Pinther v. Pinther
| Decision Date | 13 January 1995 |
| Docket Number | No. 93-258,93-258 |
| Citation | 888 P.2d 1250 |
| Parties | Ronald Elliot PINTHER, Appellant (Defendant), v. Marcia Elaine PINTHER, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Karen A. Byrne, Cheyenne, for appellant.
Rocklon L. Edmonds, Cheyenne, for appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant Ronald Elliot Pinther (the father) appeals from the district court's order which denied his petition to modify the custody provision in the parties' divorce decree and left custody of the parties' minor daughter with Appellee Marcia Elaine Pinther (the mother), modified his visitation rights, and increased the amount of his child support payments and from the district court's order which denied his motion for reconsideration.
We affirm.
The father states three issues:
1. Whether the district court abused its discretion in determining that [the mother] should have custody of the minor child?
2. Whether the district court committed reversible error by allowing [the father's] present wife to testify against him in violation of the spousal privilege?
3. Whether the district court abused its discretion in determining that a substantial change of circumstances justified raising the support obligation?
The parties divorced in November 1987. The divorce decree granted custody of the parties' daughter to the mother, subject to specified visitation rights in the father. The divorce decree also ordered the father to pay child support in the amount of $220 per month, which amount was to increase automatically in October 1992 to $245 per month.
On October 9, 1992, the father filed a motion to modify the divorce decree in which he prayed for full custody of his daughter and for an order which would require the mother to pay child support on the basis of the child support guidelines. On October 21, 1992, the mother filed a petition to modify the divorce decree in which she requested that the amount of the father's child support payments be increased. After holding a hearing on the parties' motions, the district court issued an order which allowed the mother to retain custody of the parties' daughter, modified the father's visitation rights, and increased the amount of the father's child support payments to the presumed amount pursuant to the child support guidelines.
The father filed a motion for reconsideration in which he claimed, in part, that the district court had violated Wyoming law by failing to consider his other children when it
made its child support calculation. The district court denied the father's motion for reconsideration, and the father appealed to this Court.
The father contends that the district court abused its discretion by refusing to award custody of the parties' daughter to him.
Uhls v. Uhls, 794 P.2d 894, 896 (Wyo.1990).
The best interests of the children is the primary consideration when parental custody matters are being determined. Fanning v. Fanning, 717 P.2d 346, 352 (Wyo.1986). "[T]he '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.' " Love v. Love, 851 P.2d 1283, 1287 (Wyo.1993) (quoting Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965)).
Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993).
After the divorce, the father married Carol Wolfe (the current wife). The mother and her daughter later moved from Cheyenne to live near Burns with the mother's boyfriend, and the daughter began attending elementary school in Cheyenne.
The parties presented extensive evidence to the district court. 1 Notably, the father attributed his daughter's reading abilities and, in part, her success in school to her mother's encouragement. The father also testified that he suffered from "posttraumatic stress syndrome" which had caused him to have outbursts of anger, that he and his current wife had pushed and shoved each other in the past, and that he used moderate amounts of alcohol. The father's seventeen-year-old son also testified that the father had been violent with him and that the father and his current wife had disagreements which involved yelling at, hitting, and slapping each other in the presence of the daughter.
The district court's decision letter stated:
I find that there have been no material changes in circumstances which justify a change in custody. Each party has [exercised], and likely will continue[ ] to exercise[,] poor judgment, especially in regard to relationships. Considering the many stormy, occasionally violent relationships of [the father], I cannot say it would be in the best interest of [the parties' daughter] to change custody. Custody shall remain with [the mother].
The district court did not exceed the bounds of reason under the circumstances of this case; therefore, we conclude that the district court did not abuse its discretion.
The father asserts that the district court abused its discretion by modifying his visitation rights and by refusing to enforce the parties' informal visitation arrangement.
The definition of rights of visitation is an aspect of the determination of custody, and it has been our consistent principle that in custody matters the welfare and needs of the children are to be given paramount consideration. The decision of the trial court with respect to such matters will not be disturbed by this court unless we can identify a clear abuse of discretion.
Rowan v. Rowan, 786 P.2d 886, 890 (Wyo.1990) (citations omitted).
The original divorce decree granted the father visitation rights during the first weekend of each month, the third week of each month, and part of the summer; on some holidays; and, until his daughter started attending school, for two weeks between September 1 and December 15 and an additional two weeks between January 5 and June 1. After the divorce, however, the parties informally agreed that each parent would keep the daughter every other week. The parties' informal visitation arrangement was not binding upon the district court. "[T]he parties to a divorce may not modify a divorce decree without submitting those modifications to the district court for its consideration and approval." Richardson v. Richardson, 868 P.2d 259, 262 (Wyo.1994).
The daughter's elementary school was located near the father's house in Cheyenne and was located approximately twelve miles from the mother's home. The mother testified that she wanted to send her daughter to the school in Burns so that her daughter would be attending school closer to the mother's home. The mother requested that the father be granted visitation rights for every other weekend and during the summer.
The district court's decision letter stated:
I ... find that there has been a change in circumstances which warrants a modification of visitation. [The parties' daughter] is now in school (she was not at the time of the divorce) and has moved with her mother to Burns, Wyoming. The practice of changing the child's residence during the third week of each month conflicts with stability and continuity in the child's educational development, and is not logistically practical now that the child is in school and lives in another town. Visitation is modified to coincide with the standard visitation schedule I have attached.
The standard visitation schedule granted the father visitation rights for alternate holidays, alternate weekends, and two months during the summer, and it eliminated the father's visitation rights for the third week of each month and for the two additional weeks at both the end of the year and the beginning of the year.
The district court's modified visitation schedule was designed to serve the best interests of the parties' daughter by ensuring her educational development. The district court did not abuse its discretion by modifying the father's visitation rights.
The father claims that the district court abused its discretion by determining that a substantial change of circumstances had occurred which justified raising the amount of his child support payments pursuant to the child support guidelines.
The district court retains continuing jurisdiction to modify a divorce decree concerning matters of "care, custody, visitation and maintenance of the children as the circumstances of the parents and the benefit of the children require[ ]." WYO.STAT. § 20-2-113(a) (Supp.1992). 2 See also Nicholaus v. Nicholaus, 756 P.2d 1338, 1340 (Wyo.1988). Any party may petition for a review of any child support order by alleging that the application of the child support guidelines would result in a twenty percent or more change in the monthly support amount or that any other substantial change of circumstances had occurred. WYO.STAT. § 20-6-306(a) (Supp.1992). 3 See also Cranston v. Cranston, 879 P.2d 345, 348 (Wyo.1994).
Smith v. Smith, 863 P.2d 624, 625 (Wyo.1993) (citation omitted). Abuse of discretion is defined as follows:
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