Ayling v. Ayling

• Court: United States State Supreme Court of Wyoming
• Citation: 661 P.2d 1054
• Docket Number: No. 5808,5808
• Parties: Larry A. AYLING, Appellant (Defendant), v. Patricia C. AYLING, Appellee (Plaintiff).
• Decision Date: 22 April 1983

Page 1054

661 P.2d 1054 Larry A. AYLING, Appellant (Defendant),
v.
Patricia C. AYLING, Appellee (Plaintiff). No. 5808. Supreme Court of Wyoming. April 22, 1983.

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Cary R. Alburn III, Laramie, signed the brief and appeared in oral argument on behalf of appellant.

Calvin Rerucha signed the brief, and Kennard Nelson, of Rerucha & Nelson, Laramie, appeared in oral argument on behalf of appellee.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

ROONEY, Chief Justice.

Appellant-defendant appeals from an order of the district court which modified an original decree between the parties with respect to child custody provisions. The original decree ¹ placed custody and control of the two children of the parties (a boy born in June 1971 and a girl born in May 1973) in each party for a period of six months each year. The modification order ² placed such custody and control in appellee for nine months each year--during the time the children are in school, and in appellant for three months each year--during the school summer vacation period. ³ The court found that each party was a fit and proper person to have custody of the children. Appellant contends that the issuance of the modification order was in error inasmuch as there was no showing of a material and substantial change in the circumstances of the parties since the time of the original decree, i.e. he contends that there was insufficient evidence of such change in circumstances.

We affirm.

"(a) * * * On the petition of either of the parents, the court may revise the decree concerning the care, custody and maintenance of the children as the circumstances of the parents and the benefit of the children requires." Section 20-2-113, W.S.1977.

However, because of the res judicata effect generally afforded divorce decrees, Mentock

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v. Mentock, Wyo., 638 P.2d 156, 158 (1981); Heyl v. Heyl, Wyo., 518 P.2d 28, 30 (1974), the party seeking to modify the child custody provisions of a divorce decree must show that there has been a substantial change in circumstances since the entry of the original decree warranting a modification of the child custody provisions. Leitner v. Lonabaugh, Wyo., 402 P.2d 713, 719 (1965); Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 1097, 43 A.L.R.2d 351 (1953). In ruling on the modification of the child custody provisions, the district court must strive to achieve a reasonable balance between the rights and affections of the parents, while giving paramount consideration to the welfare and needs of the children. Bereman v. Bereman, Wyo., 645 P.2d 1155, 1160 (1982); Mentock, supra; Leitner, supra; Henson v. Henson, Wyo., 384 P.2d 721, 723 (1963); Laughton, supra.

The party moving to modify the child custody provisions of a divorce decree has the burden of showing that a change in circumstances has occurred, that the change warrants modification of the decree, and that the modification will be in the best interests of the children. Tanner v. Tanner, Wyo., 482 P.2d 443, 444 (1971); Douglas v. Sheffner, 79 Wyo. 172, 331 P.2d 840, 843 (1958);...