Hertzler v. Hertzler, 94-262

• Decision Date: 18 December 1995
• Docket Number: No. 94-262,94-262
• Parties: Pamela M. HERTZLER, Appellant (Plaintiff), v. Dean B. HERTZLER, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 946

908 P.2d 946

Pamela M. HERTZLER, Appellant (Plaintiff), v. Dean B. HERTZLER, Appellee (Defendant).

No. 94-262.

Supreme Court of Wyoming.

Dec. 18, 1995.

Rehearing Denied Jan. 10, 1996.

Susan Laser-Bair of Holland & Hart, Cheyenne, Wyoming; and Susan J. Becker, Cleveland, Ohio, for appellant.

James A. Eddington of Jones & Eddington Law Offices, Torrington, for appellee.

Daniel G. Blythe of Rogers, Blythe & Lewis, Cheyenne; Carolyn F. Corwin and Donald R. McMinn of Covington & Burling, Washington, D.C.; and James L. McHugh, Jr., General Counsel, and Dort S. Bigg, Director, Legal Affairs, American Psychological Association, Washington, D.C., for Amici Curiae American Psychological Association and Wyoming Psychological Association.

Marvin J. Johnson of Edwards & Johnson, Cheyenne; Beatrice Dohrn, Legal Director, Lambda Legal Defense and Education Fund, New York City; and David J. Cynamon, Elizabeth A. O'Brien, and Teresa L. Diaz of Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for Amici Curiae Lambda Legal Defense and Education Fund, The National Center for Lesbian Rights, The American

Civil Liberties Union, The Wyoming Chapter of the American Civil Liberties Union, and United Gays and Lesbians of Wyoming.

Before GOLDEN, C.J., THOMAS, MACY, and TAYLOR, JJ., and GUTHRIE, District Judge.

TAYLOR, Justice.

The parties in this appeal ask us to resolve a child custody dispute arising from completely divergent lifestyles of the mother and father. The district court granted the father's petition to modify the visitation schedule and limited the mother's visitation.

We affirm.

I. ISSUES

Appellant, Pamela M. Hertzler (Pamela), posits the following issues:

A. Whether the trial court erred in determining that plaintiff exposed her children to inappropriate sexual behavior, thereby creating a substantial change in circumstances which vested the court with jurisdiction to entertain Defendant Dean Hertzler's petition to modify the custody and visitation Stipulation and Order of February 26, 1992.

B. Whether the trial court erred in determining that the best interests of the children are served here, and in every case, by limiting visitation between the children and their gay or lesbian parent to a de minimis level.

Appellee, Dean B. Hertzler (Dean), states the issue as:

1. Did the trial court abuse its discretion by granting the Appellee's petition and request for supervised visitation of Appellant with the parties' minor children?

The American Psychological Association and Wyoming Psychological Association filed an amicus curiae brief identifying the issue as:

Whether the trial court erred in holding that a mother's involvement in an open lesbian relationship provided an independent basis for restricting visitation with her children.

The Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, the American Civil Liberties Union, the Wyoming Chapter of the American Civil Liberties Union and the United Gays and Lesbians of Wyoming filed an amicus curiae brief in support of appellant and identified the following issues:

A. Whether the trial court erred in severely restricting Pamela Hertzler's visitation with her children based solely on the fact that she is a lesbian and without any evidence that her sexual orientation would harm her children.

B. Whether the trial court abused its discretion in concluding that the Hertzler children were "eroticized" based on its disapproval of Pamela's lesbianism and its determination to credit the testimony of an expert who admitted that his conclusions were influenced by the mother's sexual orientation; and whether the trial court further abused its discretion in assuming that when a lesbian parent is open and honest with her children about her sexual orientation, and displays affection, just as a non-gay parent commonly does, she "exposes" them to behavior that is sexual and inappropriate.

II. FACTS

Married in 1976, but unable to conceive children of their own, Dean and Pamela Hertzler adopted a baby boy and, a few years later, a baby girl. Less than two weeks after the second adoption became final, Pamela took both children and left Dean, filing for divorce. Incorporated in their divorce decree was Dean's stipulation to Pamela's primary custody of the children, expressly conditioned upon her disavowal of lesbianism and subject to his liberal visitation rights.

In late 1991, less than a year after the divorce and against their daughter's wishes, Pamela's parents informed Dean that their daughter was, indeed, a lesbian. Following that revelation, Pamela quickly acquiesced in transferring primary custody of the children to Dean, subject to her liberal visitation rights. By that time, Pamela had entered into an open and ongoing lesbian relationship with Peggy Keating, relocating to Lakewood, Ohio.

