Mintle v. Mintle

• Decision Date: 08 November 1988
• Docket Number: No. 88-90,88-90
• Citation: 764 P.2d 255
• Parties: Robert Mark MINTLE, Appellant (Plaintiff), v. Teresa Rea MINTLE, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 255

764 P.2d 255

Robert Mark MINTLE, Appellant (Plaintiff), v. Teresa Rea MINTLE, Appellee (Defendant).

No. 88-90.

Supreme Court of Wyoming.

Nov. 8, 1988.

Rehearing Denied Dec. 1, 1988.

Robert T. Moxley of Whitehead, Gage & Davidson, P.C., Cheyenne, for appellant.

William W. Harden of Harden, Harden & Peek, Casper, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Robert Mark Mintle (husband) appeals a divorce decree entered on January 6, 1987. In the decree the trial court granted custody of the two Mintle daughters to appellee Teresa Rea Mintle (wife) and ordered husband to pay $350 child support per month and wife's attorney's fees. Husband raises essentially four issues all asserting an abuse of trial court discretion. Considering his arguments, we review two evidentiary rulings, the grant of custody to wife, the amount of child support ordered, and the award of attorney's fees to wife.

We affirm.

The parties were married in Casper, Wyoming, on September 2, 1977. The same year, on June 27, they had their first daughter, Brenda Lee Mintle. Their second daughter, Christine Lynn Mintle, was born on September 10, 1978. By 1987, the parties were at odds. Their bad relations culminated on July 9, 1987, when husband filed a complaint seeking divorce and custody of the two children.

The case was tried as a bench trial on December 14, 1987. Husband called wife as an adverse witness. Wife testified about her care and discipline of the children and about various events that took place during the pendency of the divorce action. Much of her testimony involved the parties' disagreements over husband's visitation of the children during that time.

Husband also testified about these events, refreshing his memory from his diary. This diary was not offered into evidence at trial. Concerning his income, husband testified that his present job paid $240 per week, but that he did not always get to work a full week. He estimated the job would last through 1988. Husband testified that he expected independent income from other work, and he thought he could sell roughly thirty cords of firewood during the winter for $75 per cord. During the summer he contracted various landscaping jobs. Husband testified he had turned down offers of employment received since his last energy-related job in 1985. When asked about his debts, he listed day-to-day living expenses, a house payment, and a debt of $1,300. He also admitted to having withdrawn approximately $5,000 from each of two family bank accounts established for the children. These withdrawals took place before husband filed his complaint for divorce, and wife was never given access to those funds.

The trial court also heard in camera testimony from the two Mintle daughters. Both children stated a preference for living with their mother.

Toward the conclusion of husband's testimony, the trial court suggested that both parties submit a written summary of their additional evidence and arguments for a final determination. This was done in lieu of an additional hearing, and both parties agreed to this arrangement. The parties submitted their summaries, arguments, and supporting materials over the following two weeks. In her submission wife included two affidavits supporting her request for attorney's fees.

The trial court filed its decision letter on December 16, 1987, and a corresponding divorce decree on January 6, 1988. In the decree, the trial court awarded custody to wife, ordered husband to pay $350 child support per month, set out specific visitation instructions, and awarded wife attorney's fees of $2,537.50. Husband appeals the decree.

Husband first contends that the trial court abused its discretion when, on relevancy grounds, it sustained wife's objections to husband's direct examination of wife, and husband's direct examination of wife's neighbor, Donna Boyd, concerning wife's alleged plan to abscond with the two children. Wife's first objection, during husband's direct examination of wife, occurred when husband's counsel referred to wife's deposition testimony about her alleged plan to take the children with her out of state. Rather than repeat her earlier denial of such a plan, wife answered that at one point she had planned to do that but had changed her mind. Husband's counsel next asked about the timing of her change of mind. That question drew a relevancy objection from wife's counsel. Although proposing to make an offer of proof, husband's counsel did not; instead, he argued that his line of questioning went to wife's credibility.

