Harshberger v. Harshberger

• Decision Date: 23 August 2005
• Docket Number: No. 04-197.,04-197.
• Citation: 2005 WY 99,117 P.3d 1244
• Parties: Jeral Dee HARSHBERGER, Appellant (Plaintiff), v. Charles A. HARSHBERGER, Appellee (Defendant).
• Court: Wyoming Supreme Court

117 P.3d 1244

2005 WY 99

Jeral Dee HARSHBERGER, Appellant (Plaintiff), v. Charles A. HARSHBERGER, Appellee (Defendant).

No. 04-197.

Supreme Court of Wyoming.

August 23, 2005.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Carol K. Watson of Phelan-Watson Law Offices, Cheyenne, Wyoming.

Representing Appellee: Greg Knudsen of Knudsen Law Offices, Torrington, Wyoming.

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

HILL, Chief Justice.

[¶ 1] Jeral Dee Harshberger (Mother) appeals a district court order that transferred primary custody of the parties' two minor children to Charles A. Harshberger (Father). We affirm.

ISSUES

[¶ 2] Mother states four issues in her brief:

I. Whether the district court committed an error of law, when it considered evidence from the date of the original divorce decree, to conclude there was a material change of circumstances to change custody, rather than considering evidence from the date of the most recent order modifying visitation, as prescribed by Wyo. Stat. Ann. § 20-2-204(c).

II. Whether the district court abused its discretion, when it concluded in its Decision Letter that "the evidence shows that frequent moving creates an expectation of upheaval for the children, and can negatively affect school work and relationships" without any expert testimony to prove the truth of the court's statement.

III. Whether the district court abused its discretion and/or committed an error of law, when it considered evidence of [Father's] unsubstantiated motions for contempt as a basis of changing custody.

IV. Whether the district court abused its discretion, when it changed custody to [Father], knowing that, at least once, he had been convicted for indecent exposure.

In his brief, Father simply reiterates the issues as presented by Mother.

FACTS

[¶ 3] The parties were divorced in 1999. Mother was granted primary custody of the parties' two minor children. On February 5, 2004, Father filed a petition to modify custody wherein he sought primary custody of the children. The hearing on Father's petition was not recorded. When an appealed order is predicated upon testimony and evidence adduced at an unrecorded hearing our review is constrained:

When this Court does not have a properly authenticated transcript before it, it must accept the trial court's findings of fact upon which it bases any decisions regarding evidentiary issues. Capshaw v. Schieck, 2002 WY 54, ¶ 21, 44 P.3d 47, ¶ 21 (Wyo.2002). The failure to provide a transcript does not necessarily require dismissal of an appeal, but our review is restricted to those allegations of error not requiring inspection of the transcript. Lacking a transcript, or a substitute for the transcript, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996); Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993); and see Wood v. Wood, 865 P.2d 616 (Wyo.1993) (dismissing appeal for lack of record, rather than affirming).

Burt v. Burt, 2002 WY 127, ¶ 7, 53 P.3d 101, ¶ 7 (Wyo.2002).

[¶ 4] Since the lack of a transcript means that we must accept the trial court's findings of fact, we set forth the relevant portions of that court's Decision Letter:

The Court considered the evidence and testimony presented at a hearing on July 23, 2004. The Court had previously heard evidence at hearings on motions for contempt, and at a hearing on a motion for counseling for [the parties' children, L.H. and T.H.] The Court finds that much of [Mother's] testimony lacks credibility. It is inconsistent with other testimony, vague, and often unsupported by evidence that is within [Mother's] control but for unknown reasons [Mother] chose not to present.

The Court finds that circumstances have materially changed since the divorce in the following respects:

1. At the time of the divorce both parties lived in the Goshen County, Wyoming vicinity. Since then [Mother] * * * has changed residences thirteen (13) times. One of those moves occurred while the children were with [Father] for summer visitation, and 2 of the moves involved improved circumstances (from a 2 bedroom apartment to a 3 bedroom apartment to a house). However, the other moves are inexplicable. [Mother] told [Father] she would move to keep him away from the children, and then she moved to Cody, taking them 350 miles from their father. No evidence suggested that [Mother] improved her employment situation by this move, particularly in light of the pay and the work hours she has in Cody. The evidence established that [Mother] is considering another change of residence. On the other hand, [Father] has remained in the parties' family home since the divorce. The evidence shows that frequent moving creates an expectation of upheaval for the children, and can negatively affect school work and relationships.

