Forbes v. Forbes

• Decision Date: 29 November 1983
• Docket Number: No. 83-103,83-103
• Citation: 672 P.2d 428
• Parties: Cherryl H. FORBES, Appellant (Plaintiff), v. Waldo E. FORBES, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 428

672 P.2d 428

Cherryl H. FORBES, Appellant (Plaintiff), v. Waldo E. FORBES, Appellee (Defendant).

No. 83-103.

Supreme Court of Wyoming.

Nov. 29, 1983.

Michael K. Shoumaker of Shoumaker & Murphy, Sheridan, for appellant.

Lawrence A. Yonkee of Redle, Yonkee & Arney, Sheridan, for appellee.

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

BROWN, Justice.

Appellant, wife, appeals from a divorce decree wherein appellee, husband, was granted the care, custody and control of the parties' two minor children contrary to a stipulation entered into by the parties. We will affirm.

The parties entered into a stipulation providing that the children would reside with each parent for approximately one-half of the year. The children were to live with their mother from Thursday evening through Monday morning and with their father from Monday evening through Thursday morning of each week. Appellant, before the divorce was finalized, moved the court to be relieved from the terms of the stipulation so that she would have primary custody. Appellant's reasons were that: She was studying to become a nurse and would probably have to leave Sheridan, Wyoming, to seek employment; she believed that a new court proceeding could be brought at any time to change the custody and was unaware of the effect of the court decree or the difficulty and presumption involved in changing custody; and since the stipulation had been in effect, she had become aware that the children were being harmed by the lack of stability and "living out of a suitcase."

The divorce action and motion to set aside the stipulation were heard by the district court. Appellee asked that the stipulation be approved or in the alternative that primary custody be awarded to him. The court decided, after hearing the testimony of the parties, that primary custody should be awarded to the appellee father; appellant was granted visitation rights. Appellant appeals from this decision.

Appellant's statement of the issue is whether the district court judge abused his discretion by awarding custody to the father based on the misconduct of the wife. We find that there was no abuse of discretion.

The standard of review in child custody cases is that the decision of the trial court will not be disturbed unless there was an abuse of discretion.

" '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 has been said to mean an error of law committed by the court under the circumstances. [Citations.]' " Lawrence v. Lawrence, Wyo., 628 P.2d 542, 546 (1981).

We have a further obligation to assume that the evidence of the prevailing party in the trial court is true. Lawrence v. Lawrence, supra.

It 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. Grosz v. Grosz, Wyo., 506 P.2d 46 (1973). Determining the best interests of a child in awarding custody is a question of fact for the trier of fact. Lawrence v. Lawrence, supra.

At the close of appellant's testimony, after direct and cross-examination, the district judge stated that he had heard enough evidence to make a determination on the custody question. Appellant contends that this statement signals...