Ic v. DW

• Decision Date: 07 October 2015
• Docket Number: No. S–15–0037.,S–15–0037.
• Citation: 2015 WY 135,360 P.3d 999
• Parties: IC, Appellant (Petitioner), v. DW, Appellee (Respondent).
• Court: Wyoming Supreme Court

360 P.3d 999

2015 WY 135

IC, Appellant (Petitioner),

v.DW, Appellee (Respondent).

No. S–15–0037.

Supreme Court of Wyoming.

Oct. 7, 2015.

Representing Appellant: James K. Lubingand Leah K. Corriganof Lubing & Corrigan, LLC, Jackson, Wyoming.

Representing Appellee: Richard J. Mulliganof Mulligan Law Office, Jackson, Wyoming; Heather Noble, Attorney at Law, Jackson, Wyoming.

Opinion

DAVIS, Justice.

[¶ 1] Appellant Father challenges a decree awarding Mother primary physical custody of their son in a paternity case. He contends that the district court abused its discretion in several ways by determining custody as it did. Father also complains that the visitation schedule is not sufficiently detailed. We affirm the district court's award of primary physical custody to Mother, but remand for further proceedings so that the district court can enter a decree that provides additional detail with regard to visitation.

ISSUES

[¶ 2] 1. Is the district court's Decree Establishing Custody, Visitation, Child Support & Name Change,which awarded primary physical custody to Mother, an abuse of discretion that does not serve the child's best interests?

2. Does the decree fail to set forth a visitation plan in sufficient detail to promote understanding and compliance, in violation of Wyo. Stat. Ann. § 20–2–202(a)(i)(LexisNexis 2015)?

FACTS

[¶ 3] In February of 2013, the parties had a sexual encounter in Portland, Oregon. Mother was attending college there, and Father was visiting from Washington, where he also attended college. Mother became pregnant as a result of the encounter. Thereafter, the parties attempted unsuccessfully to develop a romantic relationship while both were still living in the Pacific Northwest. However, that effort did not work out, and their relationship became acrimonious. Mother returned to her hometown of Jackson, Wyoming in July 2013, while Father remained in Washington. Their child was born in Jackson in 2013.

[¶ 4] This case began just before the child was born, when Father filed a petition to establish paternity, custody and support, along with a myriad of related pleadings. After the birth, Father filed additional pleadings raising issues culminating in a trial before the district court¹on July 22–23, 2014, concerning, inter alia,custody and visitation.

[¶ 5] The court heard testimony from Father, Mother, family members, friends and Father's two experts, a clinical neuropsychologist and a pediatrician. It then entered a 21–page Decree Establishing Custody, Visitation, Child Support & Name Change.The court made detailed and extensive findings of fact and conclusions of law, granted the parties joint legal custody, and awarded primary physical custody to Mother. Father was awarded visitation as more fully discussed below.

[¶ 6] Father timely perfected this appeal.

STANDARD OF REVIEW

[¶ 7] Decisions that involve custody, visitation and child support are committed to the sound discretion of the district court. Wright v. Wright,2015 WY 37, ¶ 16, 344 P.3d 267, 272 (Wyo.2015). We have explained:

It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.

A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored.

Stevens v. Stevens,2014 WY 23, ¶ 8, 318 P.3d 802, 805–06 (Wyo.2014)(citations and internal quotation marks omitted).

DISCUSSION

Primary Physical Custody Determination

[¶ 8] Father asserts that the district court abused its discretion in awarding Mother primary physical custody by (1) consistently making findings of fact that were unsupported by and contrary to the evidence presented; (2) arriving at conclusions of law that were contrary to the best interests of the child and a misapplication of the factors set forth in Wyo. Stat. Ann. § 20–2–201(a); and (3) expressing clear gender bias in favor of Mother. A solicitous review of the record and decree belies his claims.

[¶ 9] With respect to Father's first argument, he selects certain findings of fact and contends that they are not supported by the evidence. When these findings are compared to the record and read in context, we do not find them to be unsupported.

