In re MS, C-99-10.

• Decision Date: 04 August 2000
• Docket Number: No. C-99-10.,C-99-10.
• Citation: 9 P.3d 984
• Parties: In re MS: RDS, II, Appellant (Plaintiff), v. GEMN, Appellee (Defendant).
• Court: Wyoming Supreme Court

9 P.3d 984

In re MS:

RDS, II, Appellant (Plaintiff), v. GEMN, Appellee (Defendant).

No. C-99-10.

Supreme Court of Wyoming.

August 4, 2000.

Representing Appellant: Fred R. Dollison, Sheridan, Wyoming.

Representing Appellee: Lynn Boak, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL, and KITE, JJ.

GOLDEN, Justice.

Appellant RDS II (Father) sought custody of his minor child, MS, and appeals the trial court's order awarding joint legal custody and placing primary care with Appellee GEMN (Mother). Father was granted liberal visitation and ordered to pay child support. He contends that the child's preference was the sole basis of the award and the order is contrary to the evidence. After examining the record, we find that the evidence supports the decision, and the district court properly used its discretionary power when it determined it was in the best interest of the child to remain in Mother's physical custody. We affirm.

ISSUES

Father presents this issue on appeal:

Did the trial court abuse its discretion in awarding custody of a minor child to the mother solely on the basis of the child's preference and contrary to the recommendation of the court's appointed expert and contrary to the evidence?

Mother rephrases the issue as:

Was the weight of the evidence sufficient to support the trial court's decision to order custody of the minor child to remain with the mother?

FACTS

MS was born on May 28, 1993, to unmarried parents and cared for solely by Mother. Father refused to place his name on the birth certificate and did not begin paying child support until MS was three years old. In 1997, Mother married and later had a second child. In August of 1997, Father acknowledged paternity, a new birth certificate issued, and he began paying an increased amount of child support.

The parents' relationship was contentious, and in May of 1998, when MS was almost five years old, Father petitioned for custody. Mother counterclaimed to declare Father's paternity and for custody and support. Mother was granted temporary custody, support and attorney fees, and the parties stipulated to appointment of a guardian ad litem (GAL). Additionally, a court-appointed special advocate (CASA) was engaged to investigate abuse reports made against each parent. At Father's request, an expert witness, Dr. Ray Leugers, was appointed by the court to evaluate both parents and the child. During discovery, the district court compelled Father to provide financial information to Mother or be subject to sanctions.

The CASA and GAL submitted reports indicating that neither parent was abusive to MS and both recommending that custody remain with Mother. The matter went to trial, and Dr. Leugers testified that based on the results of various psychological tests, custody should be changed to Father because MS was fearful of her Mother's temper. Dr. Mary Bowers, MS' pediatrician since birth, testified for Mother and described her as a good mother who had provided good medical care for the child since her birth, and had timely accomplished all recommended wellcare treatment. In contrast, she described the few instances when Father had brought in the child as disruptive and involved accusing Mother of abuse and other inappropriate behavior in front of MS. On one occasion when Father brought MS in for bruising that he believed Mother had abusively inflicted, it was determined the child had received her bruises at Scotty's Skate Castle. Dr. Bowers acknowledged that Mother had difficulties with MS, but contended that she was a good mother who behaved appropriately with and in front of the child.

In its decision letter and order, the district court found that it was in MS' best interests to be in the primary care and custody of Mother subject to reasonable and liberal visitation with Father. Neither the decision letter nor the order articulates any findings of facts except that, noting that the parties' stipulation for the GAL specifically required it to reveal the child's preference, the court stated that the GAL had expressed MS' preference to Mother's primary custody. Father appeals.

DISCUSSION

Father contends that the district court abused its discretion because the absence of findings on the issues of custody and best interests indicates that the court based its decision solely on the child's stated preference and ignored the great weight of the evidence presented by Dr. Leugers and his recommendation that Father should have custody. As we observed in Resor v. Resor, 987 P.2d 146, 148 (Wyo.1999), our standard of review was succinctly stated in Reavis v. Reavis, 955 P.2d 428 (Wyo.1998) Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. 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...