Basolo v. Basolo, 94-265

CourtUnited States State Supreme Court of Wyoming
Citation907 P.2d 348
Docket NumberNo. 94-265,94-265
PartiesSteven Carlo BASOLO, Appellant (Defendant), v. Dulcinda Ann BASOLO, Appellee (Plaintiff).
Decision Date30 November 1995

Rhonda Sigrist Woodard of Burke, Woodard & Bishop, P.C., Cheyenne, for Appellant.

William L. Miller of Miller and Fasse, P.C., Riverton, for Appellee.

Cheryl Ranck Schwartz of Ranck & Schwartz, Jackson, Guardian Ad Litem.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR, and LEHMAN, JJ.

TAYLOR, Justice.

A bitter dispute over custody of an only child was exacerbated by geographical separation of the parties' residences. Appellant claims the district court abused its discretion and seeks reversal of orders on visitation and payment of attorney fees. Skillful appellate advocacy, however, cannot gainsay the misbehavior of appellant which virtually compelled the district court's decisions. With the caveat that courts must strive to maintain neutrality, detachment, and the appearance of same, we affirm.

I. ISSUES

Appellant, Steven Basolo (Basolo), posits the following issues:

I. Did the trial court abuse its discretion in severely restricting Mr. Basolo's visitation with his daughter and denying Mr. Basolo and his daughter the ability to maintain a close father/daughter relationship?

II. Did the trial court err in allowing its ruling regarding visitation to be affected by the gender of the non-custodial parent?

III. Was it error for the trial court to permit the guardian ad litem to report to the court in a manner which made her a witness who utilized hearsay and was not subject to cross-examination?

IV. Did the trial court abuse its discretion in ordering Mr. Basolo to pay a substantial portion of his wife's attorneys fees and 75% of the guardian ad litem fees when there was no evidence presented to indicate he had a greater financial ability to pay?

Appellee, Dulcinda Basolo, a/k/a Dulcinda Gose (Gose), joined each of Basolo's issues, restating them as follows:

I. Did the trial court abuse its discretion in its award of visitation to Mr. Basolo?

II. Did the trial court err in allowing its ruling regarding visitation to be affected by the gender of the noncustodial parent?

III. Was it prejudicial for the trial court to permit the guardian ad litem to report to the court in a narrative manner?

IV. Did the trial court abuse its discretion in ordering Mr. Basolo to pay a portion of his wife's attorneys fees and the guardian ad litem fee?

II. FACTS

As a teenager, Basolo spent his summers in Wyoming working on his father's ranch near Gillette, Wyoming. In 1968, on such a trip, he met a "cute blonde," who eventually became his wife and adversary.

Following high school graduation, Gose entered into a lengthy relationship/partnership with a film maker in Los Angeles, California. Meanwhile, Basolo tried to stay in touch, usually having to settle for a friendly telephone chat with Gose's mother. 1 Finally, on October 13, 1989, Basolo and Gose were married and Natalie Duval Basolo (Natalie) was born on September 26, 1991. Even prior to their marriage, both recognized that the relationship was "hit and miss," prone to bitter and sometimes violent disputes.

Natalie's advent did little to cool the parties' conflicts. In August of 1992, Basolo filed for divorce in California. Early in October of 1992, Gose induced Basolo to abandon the divorce because dismissal would "be good for Natalie."

The surcease, if any, was short-lived. In October of 1992, Basolo fled to his parents' home in north California and, in early December, Gose and Natalie left southern California and moved in with Gose's parents outside Lander, Wyoming.

Unwelcome at the home of Gose's parents, Basolo later made two strife-torn visits to Lander, entertaining Gose and Natalie in his motel room. During Christmas of 1992, a night-long battle during which the parties literally threw a Bible at each other climaxed when a barefooted Gose, otherwise in a state of dishabille, chased Basolo out into the snow-covered morning, necessitating police intervention.

In April of 1993, Gose informed Basolo that she had filed for divorce in Wyoming and asked him to accept service. Although he knew that Natalie was still nursing, Basolo chose to take the child and leave the jurisdiction rather than accept service of Gose's complaint for divorce. 2

After leaving Wyoming with Natalie, Basolo's whereabouts became something of an enduring mystery. He says he remained with his parents in California except for two weeks with his sister and friends in Santa Cruz, California. However, on April 26, 1993, Basolo's father wrote Gose's counsel to disclaim his son's presence.

