KES v. CAT, 04-39
| Citation | 107 P.3d 779,2005 WY 29 |
| Decision Date | 10 March 2005 |
| Docket Number | No. 04-39,04-39 |
| Parties | KES, f/k/a KET, Appellant (Plaintiff), v. CAT, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Douglas W. Weaver, Wheatland, Wyoming.
Representing Appellee: James A. Hardee, Douglas, Wyoming.
Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J.(Ret.)
[¶1] After about seventeen years of marriage, Mother and Father divorced. Mother was awarded custody of the parties' only child (the Child), who was almost eight years old. A year later, because Mother was suffering from psychological problems, Mother and Father agreed that Father would take temporary custody of the Child. The Child remained with Father until Father was called into active military duty, at which time the Child returned to Mother subject to stringent mental health care and monitoring requirements. When Father returned from active duty, a custody hearing was held. The district court modified the original decree and granted custody to Father. Mother appeals from that order. We affirm in part and reverse in part.
[¶2] Both Mother and Father present the following two issues for our review:
[¶3] Mother and Father divorced in March 2000 and Mother was awarded custody of the Child. After the divorce, Mother began to experience psychological problems, which, by her own admission, rendered her incapable of adequately caring for the Child. Mother and Father jointly petitioned for a temporary change of custody, which petition the district court granted in April 2001.
[¶4] Soon after the order granting temporary custody to Father was entered, Mother went to her parents' home in Oklahoma to seek medical attention. There she was diagnosed with bipolar disorder, ordered to undergo counseling, and prescribed medication. Mother then moved to Kansas where she began living with a friend, who supported her while she was ill.
[¶5] In March 2002, while she was living in Kansas, Mother filed a petition to regain custody of the Child. Before this petition could be heard, however, Father was called into active duty with the National Guard. An abbreviated hearing was held, after which the district court granted Mother custody of the Child while Father was on active duty, but ordered that the Child be returned to Father upon his return. The order also contained a number of conditions relating to Mother's mental and physical health that she would be required to observe while the Child was in her custody.
[¶6] Mother and the Child stayed in Kansas until December 2002, when they moved back to Oklahoma. Mother reported that she returned to Oklahoma to help care for an ailing grandmother, and to be close to C.S., whom she married in January 2003. Father returned from military service and on August 22, 2003, a custody hearing was held. Prior to any testimony, Father requested by oral motion that the district court judge speak with the Child alone in chambers. Mother objected, claiming that the Child was not competent to testify and that Father had not allowed her to see the Child the day before the hearing. The judge granted Father's motion and conducted a private interview with the Child, in which interview the Child expressed a desire to remain in Father's custody.
[¶7] The district court ultimately awarded Father custody. The decision letter noted that while the evidence presented indicated that Mother was currently capable of providing adequate care for the Child, the district court was concerned with Mother's "downplaying of the significance of her prior mental condition." The other factor cited in support of Father's custodial award was the Child's stated preference to remain in Father's custody.
[¶8] Mother filed a timely appeal.
[¶9] We review custody modification proceedings as follows:
[¶10] In order to obtain modification of the divorce decree, Father bore the burden of demonstrating that: (1) a material change in circumstances affecting the Child's welfare had occurred since the entry of the initial decree, and that (2) modification was in the Child's best interests. Clark v. Alexander, 953 P.2d 145, 150 (Wyo. 1998); Wilcox-Elliot v. Wilcox, 924 P.2d 419, 421 (Wyo. 1996), overruled on other grounds by Clark v. Alexander, 953 P.2d 145 (Wyo. 1998)
; Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2003). With respect to the change in circumstances, the district court stated: "[t]hus, this Court believes that the multiple changes in living circumstances in [the Child]'s life which have been caused by her parents has resulted in a substantial change in circumstance far beyond that which was contemplated by the [original] order."
[¶11] Mother asserts that "there are no factual findings, and in fact no evidence that these `multiple changes in living circumstances in [the Child]'s life' have been sufficiently harmful to the minor child." Mother argues that in order to establish a substantial change in circumstances a party must prove harm to the child. Although many times a change in circumstances warranting modification of custody will arise as the result of some action or inaction by one parent that is harmful to the child, this is not the standard. Rather, the test is whether the change in circumstances "affects the child's welfare . . .." JRS v. GMS, 2004 WY 60, ¶ 10, 90 P.3d 718, 723 (Wyo. 2004). No showing of harm to the child is required. For example, in Thompson v. Thompson, 824 P.2d 557, 559 (Wyo. 1992), we upheld a finding of changed circumstance warranting modification of custody where the child had been properly cared for and neither parent had deteriorated in parenting abilities, but rather one parent had "surged far ahead in her personal development and ability to serve as a parent." See also Jackson v. Jackson, 2004 WY 99, 96 P.3d 21 (Wyo. 2004)
.
[¶12] Mother's position that a showing of harm or detriment to the child is required before a change in circumstances can be established is the only argument she makes on appeal with respect to that issue. Because that is not the statutory standard, and because there was sufficient evidence of a material change in circumstances, we uphold the district court's finding that a material change in circumstances occurred. That leaves us to examine whether the modification was in the Child's best interests. The district court's decision letter indicated that the Child's stated custodial preference was a significant factor in its decision. In fact, the Child's preference and Mother's minimizing of her mental condition were the only two factors cited in awarding custody to Father. We will therefore turn to whether the evidence of that preference was properly obtained and considered.
[¶13] Mother claims that the district court abused its discretion when it conducted a private, in camera, interview with the Child over Mother's objection. In support of this argument, Mother asserts that the district court did not adequately determine the Child's competency to testify, and that because the Child had been with Father for the two months prior to the hearing and Father did not allow the Child to see Mother the night before the hearing, the district court's decision to conduct the interview over Mother's objection was unreasonable.
[¶14] We have long held that "the trial judge may interview a child to determine its preference as to living with either the mother or the father, provided that the child is of sufficient age to understand the effect of the expression of such preference, though an expression of such preference is not conclusive." Douglas v. Sheffner, 79 Wyo. 172, 331 P.2d 840, 844 (1958), superseded on other grounds by In Interest of MKM, 792 P.2d 1369 (Wyo. 1990)
. When a private interview occurs, the district court must "state in his decision the preference expressed by the child, if any, and further state as to whether or not and to what extent the statements of the child have been taken into consideration in arriving at the decision." Id. at 845. Whether obtained in open court or in camera, the child's...
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