Michael D.c., Plaintiff Below, Appellee v. Wanda L.c., Defendant Below, Appellant

Summary

The West Virginia Supreme Court affirmed the parts of a Mingo County final divorce order granting Michael D.C. a divorce on the ground of adultery and awarding him custody of the parties' thirteen-year-old child, reasoning that the circumstantial evidence—daily hour-long telephone contact, overheard discussions of sexual encounters and planned rendezvous, and an unexplained nude photograph of the wife in the paramour's vehicle—was strong and that witness-credibility determinations belong to the family law master rather than the reviewing court. The court held that the statutory defenses to adultery are affirmative defenses requiring clear and convincing proof by the party asserting them, and it adopted five factors for evaluating circumstantial proof of adultery. It reversed the equitable distribution of marital property because neither the circuit court's final order nor the adopted recommended order stated the amount of debt Wanda L.C. fraudulently dissipated, remanding solely for adequate findings of fact. A fourth assignment alleging due process error from 'tainted' testimony about an alleged poisoning was rejected as meritless.