Feaster v. Feaster

• Decision Date: 09 July 1986
• Docket Number: No. 85-261,85-261
• Citation: 721 P.2d 1095
• Parties: William James FEASTER, Appellant (Plaintiff), v. Susan Rene FEASTER, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1095

721 P.2d 1095

William James FEASTER, Appellant (Plaintiff), v. Susan Rene FEASTER, Appellee (Defendant).

No. 85-261.

Supreme Court of Wyoming.

July 9, 1986.

Julie Nye Tiedeken, of Southeast Wyoming Law Offices of Rodger McDaniel, Cheyenne, for appellant (plaintiff).

Mark J. Murphy, of Shoumaker & Murphy, Sheridan, submitted on brief on behalf of appellee (defendant).

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

CARDINE, Justice.

This case involved an action to modify the child custody provisions of a divorce decree. In their original settlement, which the court incorporated into the decree, appellant William Feaster and appellee Susan Feaster agreed that Mr. Feaster should have custody of their daughter, Elissa. Mrs. Feaster received visitation rights. A year and a half later, Mrs. Feaster, who had remarried and changed her name to Susan Ferguson, filed a petition for modification in which she requested sole custody of Elissa. We will refer to appellee as Mrs. Ferguson in the remainder of this opinion.

After a hearing, the court determined that there was a change of circumstances; but, instead of granting Mrs. Ferguson's petition, the court ordered joint custody. On appeal Mr. Feaster claims that the court abused its discretion when it found a substantial change of circumstances and when it ordered joint custody without the consent of both parties.

CHANGE OF CIRCUMSTANCES

A district court's modification decision will be reversed only if the court abused its discretion. Lewis v. Lewis, Wyo., 716 P.2d 347 (1986).

" 'A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. * * * '

"An abuse of discretion is that which shocks the conscience of the court and appears so unfair and inequitable that a reasonable person could not abide it. The decision of the trial judge will not be reversed unless there is a firm conviction that a clear error of judgment was committed." (Citations omitted.) Waldrop v. Weaver, Wyo., 702 P.2d 1291, 1293 (1985) (quoting Martinez v. State, Wyo., 611 P.2d 831, 838 (1980)).

Mr. Feaster alleges that the "trial court could not reasonably conclude that there had been a material change of circumstances that would justify taking Elissa from [his] custody." He claims that there was no testimony "that Elissa's living situation had deteriorated or become worse since the time of the divorce" or that her "well-being and emotional stability had * * * substantially changed."

To accept Mr. Feaster's argument and hold that the trial court abused its discretion, we must review all of the proceedings at which the court heard evidence of changed circumstances. Without a review of all relevant proceedings, we would have to assume that the district court heard evidence from which it could find a change. See Sharp v. Sharp, Wyo., 671 P.2d 317, 318 (1983) (and cases cited therein).

The responsibility for presenting a sufficient record fell on Mr. Feaster. " 'It is properly an appellant's burden to bring to us a complete record on which to base a decision.' " Matter of Estate of Manning, Wyo., 646 P.2d 175, 176 (1982) (quoting Scherling v. Kilgore, Wyo., 599 P.2d 1352, 1357 (1979)); see also Salt River Enterprises, Inc. v. Heiner, Wyo., 663 P.2d 518, 520 (1983).

"If an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence * * * he shall include in the record a transcript of all evidence relevant to such finding or conclusion." Rule 4.02, W.R.A.P. (Cum.Supp.1985).

The district court held two modification hearings--one on July 3 and another on September 16, 1985. Both hearings centered on the change-of-circumstances issue, and it is clear that some evidence on that issue was presented at each hearing. ¹ Neither party requested a court reporter for the July 3 hearing, and consequently there is no transcript of testimony.

Mr. Feaster attempted to correct the deficiency by submitting a statement of the proceedings to the district court as permitted by Rule 4.03, W.R.A.P., which states:

"If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten (10) days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal." (Emphasis added.)

