Resor v. Resor

• Decision Date: 12 August 1999
• Docket Number: No. 98-158.,98-158.
• Citation: 987 P.2d 146
• Parties: John Lawler RESOR, Appellant (Defendant), v. Sarah Phelps RESOR, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

987 P.2d 146

John Lawler RESOR, Appellant (Defendant), v. Sarah Phelps RESOR, Appellee (Plaintiff).

No. 98-158.

Supreme Court of Wyoming.

August 12, 1999.

Representing Appellant: Kim D. Cannon and Kathleen G. Healy of Davis & Cannon, Sheridan, Wyoming. Argument by Mr. Cannon.

Representing Appellee: Weston W. Reeves of Reeves & Miller, Casper, Wyoming.

Guardian Ad Litem Katherine L. Mead of Mead & Mead, Jackson, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,¹ JJ.

GOLDEN, Justice.

John Lawler Resor (Father) appeals from the district court's order establishing primary physical custody of their children with Sarah Phelps Resor (Mother). After examining the record, we find the district court considered all of the evidence before it and properly used its discretionary power when it determined it was in the best interest of the children to be in Mother's physical custody with liberal visitation privileges to Father. Contrary to Father's assertions, the decision was not based on gender, and the district court clearly considered and provided for Mother's relocation to Seattle, Washington, when making its custody decision.

ISSUES

Father presents the following statement of the issues:

I. Did the trial court err in making a custody determination based on a stereotypical assignment of the "primary caregiver" label, instead of an articulation of the "best interests" of the children?

II. Did the trial court fail to exercise its discretion by automatically allowing relocation of the children to Seattle without determining whether relocation would be in the children's "best interests"?

III. Did the trial court fail to apply an appropriate two-step analysis to determine whether the move was in the children's "best interests" and whether there were sufficient reasons for the move?

Mother submits this statement of issues:

I. Whether the trial court abused its discretion in determining that it was in the best interest of the parties' two minor children to place primary custody in their mother, the appellee, subject to extensive visitation rights for the father.

II. Whether the trial court abused its discretion in refusing to give primary custody to the father because of the mother's intention to move out of Jackson, Wyoming.

The Guardian Ad Litem submitted a brief as well, presenting the following issue statement:

Did the trial court abuse its discretion when it permitted relocation of the minor children without first determining whether the relocation was in the children's best interests[?]

FACTS

The parties were married on August 12, 1989, in Teton County, Wyoming. Two children were born of the marriage. The first child was born on January 1, 1992, and the second was born July 15, 1995. The children resided with their parents in Teton County, Wyoming, since their birth. On September 16, 1996, Mother filed a complaint asking for a divorce, joint legal custody and primary physical custody with Mother, child support, maintenance, attorney's fees, and equitable distribution of the parties' debts and assets. Father's answer concerning custody requested primary physical custody of the children or joint custody of the children with Father exercising primary physical custody, subject to reasonable visitation by Mother.

On January 28, 1997, the district court entered an order appointing a guardian ad litem to represent the best interests of the children. On January 30, 1997, the district court entered an order concerning temporary custody which provided for shared custody as follows:

The parties shall share equally in the custody of the minor children during the pendency of this action. Custody shall be alternated on a weekly basis commencing Friday nights at 6:00 p.m. [Father's] first week of custody shall commence Friday, January 31, 1997 at 6:00 p.m.

At the time of the temporary order, the trial was scheduled for June 2, 1997. However, the trial was delayed until December 17, 1997, leaving the temporary custody order in place for nearly one year, rather than four months. The parties conducted discovery, designated experts to testify about the custody issue, and presented evidence to the district court in a three-day trial. The district court ruled from the bench on December 19, 1997, then filed a decree of divorce on February 25, 1998. The district court awarded joint legal custody to both parents, but primary physical custody to Mother with liberal visitation to Father. Father filed this timely appeal.

STANDARD OF REVIEW

Our standard of review in domestic relation matters was succinctly stated in Reavis v. Reavis, 955 P.2d 428 (Wyo.1998):

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.

A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored.

Id. at 431 (citations omitted).

DISCUSSION

Appellant argues the district court failed to make factual findings to support its decision and that failure requires reversal of the trial court, or alternatively, "a remand to make findings under Reavis . . . ." We reversed in Reavis because there was no evidence to support the court's decision, not because it did not make findings of fact. Reavis, 955 P.2d at 434. In Reavis, we suggested that the trial court spell out its reasons so that counsel and the reviewing court will know what those reasons are, and be in a position to evaluate the soundness of its decision. Id. at 431-32. We continue to encourage a trial court relying on discretionary power to place on record the circumstances and factors that were crucial to its determination. However, it is not required to do so.

Additionally, our rules do not require the trial court to issue findings of fact "unless one of the parties requests it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial." W.R.C.P. 52(a). The district court's scheduling order informed the parties "[r]equests for findings of fact or conclusions of law shall be filed along with the pretrial memoranda." Neither party made such a request and, as such, Father will not be heard to complain of the absence of formal findings. In any event, the district court made the following announcement from the bench:

The factors that I considered as far as the custody of [the children]—and I'm certain we'll all agree as we're sitting here that really the most important matter before the Court for these last three days was the custody of those two little boys.

I took into consideration the interaction and the relationship of those two little boys with their parents, with their grandparents and also others, who, through the testimony, it became quite obvious to the Court that there were others who significantly affected [the children].

Also, the children's adjustment to their home, school and community; the mental and physical health of both Mr. and Mrs. Resor; also the stability of both parents; and the report, as I said, of the guardian ad litem.

* * *

Also one of the—especially with children of this age, a very important factor—and I'm not saying the most important factor— but for the Court to consider is who the primary care-giver has been.

I saw—and I advised counsel of this in chambers this afternoon, Mr. and Mrs. Resor—I saw two very loving, fit, capable and caring parents. And in that regard, [the children] are most fortunate.

Of course, ideally, they should be living with you as a family. But you can't live together as husband and wife, and so that's the reason obviously that we've been here, that we are here.

I considered Mrs. Mead's report, or recommendation, Dr. Hickman, Dr. Enright, and I cannot imagine that this temporary custody of one week with the mother and one week with the father has been very good for these two small boys, even though there was testimony that it really had not been that devastating.

I also can't put myself in the shoes of Judge Rogers, but I have a feeling that if he would have known that that temporary order for custody would go on for—I think it's been eleven months—that he probably wouldn't have entered such an order. I have not talked to Judge Rogers about it, so I—that's just—I just can't imagine. I guess I can't imagine ordering that for eleven months with these two small boys.

I do not know that I've seen—and I mean this, Mr. Resor—a more devoted, loving father, and a hands-on father, as I've seen, as you testified, and also as Dr. Enright testified, as well as many other witnesses. Also the family support that those young boys have in this community is most impressive. And like I say, they're just two lucky little boys.

I also observed, Mrs. Resor, and as I told counsel, I feel she's a very devoted, loving, conscientious, committed mother. And she's also most fortunate to have the love and support of an extended—of a large family.

I am going to award—I'm going to—it's going to be what I consider joint legal custody, but with primary physical custody to Mrs. Resor.

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