JCLK v. ZHB

• Decision Date: 20 July 2015
• Docket Number: No. S–14–0309.,S–14–0309.
• Citation: 353 P.3d 720,2015 WY 95
• Parties: JCLK k/n/a JCLS, Appellant (Respondent), v. ZHB, Appellee (Petitioner).
• Court: Wyoming Supreme Court

353 P.3d 720

2015 WY 95

JCLK k/n/a JCLS, Appellant (Respondent)

v.ZHB, Appellee (Petitioner).

No. S–14–0309.

Supreme Court of Wyoming.

July 20, 2015.

Representing Appellant: John C. Schumacher, White & White, P.C., Riverton, Wyoming.

Representing Appellee: No appearance.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

BURKE, Chief Justice.

[¶ 1] In this paternity action, JCLK (Mother) appeals the district court's decision to award primary custody of four-year-old BHB to ZHB (Father). Our review convinces us that the district court did not abuse its discretion. We will affirm.

ISSUE

[¶ 2] Mother raises two issues, which we have consolidated for the sake of clarity:

Did the district court abuse its discretion in awarding primary custody of BHB to Father?

FACTS

[¶ 3] BHB was born in May 2010, in Cheyenne, Wyoming. Although Mother and Father were never married, it is undisputed that Father is BHB's biological parent. In October 2010, Father filed a petition in the district court seeking to establish paternity, custody, visitation, and child support for BHB. A few days later, Father filed a motion for a mutual restraining order providing that BHB could not be removed from Laramie or Albany Counties during the pendency of the litigation. The district court entered the order.

[¶ 4] Aside from an occasional motion or stipulation for temporary visitation and a few standard district court orders concerning mediation and parenting classes, the district court's pleading file indicates that nothing happened in the matter until July 2013, when the district court issued a “Notice of Imminent Dismissal” due to inactivity in the case. Father responded with a request for a trial setting. Trial was held on August 28, 2014.

[¶ 5] Specific details of the evidence will be discussed as they relate to the issues below. A general outline will be set forth here. BHB was four at the time of the trial. He had lived with Mother since his birth. Mother had married, and was living in Shoshoni, Wyoming, at the time of trial. Also living in the household were Mother's husband, a seven-month-old half-sibling who is the biological child of Mother and her husband, and two half-siblings aged 5 and 6 who are the biological children of Mother and another man. Contrary to the restraining order prohibiting BHB's removal from Laramie or Albany Counties, Mother had lived with BHB in Guernsey, Wheatland, and Chugwater, all in Platte County, and in Shoshoni, in Fremont County.

[¶ 6] Father lived in Cheyenne at the time of trial, where his parents and other family members also resided. He had a steady job with an electric company, and was also serving in the Wyoming National Guard. He tried to have visitation with BHB “every couple of months,” and tried to call to check up on him “every couple of weeks.” Although Mother portrayed the contacts between Father and BHB as less frequent, she acknowledged that BHB appeared attached to Father. It was undisputed that Father had never provided significant financial support for BHB.

[¶ 7] Mother appeared pro se at trial. Father was represented by counsel. The witnesses at trial were Mother, Mother's husband, Father, and Father's mother. Both Mother and Father sought primary custody of BHB. The district court decided in favor of Father, and Mother challenges that decision on appeal.

STANDARD OF REVIEW

[¶ 8] Custody and visitation are committed to the sound discretion of the trial court. Blakely v. Blakely, 2009 WY 127, ¶ 6, 218 P.3d 253, 254 (Wyo.2009).

This Court has consistently recognized the broad discretion enjoyed by a district court in child custody matters. We will not interfere with the district court's custody determination absent procedural error or a clear abuse of discretion. In determining whether an abuse of discretion has occurred, our primary consideration is the reasonableness of the district court's decision in light of the evidence presented. We view the evidence in the light most favorable to the district court's determination, affording every favorable inference to the prevailing party and omitting from our consideration the conflicting evidence.

Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087, 1089 (Wyo.2009) (citations omitted).

DISCUSSION

[¶ 9] At the close of trial, the district court explained in considerable detail its decision to award primary custody to Father. It discussed all of the factors required by Wyo. Stat. Ann. § 20–2–201 (LexisNexis 2013) to be considered in a child custody case. The court found that both parents loved BHB, each had a quality relationship with him, and both were capable of providing adequate care for him. In discussing the parents' relative competency and fitness, the court expressed concerns about both Mother and Father.