Wherever he was, Basolo slowed down long enough to file another complaint for divorce on April 14, 1993, listing his father's address in California as his place of residence. During that time, Basolo left numerous telephone answering machine messages for Gose, berating her family with vile accusations.

Gose tracked her husband to California where she hired a private detective and an attorney to help her find her daughter. Within a month, a California court ordered custody restored to Gose and declined jurisdiction in favor of the district court for Fremont County, Wyoming, finding:

That on or about April 12, 1993, the Petitioner/Father to this action, upon learning that a dissolution action was pending in the State of Wyoming, without the consent of Respondent/Mother, wrongfully removed, by abduction, the minor child of this marriage from the State of Wyoming, and then concealed said child from the Respondent/Mother, in direct violation of * * * provisions of the Uniform Child Custody Jurisdiction Act * * *.

Mother and child were reunited on May 17, 1993 and returned to Wyoming where they have since remained.

Following Basolo's peremptory disqualification of the original district court judge, the district court appointed a guardian ad litem for Natalie. The district court ordered limited, supervised visitation, and enjoined both parties from "[i]ntentionally communicating with the other party * * * in a coarse or offensive manner, with intent to annoy or alarm the other party."

The record does not clarify why trial was delayed until June of 1994. Basolo, however, substituted counsel at the end of August, 1993 and jettisoned his first psychologist, delaying completion of his psychological evaluation until April of 1994. In the meantime, Basolo found means to circumvent the restraining order by enlisting family members.

In February of 1994, although Natalie was two and one-half years old and incapable of reading, a card addressed to her from Basolo's parents included the following message:

You look so sad and don't look very happy. Maybe I should come back there and see if you are O.K. since your Mom or Grandparents (Gose) never let us know how you are. I think that is a very immature, selfish and greedy position they are taking, but then they will have to live with themselves. Someday, you will understand * * *.

Two weeks later, Basolo's sister sent a letter directly to Gose, which included the following passage:

I suppose that when one is the concubine to a media mogul like Michael with whom you lived with for so long, that one looses touch with the real world, and I sincerely hope that you don't impress upon Natalie to live the same lifestyle that you have chosen ... using men for money and whatever else.

Be a woman, for the first time in your life and rise above your stupidity and hatred ... if for nothing else ... for the benefit of Natalie Basolo.

On March 21, 1994, Basolo sent gifts to Natalie with a note which included the following language:

In the last 10 months your cruel mother has used you as a weapon to hurt me. * * *

* * * * * *

Someday when you get old enough to learn the truth you will realize how cruel your mother was to you and your daddy as it is very well documented.

Basolo explained the allusion to documentation as indicative of his plan to retain copies of all the foregoing for Natalie's review when she could read.

Given their dysfunctional relationship, it is interesting that each party was able to locate a psychologist willing to vouch for the relative mental stability and parenting skills of their client. Both psychologists, however, endorsed the proposition that "the final determinant is the history of the person's behavior."

Citing the most influential factors, the district court awarded primary custody of Natalie to Gose, affording Basolo an initially restrictive but progressively more expansive visitation schedule. The district court also ordered that Basolo's "file" of materials derogatory to Gose be destroyed, that Basolo pay $411.00 per month as child support, reimburse Gose's trial attorney fees of $7,000.00, and pay seventy-five percent of the guardian ad litem's fee.

After hearing his motion to amend (or, in the alternative, for a new trial), the district court reduced Basolo's child support obligation to $125.06 per month and his responsibility for Gose's trial attorney fees to $4,000.00.

III. SCOPE AND STANDARD OF REVIEW

Visitation awards will not be disturbed on appeal absent a clear abuse of discretion. Goff v. Goff, 844 P.2d 1087, 1092 (Wyo.1993). Similarly, child support, apportionment of counsel fees, and allocation of costs are all committed to the sound discretion of the district court. Dowdy v. Dowdy, 864 P.2d 439, 441 (Wyo.1993); Marquiss v. Marquiss, 837 P.2d 25, 46 (Wyo.1992).

" 'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria[.]' " Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). Abuse of discretion is not found unless the district court acts in a manner which exceeds the bounds of reason under the circumstances of the case or commits an error of law. Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993).

Assessment of the circumstances of this case, in the...

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