• The parties disagreed about the length of visitation which would be in the best interest of a very young child like RW. Mother successfully sought to limit visitation to four-hour blocks because the child is so young and is nursing, while Father sought longer periods. Father contends that there is really no evidence supporting Finding No. 7 that “[e]ven 4–hour blocks of visitation have negatively affected the child's sleeping schedule.” Mother, who personally observed this circumstance, testified to that effect. While Father's experts opined that generally more than four hours may not disrupt a child's sleep habits, those experts did not have the benefit of observing or even meeting the child. There was also additional evidence that provides context and support for this finding, such as that concerning the child's feeding habits. In the face of this conflict, the district court simply found Mother's testimony, which was based on actual experience, more credible. We are not at liberty to disregard it on appeal.

• Father argued for a shared parenting arrangement. Finding No. 9 states: “Because the father visits the child only once per month, mother believes that a shared parenting relationship with the child is unrealistic.” Father argues that this finding omits his own beliefs, which is true, so far as it goes. However, his own testimony confirms Mother's feelings, which are reflected, inter alia,in Finding No. 17 (with which he does not take issue in this appeal): “Given the distance between Seattle, Washington and Jackson, Wyoming, father's employment limits his ability to visit his child to one visit per month. The father admitted the accuracy [of a trial exhibit], which shows that through June, 2014 the child has spent approximately 2.2% of his time with his father and 97.8% of his time with his mother.” Even one of Father's own experts could not explain how shared parenting would work due to the geographic barrier between the parties.

• Father also takes issue with Finding No. 23, arguing that it was taken out of context from the testimony. That finding deals with one of Father's experts: “Dr. Anderson [the neuropsychologist] testified that she is not aware of anything in this case that detracts from her general opinions. She also acknowledged that more visitation by the father is limited by the father's limited travel to Jackson, Wyoming.” That finding is entirely consistent with Dr. Anderson's testimony, wherein she opined that longer visits would be preferable, but acknowledged that she understood that Father's visitation was “somewhat” regulated by the amount of time that he is willing to travel to and stay in Jackson, Wyoming.

• In Finding No. 25 of the decree, the district court found that Dr. Anderson stated “that it would not benefit a child to remove the child from his primary attachment and place him in a situation where [the] child no longer regularly saw his primary caregiver” and that she acknowledged “that she knows of no circumstances in this case that warrant changing custody from the mother to the father.” Father complains that Dr. Anderson actually stated it would not benefit the child to abruptlyremove him from his primary attachment. After reading all of Dr. Anderson's testimony, we are not persuaded. Indeed, when cross-examined, Dr. Anderson conceded that under the circumstances, with the parties having never been married and having had only a very brief relationship and living so far apart, attempting to transition the child away from his primary caregiver over time with both parents in the new environment would not be very practical. Furthermore, as to the latter portion of the finding, Father delves into the semantics of the district court's use of the term “warrant.” But we believe such an argument is without merit, as Dr. Anderson's testimony is clear:

Q. And you are not aware, are you, of any circumstances in this case that would requirethat this child be removed from his primary secure attachment?

A. That's correct.

(Emphasis added.) Although “warrant” may have a slightly different meaning than “require”, the record supports the finding.

• Finally, Father asserts that Finding No. 27 misconstrues the testimony of his other expert, Dr. Neuman, the pediatrician. This finding explains the expert's general testimony concerning custodial and non-custodial parents and the possibility of “stranger anxiety” that can be caused by encounters with the non-custodial parent. The finding also says that “Dr. Neuman therefore advocated that the father spend more time with the child to ease the effects of stranger anxiety.” When Finding No. 27 is compared to Dr. Neuman's testimony, we are unable to discern any misconstruction of that testimony.

[¶ 10] We have studied the record, and contrary to Father's contention, the district court's findings of fact (numbering 33 in all) are plainly supported by the evidence.

[¶ 11] We now turn to Father's next argument that the district court made conclusions of law that were contrary to the...