Eickbush v. Eickbush

• Decision Date: 09 November 2007
• Docket Number: No. S-07-0030.,S-07-0030.
• Citation: 171 P.3d 509,2007 WY 179
• Parties: Justin Dean EICKBUSH, Appellant (Plaintiff), v. Lisa Ann EICKBUSH, Appellee (Defendant).
• Court: Wyoming Supreme Court

171 P.3d 509

2007 WY 179

Justin Dean EICKBUSH, Appellant (Plaintiff), v. Lisa Ann EICKBUSH, Appellee (Defendant).

No. S-07-0030.

Supreme Court of Wyoming.

November 9, 2007.

Representing Appellant: DaNece Day of Lubnau & Bailey, PC, Gillette, Wyoming.

Representing Appellee: No appearance.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] This appeal arises from the divorce proceeding of Appellant, Justin Dean Eickbush ("Father"), and Appellee, Lisa Ann Eickbush ("Mother"). In a pretrial conference, Father's attorney represented to the district court that the parties had reached an agreement on custody and that the parties would exercise shared custody, alternating weekly. When the parties later were unable to agree on the terms of custody, Mother filed a motion to enforce the settlement agreement. At a hearing, Mother insisted that their agreement should be enforced; however, Father contended that shared custody was not in the children's best interests and he should be awarded primary custody. The court enforced the agreement and ordered shared custody. Father appeals from that order. For reasons set forth below, we will reverse and remand for a custody hearing.

ISSUE

[¶ 2] The dispositive issue here is whether the district court abused its discretion in granting Mother's motion to enforce the settlement agreement and ordering shared custody.

FACTS

[¶ 3] Father filed a complaint for divorce on October 27, 2003. After the divorce was initiated, Mother and Father decided to attempt to repair the marriage and determined that the best way to do so was to finalize the divorce and remarry, hoping for a fresh start. On October 7, 2004, they filed a stipulated motion to bifurcate the proceedings requesting the district court enter a divorce decree, but allowing them six months to work out their marital issues and remarry. On October 13, 2004, a decree of divorce was entered without addressing issues of custody, visitation, property or debt, and allowing the parties six months to remarry.

[¶ 4] The attempt at repair and reunification was unsuccessful, and on January 10, 2006, Father filed a motion for temporary custody, support, and temporary possession of the residence. A trial was set for November 20, 2006. A scheduling conference was held on March 28, 2006. We are not provided with a transcript of that proceeding; however, the record indicates that Father's attorney represented to the district court that the parties had agreed to shared custody, with the parenting time split equally. Following the scheduling conference, a series of communications occurred aimed at formalizing that agreement, and the parties exchanged proposed orders reflecting their understanding of the agreement.

[¶ 5] The parties were unable to reach an agreement, and on July 13, 2006, Father requested that the setting be amended to allow eight hours for trial (instead of the four previously agreed upon), stating that he "did not believe the issue of custody is agreed upon as was earlier reported to the Court at a scheduling conference give (sic) the course of dealing between the parties since that time." The trial was rescheduled for one full day. On October 11, 2006, Mother filed a motion to enforce the agreement, asserting that the parties had agreed to joint legal custody with physical custody alternating weekly. In his response to Mother's motion, Father asserted that he should be awarded primary physical custody and contended that the family therapist would testify that the week-on, week-off custodial arrangement was not in the children's best interests.

[¶ 6] On November 20, 2006, the district court held a hearing to address Mother's motion to enforce, as well as all other outstanding issues regarding the division of the marital estate. Although the family therapist had been issued a subpoena to testify at the hearing, only Mother and Father provided testimony regarding their respective positions. At the close of the hearing, the district court took the matter under advisement.

[¶ 7] On December 6, 2006, the district court issued an order awarding joint legal custody and shared physical custody, alternating weekly. Although the order roughly defined the week-on, week-off custody schedule, it contained no specific findings regarding the disputed question of whether this arrangement was in the children's best interests.

[¶ 8] Father filed a timely notice of appeal.

