consenting adults do is their business, but when that conduct affects the lives of children for whom they are role models, then the lifestyles of the primary caretakers must be given careful consideration. If the majority was sincere about the welfare of the child, they would have applied that part of syllabus point 2 of J.B. v. A.B., discussed supra, which refers to the unfitness of a primary caretaker if the actions had a deleterious effect upon the child.

¶10School counselors, church counselors, and teachers who work with young children are constantly attempting to educate the fertile minds of adolescents about the consequences of sexual activity before marriage. What answer does the counselor have when a youth says, “Mother doesn’t have any commitment from the man she is living with, and she isn’t concerned. Why should I?”

¶11Today this State is near the top of the list of a very undesirable statistic — the number of teenage pregnancies. In fact, many public school systems now provide day care for the children of these teenage mothers in order that the mother might finish high school and have an opportunity for a meaningful future for herself and her child. Obviously, something is not working, and the majority apparently wants to contribute to the problem.

¶12I am reminded of the biblical tale of Solomon, where two women each claimed to be the mother of a child. When parentage could not be resolved, Solomon said he would cut the child in half and give each “mother” a part. The true mother, filled with love for her child, preferred to give the child to the other woman rather than see him harmed. If Judith R. really loved *126her child, she would have provided a stable family environment, even if she had to live alone. Her sacrifice would be bolstered by the knowledge that her child would be exposed to proper principles and conduct that would be building blocks for her life.1 When the court told Judith R. to either show the court that she and the man she was cohabiting with intended to commit to each other and provide a sound foundation for Melissa or the child would be given to her father, Judith R., like the loving mother before Solomon, should have ascertained if the man she was living with intended to make a home for his children and her child through marriage. If not, she should have taken her daughter out of that environment to one where she, as a mother, could show her child true commitment.2

¶13Child custody determinations are based almost purely upon court-made standards. It would appear from the majority opinion that our child custody standards are those which are the most expedient and economical at the time and do not consider the long-range welfare of the children it seeks to protect. While I acknowledge the majority’s philosophical acceptance of divorce and its attendant problems, I do not have to either like them or accept them. Yesterday’s standards are said to be out of date and have been replaced with “I am going to do my thing and let someone else worry about the consequences.” In 1789, George Washington, the first President of this nation, stated that “... the foundations of our national policy will be laid on the pure and immutable principles of private morali-ty_” I agree.

¶14For these reasons, I dissent to the majority’s standards for determining child custody.