Kreuter v. Kreuter, 86-111

• Citation: 728 P.2d 1129
• Decision Date: 10 December 1986
• Docket Number: No. 86-111,86-111
• Parties: Susan Elizabeth KREUTER, now Susan Elizabeth Disney, Appellant (Defendant), v. Jeffrey John KREUTER, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1129

728 P.2d 1129

Susan Elizabeth KREUTER, now Susan Elizabeth Disney, Appellant (Defendant), v. Jeffrey John KREUTER, Appellee (Plaintiff).

No. 86-111.

Supreme Court of Wyoming.

Dec. 10, 1986.

Fred W. Phifer, Wheatland, for appellant.

Mark L. Hughes of Hughes & Dumbrill, Sundance, for appellee.

Before THOMAS, C.J., BROWN, CARDINE, URGIBKIT, JJ., and RAPER, J., Retired.

RAPER, Justice, Retired.

The district judge, following a hearing, denied appellant's Motion for Modification of a divorce decree with respect to the custody of the child of the parties.

Appellant states the issues to be:

"1. Was Appellant[']s agreement to allow Plaintiff to have custody of the parties['] minor child obtained by fraud and duress?

"2. Did the Court abuse it's [sic] discretion in finding there has not been sufficient change in circumstances since the Decree of Divorce was entered to warrant a change in custody?

"3. Would a change in custody to her mother be in the best interests of the child, Amber Kreuter?"

Appellee believes the issues are:

"I. WAS APPELLANT'S AGREEMENT TO GRANT APPELLEE CUSTODY OF THE PARTIES' MINOR CHILD OBTAINED BY FRAUD AND DURESS?

"II. WAS THERE SUFFICIENT EVIDENCE TO WARRANT A MODIFICATION OF THE DECREE OF DIVORCE REGARDING CUSTODY OF THE PARTIES' MINOR CHILD PURSUANT TO WYOMING STATUTE § 20-2-113(a) [Cum.Supp.1986]?"

We will affirm.

The parties each filed a complaint for divorce on the same date, for temporary custody, alimony, child support, and attorney's fees. Appellant dismissed her proceedings and executed a property settlement, child custody, and support agreement, which granted custody to appellee. Entry of default was had, and a decree of divorce was entered shortly thereafter. Such decree approved the agreement entered into and its provisions were incorporated into the decree of divorce.

Section 20-2-113(a), W.S.1977, Cum.Supp.1986, ¹ provides for modification of provisions for custody and support in divorce decrees but the "circumstances" there referred to must be a substantial or material change of circumstances which outweigh society's interest in applying the doctrine of res judicata to a final decree of divorce. There must be an end to litigation at some point, or the legal system would become bogged down so that nothing would ever remain decided. Mentock v. Mentock, Wyo., 638 P.2d 156 (1981). The burden of proof lies with the party seeking the modification that a substantial or material change has occurred subsequent to the decree. Nuspl v. Nuspl, Wyo., 717 P.2d 341 (1986); Cubin v. Cubin, Wyo., 685 P.2d 680, 684 (1984).

Decisions regarding child support and custody rest largely with the district court which we will not disturb in the absence of a grave abuse of discretion or violation of some legal principle. Nuspl v. Nuspl, supra; Harrington v. Harrington, Wyo., 660 P.2d 356, 360 (1983).

Remarriage by one of the divorced parents, standing alone, does not constitute a material change in circumstances sufficient to justify a change of custody. The best interests of the child are the paramount consideration in determining custody of a child. If changes in custody are made with every change in marital status of divorced parents, the lives of children of broken homes would be made miserable through recurrent efforts of parents to satisfy their own desires to have custody, and the paramount purpose would be defeated. This is particularly true where both parents are good and proper parents to have custody. Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093 (1953).

" * * * emotional involvement of the parties tends to, in their eyes, magnify out of proportion the importance of all matters in connection therewith." Harrington v. Harrington, supra, 660 P.2d at 361.

We now apply the foregoing settled principles of law to the record and facts, adding such further citations and facts as may appear necessary.

I

Appellant at the time of filing her complaint for divorce was represented by counsel. She was not employed and had no funds for attorney's fees, but was advised by her counsel that she could seek attorney's fees from her husband, but if not allowed by the court, she would be required to pay them from funds she would have to obtain from wherever she could.

At the time appellant's complaint for divorce was filed, she did not know that her husband had preceded her in filing a complaint for divorce. Both requested custody of the child of their marriage, a daughter one year of age.

Appellant testified that appellee had given her money to go for groceries at a nearby town. While returning, she observed her husband driving down the highway in the opposite direction with their daughter with him. Appellant thought at the time he was going after some building material. She later determined from a note left by the appellee that he was on his way to his mother's home in Minnesota.

Appellant further testified that when appellee returned from Minnesota, he did not get in touch with her but she found out when she called his employer that he was back. He had arranged, prior to departing, for a trailer home and was living there with their daughter and his mother who had returned with him.

Appellant asserts that appellee and his mother kept after her to sign the necessary papers, so he could go ahead with the divorce and have custody of their daughter. It is the claim of appellant that she was threatened by appellee that if she did not sign, her name would be "blackened" around town. This is disputed by appellee who testified that he had only told her he was going to fight hard to obtain custody.

Appellant's further claim was that appellee had represented to her that they would get together again and both would then have their daughter. Appellee denied such representations and stated that he had never made promises to do so.

Appellant eventually requested her attorney to dismiss her divorce action and signed the agreement. She did not have advice of counsel nor was he present when she signed the agreement.

In explaining why she signed the agreement she testified she had no money, she had no place right then, and did not know where she would be and when she did, it would be "for temporary." She further testified that she knew appellee would not hurt her daughter and wanted to leave her with him, because the child had those necessities which she (appellant) could not provide. She has remarried and can now provide a home.

No serious question arose as to whether either of the parents was now unfit to have custody.

Aligning the law and the facts, the trial judge was correct in all respects in finding no material change in the circumstances of the parents which would justify a change of custody of their child. The district court did not abuse its discretion. ² We consider this disposition reasonable under the circumstances.

In summary then, the only change is her remarriage and that, alone, is not a material change, particularly when both parties to a divorce are fit parents. That the child is a little girl is no consideration in the light of § 20-2-113(a), supra, stating that "no award of custody shall be made solely on the basis of gender of the parent." The best interests of the child are being served, as is the judicial principle of finality in its decrees.

II

With respect to the issue of fraud, the appellant asserted that the agreement for custody of the minor child in appellee was obtained by fraud and duress imposed by appellee and his mother upon appellant...