[¶ 10] The district court's concerns about Mother included her smoking cigarettes even though BHB has respiratory problems, her violation of the restraining order by taking BHB out of Laramie and Albany Counties, and her failure to inform Father of her new locations when she moved. Perhaps most significantly, the district court also expressed concern about her judgment as a parent because she returned her two older children to their biological father after she discovered evidence that he may have abused one of them.

[¶ 11] The court's concerns about Father included his failure to pay child support throughout BHB's life, his limited contact with BHB, and his failure to move forward with his paternity suit for more than a year after it was filed. As positive aspects in Father's favor, the court listed “solid employment,” the financial capability to provide for BHB, the ability to provide health insurance, family available to help support BHB, and a loving and nurturing relationship with BHB. While the district court found it “a very difficult decision,” on balance it found that Father was the “more competent and fit parent in this case,” and awarded primary custody to Father and visitation to Mother.

[¶ 12] Mother's challenge to the district court's decision rests primarily on the fact that the custody determination effectively separates BHB from his half-siblings. Based on Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993), Mother points out that “separating siblings from each other through custody awards to different parents is not preferred.” She cites to our holding in Pace v. Pace, 2001 WY 43, ¶ 17, 22 P.3d 861, 867 (Wyo.2001) :

As future guidance to the trial courts, we hold that, when the exercise of its discretion in custody matters involves splitting custody of children between parents or other unconventional custody approaches, the trial court must provide an explanation of its reasoning and place its findings on the record. A reasoned explanation and an expression of findings of a trial court's conclusion will assure this court that a comprehensive evaluation of all relevant factors occurred prior to the award of custody.

(Footnote omitted.) Mother claims the district court erred because it failed to explain its reasons for separating BHB from his half-siblings and did not place any findings regarding the half-siblings on the record.

[¶ 13] We recognized in Dowdy, 864 P.2d at 440, that:

The general rule across the country is that separating siblings from each other through custody awards to different parents is not preferred. See, e.g., Craig v. McBride, 639 P.2d 303 (Alaska 1982) ; Pennington v. Pennington, 711 P.2d 254 (Utah 1985) ; and In re Marriage of Moe, 66 Or.App. 947, 676 P.2d 336 (1984). Keeping siblings together in the same household is generally considered to be the better practice. However, the effect of separating siblings from each other is just one of several factors courts consider in determining the primary issue—the best interests of the children. See Jay M. Zitter, Annotation, Child Custody: Separating Children by Custody Awards to Different Parents—Post–1975 Cases, 67 A.L.R.4th 354, § 2[a] (1989). See also In re Marriage of Barnthouse, 765 P.2d 610 (Colo.Ct.App.1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 184 (1989).

This concept has been repeated in other cases. E.g., Rogers v. Rogers, 973 P.2d 1118, 1121 (Wyo.1999) (“We acknowledge that separating siblings from each other through custody awards to different parents is not a preferred resolution, but the effect of the separation of siblings is simply one of several factors that courts consider in determining the best interests of the child or children.”). We recognized in Rogers, as we had in Dowdy, that “the effect of the separation of siblings is simply one of several factors that courts consider in determining the best interests of the child or children.” Rogers, 973 P.2d at 1121. In both Dowdy and Rogers, we upheld custody determinations that separated siblings or half-siblings because the courts had considered other appropriate factors, and did not abuse their discretion in determining that the best interests of the children were served by a custody arrangement that resulted in the separation of the siblings or half-siblings. Dowdy, 864 P.2d at 441 ; Rogers, 973 P.2d at 1121.

[¶ 14] In Pace, we said that a court “must” explain on the record the basis for a decision to separate siblings. Id., ¶ 17, 22 P.3d at 867. In Pace, the parents had been married for almost nineteen years. They had four sons, ages seventeen, thirteen, twelve, and six, and two daughters, ages sixteen and eight. Id., ¶ 3, 22 P.3d at 863. The district court awarded custody of the sons to the father and the daughters to the mother. Id., ¶ 8, 22 P.3d at 864. We noted that this result was “inconsistent with the evidence presented, the GAL's recommendation, and the parties' positions.” Id., ¶ 8, 22 P.3d at 864–65. We were also concerned that the custody award may have violated the prohibition in Wyo. Stat. Ann. § 20–2–113(a) (LexisNexis 1999) against awarding custody “solely on the basis of gender of the parent.” Pace, ¶ 12, 22 P.3d at 865. We reversed the district court's decision because...