Lawrence v. Lawrence

• Decision Date: 21 May 1981
• Docket Number: No. 5454,5454
• Citation: 628 P.2d 542
• Parties: Thomas Dwight LAWRENCE, Appellant (Plaintiff), v. Lori Ann LAWRENCE, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 542

628 P.2d 542

Thomas Dwight LAWRENCE, Appellant (Plaintiff), v. Lori Ann LAWRENCE, Appellee (Defendant).

No. 5454.

Supreme Court of Wyoming.

May 21, 1981.

Jack R. Gage of Hanes, Gage & Burke, P. C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.

Frank J. Jones, Wheatland, signed the brief and appeared in oral argument on behalf of appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Appellant-plaintiff appeals from that portion of a divorce decree which awarded custody of the 18-month-old son of the parties to appellee-defendant, the wife.

We affirm.

Appellant words the issues for review on this appeal as follows:

"a) Did this case, and does the procedure in Wyoming trial courts in child custody cases, deny equal protection and due process to fathers?

"b) Are the Findings of Fact and Conclusions of Law supported by the evidence?

"c) Should Wyoming's tender years doctrine and/or maternal preference be overturned?

"d) Did the trial court properly apply applicable statutory law?

"e) Are the Findings of Fact and Conclusions of Law properly structured?"

Such issues and appellant's argument upon them are founded on the contention that the award of child custody was here made on a presumption that the wife is entitled to custody if the relative fitness of the parties are the same. Appellant describes the system for determining custody in Wyoming as being a "mud-slinging" contest rather than a "no fault" system as was intended by the legislature in a 1977 amendment of § 20-2-113(a). ¹ He contends that the trial courts improperly continued to apply a "maternal presumption" articulated in Butcher v. Butcher, Wyo., 363 P.2d 923, 924 (1961) that, "ordinarily the care and custody of young children should be awarded to the mother"; that of the recognition by the mother of this attitude of the courts tends to encourage her to seek a divorce rather than expending more effort toward a successful marriage; and that a "matriarchal" society results in which many children are raised only by their mothers. He argues that the father has a heavier burden of proof than does the mother in that he must show his fitness and the mother's unfitness to prevail whereas the mother can prevail upon the showing of her own fitness only. This, he says, is a denial of equal protection of the laws.

These policy and philosophical arguments ² have no pertinency to the facts of this case. Appellant points to finding of fact number 32 made by the trial court, i. e., "(t)hat both the plaintiff and the defendant are fit and proper persons to have the care, custody and control of said minor child," to support his contention that the child custody award was made on an improper and illegal assumption that such custody is ordinarily to be that of the mother. Appellant completely disregards the other findings of fact made by the court which reflect consideration given by it to all aspects of the relationship in an effort to make the award which would be in the best interests of the child.

The following findings of fact and conclusions of law as made by the trial court indicate the consideration given by the court to factors other than one "solely" on gender of the parents as required by § 20-2-113(a) in making the determination of child custody:

"FINDINGS OF FACT

"4. One child, Jason Beau Lawrence, was born on the 23rd day of May, 1979, as issue of this marriage.

"5. Plaintiff would yell and curse at the minor child during the marriage, the last time being within one or two months prior to the time the parties separated, the date of separation being June 29, 1980.

"6. Plaintiff has at times displayed a violent temper in the presence of the child, one time throwing a candelabra into the wall, breaking the candelabra and another time hitting a door with his fist making a hole in the door.

"7. Defendant has shown continued love and devotion to the child and plaintiff has at times demonstrated loss of patience and frustration with actions of the child, in particular at times when the child would cry.

"8. Plaintiff did not care for the minor child when the child was very small and would sleep all night although asked to care for him by the child's mother.

"9. Plaintiff did not attend the first birthday party of the minor child.

"10. On one occasion plaintiff refused to attend to or care for the parties' minor child when requested to do so by Lori Ann Lawrence while she was ill and experiencing great discomfort.

