Jks v. Ahf (In re Arf)

• Decision Date: 13 August 2013
• Docket Number: No. S–13–0031.,S–13–0031.
• Citation: 307 P.3d 852
• Parties: In the Matter of ARF, a minor child. JKS, Appellant (Petitioner), v. AHF, Appellee (Respondent).
• Court: Wyoming Supreme Court

307 P.3d 852

In the Matter of ARF, a minor child.
JKS, Appellant (Petitioner),
v.
AHF, Appellee (Respondent).

No. S–13–0031.

Supreme Court of Wyoming.

Aug. 13, 2013.

[307 P.3d 854]

Representing Appellant: Keith R. Nachbar, Keith R. Nachbar, PC, Casper, Wyoming.

Representing Appellee: Richard H. Peek, Attorney at Law, Casper, Wyoming.

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

BURKE, Justice.

[¶ 1] In this paternity proceeding, Father, JKS, appeals the district court's decision to grant custody of their eight-year-old daughter, ARF, to Mother, AHF. He also challenges the district court's calculation of child support arrearages and its imposition of time limits on the parties' trial presentations. We will affirm the district court's decisions with respect to custody and the time limits. However, because the district court's order does not comply with the statutory mandate to set forth the presumptive child support amount, we must reverse and remand the district court's child support decision.

ISSUES

[¶ 2] We have rephrased and reordered the issues presented by Father as follows:

1. Did the district court abuse its discretion in awarding custody to Mother?

2. Did the district court commit reversible error in its calculation of child support arrears?

3. Did the district court abuse its discretion in imposing a 160–minute limitation on each party's trial presentation?

FACTS

[¶ 3] In 2012, Father filed suit to establish his paternity of ARF, who was born in 2004. He sought custody of ARF, and asked the district court to order Mother to pay child support. Mother admitted Father's paternity, but asserted that she should have custody and Father should pay child support. Factual details relating directly to each issue will be reviewed in our discussion below.

[¶ 4] After a one-day hearing, the district court granted custody to Mother and established visitation for Father. The district court ordered Father to pay $465 per month in child support. It found that Father owed an additional $24,482 in child support for previous years, and ordered Father to pay $100 per month against this arrearage. Father appealed the district court's decision.

DISCUSSION I. CUSTODY OF ARF

[¶ 5] Child custody is a question committed to the sound discretion of the district court. Arnott v. Arnott, 2012 WY 167, ¶ 11, 293 P.3d 440, 444 (Wyo.2012). Accordingly, we review the district court's child custody decision for abuse of discretion.

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) (internal citations omitted).

[¶ 6] Father contends that the district court abused its discretion in granting custody to Mother. His contention stems from the fact that Mother's live-in fiancé was convicted in 2000 on one charge of third degree sexual assault and two counts of sexual exploitation of a child. The victims were girls aged thirteen and fourteen. Father argues, in summary, that he is a good and loving father with strong family support from his wife and his parents, and can offer a safe and stable home for ARF. In contrast, he claims that evidence of the fiancé's criminal history demonstrates that placing custody with Mother “seriously endangers the safety” of ARF. The district court abused its discretion, according to Father, when it ignored this evidence of endangerment.

[307 P.3d 855]

[¶ 7] The district court explained its child custody decision in oral remarks near the end of trial. It specifically noted that “neither parent is a bad parent.” It observed that ARF had been living with Mother for the past eight years, and indicated that the basic question was whether it was in ARF's best interest to remain in Mother's home, or to be removed and placed with Father. Based on “the facts that have been presented,” the district court concluded that it was in ARF's best interests for Mother to retain custody.

[¶ 8] As we review the record to determine whether there is evidence to support the district court's decision, the applicable standard of review requires us to consider 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, ¶ 6, 199 P.3d at 1089. Viewed in this light, there is ample evidence in the record to support the district court's decision.