STANDARD OF REVIEW

[¶ 9] In this appeal, Father challenges the district court's shared custody order. The standard of review utilized when reviewing a district court's custody determination is well established:

Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. Scherer v. Scherer, 931 P.2d 251, 253-54 (Wyo.1997); Triggs v. Triggs, 920 P.2d 653, 657 (Wyo. 1996); Basolo v. Basolo, 907 P.2d 348, 352 (Wyo.1995). It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. Scherer, 931 P.2d at 254; Rowan v. Rowan, 786 P.2d 886, 890 (Wyo.1990); see also Gurney v. Gurney, 899 P.2d 52, 55 (Wyo.1995); and Fink v. Fink, 685 P.2d 34, 36 (Wyo. 1984). The determination of the best interests of the child is a question for the trier of fact. "We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle." Fink, 685 P.2d at 36.

A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Pinther v. Pinther, 888 P.2d 1250, 1252 (Wyo.1995) (quoting Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993)). Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Triggs, 920 P.2d at 657; Cranston v. Cranston, 879 P.2d 345, 351 (Wyo.1994). Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Jones v. Jones, 858 P.2d 289, 291 (Wyo.1993). Similarly, an abuse of discretion is present "`when a material factor deserving significant weight is ignored.'" Triggs, 920 P.2d at 657 (quoting Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo.1993)).

Pahl v. Pahl, 2004 WY 40, ¶ 6, 87 P.3d 1250, 1252 (Wyo.2004) (quoting Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998)).

DISCUSSION

[¶ 10] Even when parties agree on the issue of custody, "[i]t is well settled that the district court is not bound to accept a stipulation of the parties and that the court's major consideration in determining custody of minor children is the welfare of those children." Forbes v. Forbes, 672 P.2d, 428, 429 (Wyo.1983); see also Fink v. Fink, 685 P.2d 34, 36 (Wyo.1984). In fact, "[c]ourts have a duty to disregard, if necessary, agreements entered into by parents and to make provision for the proper support and care of minor children according to their best interests." Grosz v. Grosz, 506 P.2d 46, 48 (Wyo. 1973). This obligation arises because although the settlement agreement significantly impacts the children, they are not parties to the contract nor are they typically represented in the negotiation thereof. Id. Finally, the district court must consider the interest of the children at the time of the hearing, not at the time the parties separated or some other time prior to the hearing. Morris v. Jackson, 66 Wyo. 369, 212 P.2d 78, 82 (1949).

[¶ 11] We have repeatedly said that divided or shared custody is not favored by this Court absent good reason therefore. Martin v. Martin, 798 P.2d 321, 322 (Wyo. 1990); Feaster v. Feaster, 721 P.2d 1095, 1098 (Wyo.1986); Fink, 685 P.2d at 36 n. 1; Forbes, 672 P.2d at 430; Ayling v. Ayling, 661 P.2d 1054, 1055 n. 3 (Wyo.1983).

There are several reasons for our reluctance to embrace the concept, but first and foremost is the recognition that stability in a child's environment is of utmost importance to the child's well-being, and divided custody places the stability of a child's environment at risk. Whether termed "divided," "shared," or "joint" physical custody, "a measure of instability is inherent" in the arrangement. Gurney [v. Gurney], 899 P.2d [52,] 55 [(Wyo.1995)]. We do not dispute that there may be cases where joint or shared physical custody may approximate the former family relationships more closely than other custodial arrangements, or for other good reason may be in the best interests of the children. However, divided physical custody may not be indiscriminately substituted for an award of sole custody to one parent in order to appease one party.

Reavis v. Reavis, 955 P.2d 428, 432 (Wyo. 1998).

[¶ 12] In the present case, we must evaluate whether, based on the record before us, the district court abused its discretion in ordering shared custody. Essentially, we must determine whether the award of shared custody is contrary to the evidence, or whether the district court's "best interest" determination was factually supported. Unfortunately, the district court's order contained no specific findings concerning the factors it considered in deciding to award shared custody. Therefore, the hearing transcript provides the only record evidence of the district court's reasons for awarding shared custody. After the parties had presented their respective arguments on custody, the district court made the following statements:

From the evidence that has been adduced, the Court concludes there was an agreement, and the Court is going to enforce that agreement, and the agreement was for joint custody with physical custody week on and week off, and from a legal standpoint that it was joint custody.

Now, the question becomes whether or not that is in the best interests of the children, because ...