Fanning v. Fanning

• Decision Date: 10 April 1986
• Docket Number: No. 85-242,85-242
• Parties: Ronald Owen FANNING, Appellant (Plaintiff), v. Sherry Lynn FANNING, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 346

717 P.2d 346

Ronald Owen FANNING, Appellant (Plaintiff), v. Sherry Lynn FANNING, Appellee (Defendant).

No. 85-242.

Supreme Court of Wyoming.

April 10, 1986.

Richard H. Honaker, Rock Springs, for appellant.

Jere Ryckman, Green River, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

Ronald Fanning, the father of two boys ages two and four, comes to this court by appeal from a custody order granting custody to the mother, Sherry Fanning, by hearing subsequent to the divorce decree.

We reverse and remand for entry of an order to grant present custody to the father.

Issues stated by the litigants are:

"1. Did the trial court err as a matter of law by failing to consider the best interests of the children in a child custody dispute, and by considering instead only the best interests of the mother?

"2. Did the trial court erroneously apply the Maternal Preference Rule, which was abrogated by this Court in Fink v. Fink, 685 P.2d 34 (Wyo.1984), and award custody solely on the basis of gender in violation of W.S. § 20-2-113(a)?"

The trial court, by opinion letter written prior to the custody order from which this appeal was taken, discussed his decision inter alia as follows:

"I have ruled as I have because all evidence indicates that Sherry Fanning has tried to improve herself and her parenting skills and to a considerable extent has done so, and, having done so, is entitled to a chance at raising her own children. However, she must realize that she is not the ideal mother, and must continue to improve. On the other hand, I doubt if there is such a thing as a perfect mother. I also adhere to the theory long espoused by the Supreme Court and that is that children of tender years should be with their mother. In nature, virtually all born animals are raised by their mothers, and human beings are merely a higher form of animal. I realize these children will not have many of the luxuries they now have, but as I have said before that no child has the right to be raised in the lap of luxury.

* * *

* * *

"This is not a temporary custody order and will not be reviewed except for compelling reasons brought to the attention of the Court."

As demonstrative of the status of the case, the order which granted custody contained the following provisions:

"A. That Defendant continue to attend weekly counseling and weekly STEP parenting classes at Southwest Counseling Service, until such time as Southwest Counseling determines such activity no longer necessary.

"B. That Sweetwater County DPASS continue to supervise and monitor the Defendant's home as often as it deems necessary, without notifying Defendant in advance of such visits if it so desires, for so long as it deems necessary.

"C. That Defendant will comport herself in a more lady like fashion in the future; not drink to excess; not drive a motor vehicle when drinking; and behave with gentility in the presence of said minor children."

The resolution determined by the trial court was demonstrated by an unwillingness to delay a change of custody until the disposition of this appeal, and a succeeding order was entered on October 11, 1985, on a show-cause proceeding requiring immediate delivery of the children to the mother.

The Wyoming statute which controls custody decisions as incident to a divorce is § 20-2-113; W.S.1977, 1985 Cum.Supp. The basic Wyoming statute was first enacted as Ch. 40, § 14, S.L. of Wyoming 1882:

"The court, in granting a divorce, and also upon pronouncing a decree of nullity of a marriage, may make such disposition of, and provision for, the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; and the court may from time to time afterward on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of such children, as the circumstances of the parents and the benefit of the children shall require."

The law continued unchanged, see § 20-61, W.S.1957, until the domestic relations statute recodification by Ch. 152, S.L. of Wyoming 1977, which is now the present law, § 20-2-113, W.S.1977, 1985 Cum.Supp.

The change from the 1882 law, as found in a 1957 reenactment, involved two clearly evident and substantial changes. The phrase "most expedient under all of the circumstances, and most for the comfort and future well-being of such children" was changed, and, as now found, is, "most expedient and beneficial for the well-being of the children."

Additionally, a further sentence was added to address a precise question which has developed in earlier Wyoming case law about a maternal preference:

"The court shall consider the relative competency of both parents and no award of custody shall be made solely on the basis of gender of the parent."