[Mother] testified that the girls, especially L.H., have excelled academically and socially in Cody. The Court finds this testimony, along with much of her other testimony, lacking credibility and unpersuasive. [Mother] did not introduce any school records. She did not present testimony from any school personnel. She is unaware of a "directed learning" program that [L.H.] is in. [Mother's] opinion about current school performance is entirely inconsistent with [L.H.'s] prior performance.

2. [Mother] has changed employment four (4) times since the divorce. She now works as a [certified nursing assistant], making $900 per month. She works a 12-hour long night shift, requiring that she leave the children at night. She claims that her very elderly grandmother has consistently supervised the girls at night, but her testimony is not persuasive. Certainly, her job requires her absence when the girls require supervision and involvement about homework and activities. [Father] works 7:30 a.m. to 11 a.m. and noon to 5:30 p.m. Monday through Friday, and part of Saturdays, depending on the time of year. He has remarried, and if custody is changed, his wife will arrange to be at home about the time the girls get home from school each day.

3. [Father] established that [Mother] has consistently interfered with his relationship with [L.H. and T.H.] The Court file indicates that [Father] sought the Court's assistance with [Mother's] failure to cooperate in his relationship with the girls three (3) times before, on May 21, 2001, on September 25, 2002, and again on April 2, 2003. The evidence showed that [Mother] has scheduled or permitted the girls to participate in activities which conflict with his visitation. She has called [Father] derogatory names in front of the children, and has told the children that [Father] has a new family and doesn't love them any more. [Mother] also interferes with [Father's] relationship with the girls emotionally. She makes statements to the girls during their visits which are emotionally harmful and place them in a position of having to choose between parents emotionally (ie: "I can't live without you" and "I'm so lonely"). [Mother] fails to recognize the impact of such statements on the girls, and claims to only be "expressing her concern for them." Although the Court's decree requires the parties to provide copies of records and information they obtain about the girls' education to each other, [Mother] has consistently refused to do so. She continued this refusal through the hearing, stating that she didn't have the time to get copies of school records for [Father] and that he could get them for himself. The evidence established that [Father] has attempted to obtain the girls' school records direct from the Cody schools, but inexplicably the Cody schools refused until faced with a subpoena from the Court.

4. Since the divorce decree [T.H.] has displayed signs of extreme social withdrawal. During the 2000-2001 school year [T.H.'s] pre-school recommended that she be professionally evaluated and possibly counseled. [Mother] refused these recommendations. During the past year [Mother] accused [Father's] step son of inappropriately touching [T.H.]. The Wyoming Department of Family [S]ervices investigated those allegations and found them to be unsubstantiated. However, in the course of their investigation DFS observed [T.H.'s] behavior and again recommended professional counseling. [Mother] refused, and [Father] petitioned the Court for an order requiring counseling. The Court ordered counseling for [T.H.] by a counselor selected jointly by the parties. [Mother] claims that she unilaterally selected a counselor who has seen [T.H.]. She failed to present any evidence from that counselor, or any records or evaluations. The counselor has refused to speak with or include [Father]. No information or recommendations were provided to [Father] for use during this summer visitation. This summer, [T.H.] continues to exhibit extreme withdrawal. She does not speak to anyone except her father and sister, does not interact with other children, and won't look at or converse with guests at home. A preponderance of the evidence establishes that [T.H.'s] condition is largely ignored by [Mother] and that [Mother] shuts [Father] out from information about or involvement in any evaluations or counseling.

5. The evidence established that [Mother] emotionally involved the girls in this dispute by telling them that if custody is changed "she will never be able to see the girls again."

These changes in circumstances, taken together, are material and support a change in custody.

The factors in W.S. § 20-2-201 support a change of custody. The evidence establishes that [Father] has a greater ability to "provide adequate care, including arranging for each child's care by others." [Father] has better ability to recognize and understand the children's educational, social and psychological needs. He is less likely to involve the children in an emotional tug of war between their...