Mrs. Ferguson objected to appellant's proposed statement on the grounds that it was "inaccurate and incomplete." The court refused approval, and in its "Statement of Conclusions and Proceedings" stated:

"The Court feels constrained to [neither] accept [nor] reject either the Plaintiff's or Defendant's Statement of Evidence and Proceedings inasmuch as the Court has very limited independent recollection of the testimony of the various witnesses inasmuch as several similar cases have been heard by the Court both before and since the time of this trial and it is hard for the Court to sort out all of those cases and recall specific testimony in any one after the fact.

* * *

* * *

"The Court does recall its conclusion from all of the testimony that the Defendant at the time of the divorce felt that due to her circumstances that her daughter would be better cared for and supported by the Plaintiff. It was the Court's conclusion from the testimony that at the time of the divorce the Plaintiff's situation was more stable due to his life style and ability to generate an income. The Court's recollection of the testimony is that all of that changed. At the present time the Defendant's circumstances and life style are much more stable and Plaintiff's situation is now unstable and income very limited. The Court concluded based upon the testimony that it heard that there had been a material change of circumstances since the time of the divorce and that Elissa's best interests would be served by placing her with her mother at this time."

Rule 4.03, W.R.A.P., clearly implies that a statement becomes part of the record only to the extent that it is settled and approved by the court. If a court states that it cannot recall the true facts from a proceeding, then the statement has not, and cannot, be approved or settled. In Maynard v. Maynard, Wyo., 585 P.2d 1201, 1202 (1978), we stated:

"Because the trial court did not approve or settle this portion of the statement as it refers to the evidence question, it is therefore no part of the record and cannot be accepted as such. It was not error for the judge to fail to settle the record insofar as he did not remember the matters suggested, and the judge's statement that he has no such recollection is conclusive." (Citations omitted.)

Mr. Feaster's attempt to settle the record was unsuccessful, and we have no way of knowing what evidence was actually presented to the district court at the July 3 hearing. Without either a transcript or an approved statement of the hearing we cannot assume that the court's findings were unsupported. We cannot find an abuse of discretion.

JOINT CUSTODY

In its modification order the district court decreed "that the child shall be placed in the joint custody of both parties." (Emphasis added.) The court then set forth a very detailed plan by which the actual physical custody of Elissa would be divided. After an eleven-month period, during which the parties would alternate custody three times, Elissa would be placed in Mrs. Ferguson's custody during the school year and in Mr. Feaster's custody during the summer.

Mr. Feaster contends that the district court abused its discretion when it granted joint custody without the approval of the parties. According to Mr. Feaster, joint custody depends on the cooperation of the parties and should not be imposed unless the parties demonstrate their cooperative spirit by agreeing to such a plan. He presumes that the court used the phrase "joint custody" to mean an arrangement in which the parties make shared decisions on matters affecting the child's welfare.

We are not sure whether the court order provided for joint custody as Mr. Feaster defines that term or instead provided split custody which is relatively common when the parties will reside in different towns, as here. In either case, we cannot say that the district court necessarily abused its discretion. Although divided child custody is disfavored, there are some circumstances in which a district court can order such custody in its discretion. And, of all the joint custody arrangements, the one ordered in this case is the most likely to withstand appellate review. In Ayling v. Ayling, Wyo., 661 P.2d 1054, 1055 n. 3 (1983), we stated:

"As a general rule, divided child custody arrangements are not favored absent a good reason therefor, but they are often upheld on appeal when the division places the child with one parent during the school year and with the other parent during summer vacations. See Annotation: 'Split,' 'divided' or 'alternate' custody of children, 92 A.L.R.2d 695 (1963)."

We do not know what evidence was before the district court at the July 3 hearing; so we, therefore, cannot say that there was an abuse of discretion.

Affirmed.

URBIGKIT, Justice, dissenting.

Recognizing the validity of the court's concern about the lack of a proper record, it is with reluctance that the facts (as available) and the pleading status of this custody controversy must be additionally addressed.

More to be emphasized than anything else to be discussed, is...