Dean availed himself of a match-making service to seek the affections, via letters and telephone calls, of Christine Thompson--herself a divorcee. In November of 1992, within two months of Dean's first letter, Christine came to visit Wyoming. An attraction quickly developed and was later consummated in marriage.

Insisting that she is a firm believer in Biblical principles, Christine manifested a strong desire to inculcate the children with those values. She convinced Dean that such a program should be pursued with a vengeance, eventually to include close questioning of the children about the details of Pamela's lifestyle, conducted amidst unrelenting exhortations against the perceived sins of Pamela.

With equally ill-conceived ardor, Pamela insisted upon fully informing the children as to her lifestyle. When visiting Ohio, the children "snuggled" with Pamela and her companion in bed; marched with the couple in a gay/lesbian rights parade; and participated in a "commitment" ceremony uniting Pamela and her new companion. Upon returning to Dean from such a visitation with Pamela, the children brought home an astonishing grasp of anatomical terminology, their articulation of which served only to deepen and reinforce Dean and Christine's leaden fears concerning activities which were taking place in Pamela's new home. Finally, driven by those dark fears, Dean obtained stringent modification of Pamela's visitation privileges, from which Pamela timely prosecutes this appeal.

The record is full of Dean and Christine's judgmental recriminations against Pamela's new life. On the other hand, the record is equally replete with Pamela's intensive and unrelenting efforts to immerse the children in her alternative lifestyle, seemingly to the point of indoctrination. As a consequence, we are asked to referee a contest between these protagonists of antithetical lifestyles. The manifold perils of such an exercise include the danger that we might superimpose our discretionary sensibilities upon those of the district court.

With equal and opposing force, each party vilifies the other's views and habits, inviting a decision rooted in the lifestyles of the parents rather than in the best interests of the children. In fact, we are unimpressed with the prejudice and condemnation heaped upon Pamela's lifestyle by Dean and Christine and remain equally dubious of Pamela's compulsion to relentlessly expose the children to every aspect of her relationship. Taking note that restrictions on Pamela's visitation have been eased during the pendency of this appeal, we eschew relative value judgments on the parents' respective lifestyles in favor of a decision based upon the best interests of the children, made with due regard for the sound discretion of the district court.

III. DISCUSSION

A. STANDARD OF REVIEW

The court entering a divorce decree retains jurisdiction to enforce or modify orders affecting child custody, visitation and maintenance as the interests of the children and the circumstances of the parents may require. Wyo.Stat. § 20-2-113(a) (1994); Jacobs v. Jacobs, 895 P.2d 441, 443 (Wyo.1995). Jurisdiction to modify such orders is properly occasioned only upon a showing of substantial change in the circumstances affecting the welfare of the children. Mulkey-Yelverton v. Blevins, 884 P.2d 41, 43-44 (Wyo.1994). The burden of demonstrating such a change is on the party seeking modification. Thompson v. Thompson, 824 P.2d 557, 559 (Wyo.1992) (quoting Goss v. Goss, 780 P.2d 306, 312 (Wyo.1989)).

Custody and visitation decisions necessarily summon broad discretionary authority in the district court. Love v. Love, 851 P.2d 1283, 1286 (Wyo.1993) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)). Adversarial enmity frequently forces the mantle of Solomon upon such courts. Sadly, even Solomonic wisdom becomes folly between parties seemingly prepared to subordinate the best interests of their children. The atmosphere in such cases is generally so charged, the decision so daunting, and accurate assessment of the character of the contestants so pivotal that we defer to the superior evidentiary perspective of the district court in custody and visitation decisions absent a clear abuse of discretion. Goff v. Goff, 844 P.2d 1087, 1092 (Wyo.1993).

Employment of judicial discretion is a definitively subjective exercise. Appellate review, however, probes the logic and soundness of discretionary decisions in light of more objectively measurable evidentiary underpinnings. Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The propriety of discretionary decisions is a function of ascertainable factual circumstances processed in a manner which is neither arbitrary nor capricious. Mintle, 764 P.2d at 257. Reasonable conclusions based upon evidence of record will not be disturbed on appeal. Thompson, 824 P.2d at 559. Furthermore, judgments supportable upon application of sound legal analysis to any grounds of record are equally inviolate, notwithstanding the district court's choice of a flawed approach predicated upon...