Wife's second objection occurred during husband's direct examination of wife's neighbor, Donna Boyd. Husband's counsel asked Donna Boyd about her knowledge that wife was planning to leave husband. Specifically, he asked Donna Boyd about the substance of a conversation she allegedly had with wife in July 1987. Wife's counsel objected to the relevancy of the question. The trial court sustained the objection and allowed husband's counsel to make an offer of proof, which included arguments that Donna Boyd's testimony was admissible to challenge wife's credibility about planning to leave with the children and to challenge her fitness as a potential custodial parent to fulfill duties to afford visitation between the father and his children and to promote the father-child relationship.

Evidentiary rulings are within the sound discretion of the trial court; we defer to them absent an appellant's clear showing of an abuse of that discretion. Arnold v. Mountain West Farm Bureau Mutual Insurance Company, Inc., 707 P.2d 161, 165 (Wyo.1985). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Martin v. State, 720 P.2d 894, 897 (Wyo.1986). Applying these standards, we hold the trial court erred by sustaining wife's objections to husband's questions of wife and Donna Boyd.

Concerning wife's objections to husband's questions of her, the trial court should have allowed husband's counsel to challenge wife's credibility. In her deposition she testified that she did not plan to leave with the children. At trial she testified that she did plan to leave with the children at one time, but changed her mind. The trial court did not permit enough questioning to explain the apparent change in wife's testimony. Husband should have been allowed to pursue that perceived inconsistency.

We also disagree with the trial court's ruling on the relevancy objection to wife's testimony. Relevant evidence is "evidence having any tendency to make the existence of a material fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.) W.R.E. 401. In a divorce case involving custody of children, W.S. 20-2-113(a) (June 1987 Repl.) directs the trial court to "consider the relative competency of both parents * * *." (Emphasis added.) One aspect of a person's relative competency and fitness as a parent has to be his or her willingness to allow the noncustodial parent to visit the children and maintain a parental-child relationship. Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4, 10 (1987). Cf., Henson v. Henson, 384 P.2d 721, 723 (Wyo.1963). Thus, a party's fitness as a parent is a material fact that is of consequence to the determination of the custody question. Id. Evidence that a custodial parent has taken children from a jurisdiction and thereby denied the other parent visitation can be grounds for modification of a custody decree. Id. 733 P.2d at 11. See generally Annotation, Interference By Custodian of Child With Noncustodial Parent's Visitation Rights as Ground for Change of Custody, 28 A.L.R.4th 9, § 6 (1984 & Supp.1987). In the same sense, evidence that a parent planned to abscond with children who are the subject of a pending custody battle, and thereby deny the other parent visitation, is relevant to an initial custody determination under W.S. 20-2-113(a) (June 1987 Repl.). The trial court did not have to believe that wife planned to leave with the children in an effort to deny husband visitation, but husband's evidence on that issue was relevant.

Testimony Donna Boyd might have given about wife's alleged plan was similarly relevant and should have been allowed by the trial court. Donna Boyd's conversations with wife ¹ about the alleged plan to leave with the children were also admissible as proof of a specific instance of wife's conduct offered to prove her lack of character as a competent custodial parent. In a divorce action involving custody of children, each party's fitness as a parent is an essential element of the claim involved. 1A J. Wigmore, Evidence § 69.1 at 1457. See also W.S. 20-2-113(a) (June 1987 Repl.) When a person's character is an essential element of the claim involved, proof of that character may be made by specific instances of conduct. W.R.E. 405(b). See also Ex parte Berryhill, 410 So.2d 416, 419 (Ala.1982); and 1A Wigmore, supra. Donna Boyd's testimony would have been admissible under W.R.E. 405.

Having identified these two incorrect trial court rulings, husband must show that these rulings constituted prejudicial error. The trial court's incorrect rulings must adversely affect his substantial rights so that, without them, a reasonable possibility exists of a custody decision more favorable to him. W.R.A.P. 7.04; and Shields v. Carnahan, 744 P.2d 1115, 1117 (Wyo.1987) (citing ABC Builders, Inc. v. Phillips, 632 P.2d 925, 935 (Wyo.1981)).

Husband did not make that showing on this issue. Although the trial court did not hear more from wife's counsel about the inconsistency between her deposition testimony and her trial testimony, it did hear enough to know that an inconsistency might...