"11. After the separation of the parties defendant returned to the residence of plaintiff to obtain some of her personal belongings and found moldy food in the refrigerator. The minor child of the parties was in the care, custody and control of the plaintiff at this time.

"12. While in the sole care of plaintiff for a period immediately preceding the trial of this matter the minor child suffered from a respiratory illness and showed signs of bad diaper rash.

"13. Defendant presently resides with her parents in a well furnished, well kept three bedroom home located in Wheatland, Wyoming, in which the parties' minor child has his own room.

"14. Defendant can provide a suitable home environment for the parties' minor child.

"15. Defendant has made arrangements for placement of the minor child in a licensed day care center during the hours she is at her place of employment.

"16. Defendant receives free medical service for herself and her minor child as a benefit of her employment with the Wheatland Medical Clinic.

"17. Jeff Nelson, Family Service Specialist of the Platte County Department of Social Services conducted a home study of the home of Lori Ann Lawrence (as ordered by the court) and found that the parties' minor child would not want for love, attention or care in the home and that the home was well furnished and well kept.

"18. Defendant left the family home on the 29th day of June, 1980, because of boredom as a result of plaintiff continually watching television while home or sleeping during the early evening hours and not showing attention to her or the parties' minor child.

"22. Plaintiff has displayed a violent temper at times when upset such as putting his fist through the door, shouting and cursing at defendant when she was unable to get a vehicle started, and throwing a cooked meal in the trash and refusing to eat, the latest incident occurring in April of 1980.

"23. Plaintiff habitually used profane and obscene language in the presence of defendant, the parties' minor child and in the company of others.

"30. As an ultimate finding of fact the court finds there was conflicting testimony given by the parties in various area (sic) relating to the care of the minor child by the respective parties, the relationship of the parties to each other, the general conduct and attitude of the parties, the love and devotion shown by the parties to the child and to each other and the conduct of the defendant after attending the modeling school.

"31. That on two occasions during the marriage, the defendant wife committed adultery, once prior to the separation of the parties and once after their separation; that defendant's conduct in this regard was occasioned by the plaintiff's withholding of love and affection to the defendant as set forth in finding of fact No. 20.

"32. That both the plaintiff and the defendant are fit and proper persons to have the care, custody and control of said minor child.

"CONCLUSIONS OF LAW

"1. Where there is conflicting testimony the court concludes the plaintiff's testimony is less convicing (sic) and less believable than that of the defendant and the court gives less credence and less weight to the plaintiff's testimony in the areas where the testimony was conflicting.

"7. The defendant, Lori Ann Lawrence, should have vested in her the care, custody and control of the minor child of the parties, Jason Beau Lawrence, subject to reasonable and generous visitation rights in the plaintiff.

"8. The plaintiff, Thomas Dwight Lawrence, should pay the sum of $150.00 per month unto defendant as his share of support for the care and maintenance of the parties' minor child; provided, however, that in the event that plaintiff should have the care of the minor child under visitation rights for a period of one full month or more, that said child support payments shall, for each such month, be reduced to $75.00 for that particular month.

" * * *."

The ultimate goal in awarding child custody is to accomplish the best interests of the child. This is expressed in § 20-2-113(a), supra. In its opinion letter, the trial court said that in making the award to appellee in this case, it:

" * * * found on the balancing of all of the testimony and evidence in the case that it would be in the best interests of said minor child to so award custody in this case."

There is no basis for appellant's contention that a "maternal presumption" was applied in this case. Therefore, he cannot support error with reference to issues, a, c and d here presented for review.

In support of his argument that the findings of fact and conclusions of law were not supported by the evidence (issue b), appellant refers to testimony adverse to appellee's "fitness" to be awarded custody of the child and to testimony such as that of a psychologist who testified that in her opinion sex should not be a determining factor in awarding custody and that "with two parents being equal in the majority, then I would...