Pace v. Pace, 00-50.

Decision Date03 May 2001
Docket NumberNo. 00-50.,00-50.
Citation2001 WY 43,22 P.3d 861
PartiesVicky H. PACE, Appellant (Plaintiff), v. Kevin J. PACE, Appellee (Defendant).
CourtWyoming Supreme Court

Representing Appellant: John P. LaBuda of Palmer & LaBuda, P.C., Rock Springs, WY.

Representing Appellee: V. Anthony Vehar of Vehar Law Offices, P.C., Evanston, WY.

Before LEHMAN, C.J., and GOLDEN, HILL and KITE, JJ.

KITE, Justice.

[¶ 1] This appeal concerns a divorce decree which resulted in an unexplained court decision that split custody of the couple's six minor children. The court awarded custody of the two girls to Vicky Pace (the mother) and custody of the four boys to Kevin Pace (the father). We reverse and remand for additional findings and a new trial to elicit additional evidence to supplement the record. We also direct that a complete explanation for the decision be provided as it is not possible to determine from the record whether gender was the sole basis for this split of custody in violation of Wyo. Stat. Ann. § 20-2-113(a) (LEXIS 1999) (repealed 2000).

ISSUES

[¶ 2] The mother presents these issues for our review:

A. Did the district court award custody of the parties' minor children based upon gender in violation of W.S. 20-2-113?
B. Did the district court fail to justify a change in custody from its prior temporary custody order?
C. Did the district court err in permitting the guardian ad litem to act as attorney and a fact witness?

The father states the issue as follows:

Did the trial court abuse its discretion in its custody award of the parties' minor children?
FACTS

[¶ 3] The mother filed for a divorce from the father and sought primary physical custody of all six of their minor children. The father answered and also sought custody of the children. The couple had been married for almost nineteen years and had four sons (ages seventeen, thirteen, twelve, and six) and two daughters (ages sixteen and eight). In the Order on Temporary Custody, the court appointed a guardian ad litem (GAL), who was an attorney, for the children and ordered the parties to be examined by an agreed upon mental health professional. The court awarded temporary custody to the mother with reasonable visitation to the father. The court indicated it was in the best interests of the children for custody to be changed no more than once, if possible, and, because the children had been in the mother's custody from the date of separation, it would remain so pending trial.

[¶ 4] On August 26, 1999, three witnesses testified at trial—the father, the mother, and the GAL. The father and the mother each testified about numerous problems and disputes which had developed over the term of the temporary custody. The mother complained the father made unreasonable, last minute demands for visitation and, on one occasion, entered her home through a window without her knowledge and took three of the boys on an out-of-state trip without her permission. The father, on the other hand, claimed the mother placed unreasonable limitations on his visitation which included requiring the children to complete various chores before the visitation, requiring advance notice of his desire for visitation, and forbidding the children to talk on the telephone. The GAL participated in presenting evidence by questioning the parties as counsel.

[¶ 5] After hearing testimony of the parent's complaints about one another concerning visitation, the trial court asked the GAL to come forward and testify as to the results of her investigation and to offer her recommendation. Neither party objected to the GAL's report and recommendation being presented through her testimony. The GAL recommended a split arrangement in which the mother would receive custody of the two youngest children, the six-year-old boy and the eight-year-old girl, as well as the sixteen-year-old girl and the father would receive custody of the three boys, ages twelve, thirteen, and seventeen. She further testified that, in her opinion, the oldest girl "could go with the father almost as easily." The GAL suggested a visitation schedule which would have allowed all the children to be together each weekend, alternating weekends with the mother and the father. She based her recommendation on an investigation which consisted of an approximately four-hour visit, during which she met with each child, and one interview with each parent. The record is devoid of evidence that the GAL consulted with a psychologist for the children, teachers, coaches, relatives, or the parties' and the children's friends.

[¶ 6] The GAL confirmed the parties were making things difficult for each other during visitation and stated: "[T]hese parents have not been good to each other and have been manipulative and, putting it frankly, jerks to each other during these proceeding[s]." She agreed with the psychologist's conclusion that both parents were dependent, compulsive, and controlling. However, she also observed that the children, in her opinion, were "exceptional," "so responsible, so moral, [and] so caring." Although the GAL recognized the custody recommendation was "unusual," she made it quite clear she primarily based it on her belief that splitting custody would encourage a situation where "both parents will make sure the other parent will have access to the children." She testified the children expressed a desire to spend as much time with both parents as possible. She also indicated the children had mixed preferences and the youngest child, the six-year-old boy, was the only one who expressly desired to live with his father because he did not like to do the chores his mother required of him. Yet the GAL felt the two youngest children should remain with their mother because they needed the "structure" and "routine" she provided. In her opinion, the middle school and high school aged boys should live with their same gender parent to enhance their "self-esteem."

[¶ 7] The mother and the father did not agree with the split custody recommendation. The record reveals neither the parties nor the GAL presented evidence concerning a psychologist's opinion of how such a split arrangement would impact the children or how it should be structured. At the end of the trial, the court stated, "I'll think about what to do with the children. I think I've got a handle on what the guardian ad litem wants to do. I don't know if I want to do that."

[¶ 8] Three weeks later, on September 17, 1999, the court issued an opinion letter which stated simply and without explanation that custody of the four boys, including the youngest child, was awarded to the father and the mother was awarded custody of the two girls. This result was inconsistent with the evidence presented, the GAL's recommendation, and the parties' positions.

STANDARD OF REVIEW

[¶ 9] In Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998) (some citations omitted), we explained our standard of review in domestic relation matters:

Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. "We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle." Fink [v. Fink], 685 P.2d [34,] 36 [(Wyo.1984)].

We recently clarified the definition of an abuse of discretion when we stated the core of our inquiry must reach "the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). In Vaughn, we confirmed the following definition: "`Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means [exercising] sound judgment . . . with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'" Id. (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)).

[¶ 10] Our review entails evaluating the sufficiency of the evidence to support the trial court's decision, and we afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. We cannot sustain findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored. RDS v. GEMN, 9 P.3d 984, 986 (Wyo.2000).

DISCUSSION

[¶ 11] "The law affords wide discretion to the district court when fashioning custody and visitation provisions for the best interests of the children." Reavis, 955 P.2d at 431. We recognize such discretion encompasses one of the most difficult and demanding tasks assigned to a trial judge. Id. Ultimately, the "goal to be achieved is a reasonable balance of the rights and affections of each of the parents, with paramount consideration being given to the welfare and needs of the children." Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965); see also Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993)

.

A. Section 20-2-113(a)

[¶ 12] The mother contends the custody arrangement chosen by the trial court, wherein each parent was awarded custody of the children of his/her same gender, violated § 20-2-113(a)1 (emphasis added), which provided in pertinent part:

(a) In granting a divorce or annulment of a marriage, the court may make any disposition of the children that appears most expedient and beneficial for the well-being of the children. The court shall consider the relative competency of both parents and no award of custody shall be made solely on the basis of gender of the parent.

Consideration of gender is not prevented in a custody award. The statute simply prohibits gender from being the "sole" basis of a custody...

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