Both changes were derived from an Interim Joint Judiciary Committee review of the domestic relations statutes, and were included as Senate File 76, at the 1977 session of the Wyoming legislature. The additional sentence earlier quoted was included by committee amendment from the House Judiciary Committee, Ross Copenhaver, Chairman, after Senate File 76 had passed the Senate, Senate Journal 1977, Senate File 76, p. 112.

Two clear determinations can be made from the language change by review of the changes in accord with the appropriate statutory rule that the legislature did not intend to do a useless thing. This has been the determined law since before statehood:

" * * * It is not to be presumed that congress meant to be engaged in the idle work of phrase making. It is not to be presumed that a legislative body would enact a statute without other purpose than to declare what is already indisputably and confessedly the law." United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287, 288, 22 P. 92, 94 (1889).

See also State v. Sinica, 220 Neb. 792, 372 N.W.2d 445 (1985).

(1) Any remaining semblance of a maternal-preference rule was expressly eliminated from Wyoming law. Fink v. Fink, Wyo., 685 P.2d 34 (1984).

(2) If the best interest of the child had not been clearly denominated as a test for custody in case construction of the prior statute, the phraseology was clearly changed by this amendment to leave no doubt of legislative intent. ¹ See, however Forbes v. Forbes, Wyo., 672 P.2d 428 (1983), and Ayling v. Ayling, Wyo., 661 P.2d 1054 (1983).

In any event, the legislature in 1977 firmly spoke on the two issues of the best-interest test for child custody as differentiated from parental rights, and equality in evaluation of both parents without gender determination. By this decision, we recognize these legislatively restated standards, and reemphasize what this court only recently said in the opinion by Chief Justice Thomas in Fink v. Fink, supra, 685 P.2d at 37: ²

" * * * The status of such a preference, particularly if it is invoked as a principle of law, is increasingly doubtful. Annotation 70 A.L.R.3d 262 (1976), and the cases cited therein. Our legislature has articulated a contrary policy in § 20-2-113, W.S.1977, in which it is stated in part:

" ' * * * The court shall consider the relative competency of both parents and no award of custody shall be made solely on the basis of gender of the parent. * * ' "

This court well recognizes its frequently enunciated rule and well-established principle that it will not interfere with the decision of the district court in child-custody questions unless there is a procedural error, or unless there is shown to be a clear abuse of discretion, and, further, that a court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances as is said to mean an error of law committed by the court under the circumstances. Ayling v. Ayling, supra; Bereman v. Bereman, Wyo., 645 P.2d 1155 (1982); Martinez v. State, Wyo., 611 P.2d 831 (1980).

Our attention is then directed to the facts of this action now resulting in a custody controversy between the father and mother.

Following marriage in 1978, two children were born: Jason, born November 13, 1979, and Andrew, born February 27, 1981. Marital separation occurred in December of 1983, and the divorce action was instituted in January of 1984, when the father, by verified divorce complaint, motion for custody order and affidavit, also asked for temporary custody of the two children.

The father at that time was generally engaged in oil field sales work, and had been away from home a considerable amount of time during the marriage, it being obvious from the documentation available that this was not a marriage mandated in heaven.

The mother, as a teenager, was charged with incorrigibility and truancy, was sent to the Girls School in Sheridan, and did not return to her parents' home upon release. She did not finish high school, and, although planning to get her G.E.D., had not done so. Her work history is minimal, with some experience as a maid, but her basic standard of employment is as a night-time barmaid, which employment existed at the time of the last custody hearing.

The oldest son, Jason, is a healthy, rambunctious child, with no physical ailments or disability except a scar which, by general construction of the evidence, was derived from an intentional burn with a cigarette by his mother. The younger son, Andrew, had serious medical problems at birth, has a 30 per cent hearing loss, with tubes required for hearing maintenance. He continues to require substantial medical care, and also has a forearm scar consistent with his stated cause that it was an intentional cigarette burn from his mother.

The father's mother and stepfather, Norma and Jack Richardson, moved to intervene for custody in the divorce proceeding, and the motion to intervene was denied by the trial court on the basis that grandparents have no standing under § 20-2-113, to intervene in a divorce...