[¶ 9] Mother has always had custody, although ARF has spent substantial amounts of time with Father, his wife, and his parents, particularly during the earliest years of her life. Mother testified “that what would be best for [ARF] is for her to remain in my home, because that is what she has known for the last eight years. And I—I will not refuse any visitations to [Father].” Mother thought it would be detrimental to ARF to remove her from Mother's home and place her with Father. A child and adolescent psychiatric nurse who had evaluated the relationship between Mother and ARF testified “That [ARF] very much enjoyed spending time with her mom; that she looked to her mom for answers and directions; that they obviously appeared familiar. They were light-hearted, a mutual respect. And it seemed sort of an overall happy mother/child relationship.”

[¶ 10] Both Mother and her fiancé have held the same jobs for several years. Mother takes ARF to daycare very early in the morning, on her way to work. However, the psychiatric nurse testified that this was not a concern, and that ARF did not spend “excessive” time in daycare. The daycare provider testified that ARF enjoyed coming to daycare and being with her friends. Mother testified that ARF was doing well in school.

[¶ 11] There is evidence supporting the district court's conclusion that Father was not a bad parent, but there is also evidence that suggests some concerns. Father has held numerous jobs over the years. For the past few years, he has lived in an apartment in his parents' basement without paying rent. There is evidence that, when ARF was in Father's home, she was watched primarily by his parents or his wife. Mother testified that ARF did not always get her medication as prescribed when she stayed with Father.

[¶ 12] Given this evidence, we cannot say that the district court's decision was unsupported or unreasonable. The record also demonstrates that the district court did not ignore the evidence of the fiancé's criminal history. To the contrary, the matter was directly addressed in comments near the close of trial. The district court observed that the fiancé:

made a grievous error a number of years ago. He did a terrible thing. There is no question about that. I'm not debating that. However, all of the evidence before me is that he has done what the criminal justice system demands of him; and that is, he has addressed his problem and done his best to rehabilitate himself.

[¶ 13] Evidence in the record supports the district court's finding on the fiancé's rehabilitation. Two expert witnesses testified that the fiancé was unlikely to reoffend. The first expert was a licensed clinical social worker who has worked with sex offenders for several years. The fiancé, during four years of parole after his release from prison, participated in weekly counseling sessions led by this social worker. The social worker had also conducted joint sessions with Mother and the fiancé. The social worker testified that the fiancé had successfully completed all of the requirements of the counseling program and parole.

[¶ 14] In the social worker's opinion, the fiancé had been at a low risk of reoffending when he completed his parole in 2010. Two

[307 P.3d 856]

years later, at the time of the trial, the social worker believed the fiancé presented a “very, very low risk” of reoffending. He specifically said he had no concerns about ARF living in the same home as the fiancé.

[¶ 15] The second expert witness was the psychiatric nurse mentioned above. As part of her evaluation, she also spent time with the fiancé and considered additional information about his prior convictions. She testified that she had no concerns for ARF's safety, and no concerns about her staying in a home with Mother and her fiancé.

[¶ 16] Father maintains that both expert witnesses were discredited on cross-examination. But “issues of credibility and the weight to be given to testimony are matters to be resolved by the trier of fact, not an appellate court. Thus, we may not substitute our judgment for that of a trial court with respect to issues concerning credibility.” Yoeuth v. State, 2009 WY 61, ¶ 31, 206 P.3d 1278, 1286 (Wyo.2009), quoting Carter Wallop v. Wallop, 2004 WY 46, ¶ 10, 88 P.3d 1022, 1025 (Wyo.2004). Moreover, as required by the applicable standard of review, we consider 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, ¶ 6, 199 P.3d at 1089. Viewed in that light, evidence of fiancé's rehabilitation and low risk of reoffending provides a reasonable basis for the district court's decision. We cannot conclude that it was an abuse of discretion to award custody to Mother.

[¶ 17] Father's additional argument is based on testimony by Mother and her fiancé that, in light of the fiancé's past, they had always followed “safety procedures” meant to protect both ARF and the fiancé. The fiancé never stayed alone with ARF, he limited physical contact with...