Russell v. Russell

• Decision Date: 05 December 1997
• Docket Number: No. 97-2,97-2
• Citation: 948 P.2d 1351
• Parties: Sharon Lee RUSSELL, Appellant (Defendant), v. Richard L. RUSSELL, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1351

948 P.2d 1351

Sharon Lee RUSSELL, Appellant (Defendant), v. Richard L. RUSSELL, Appellee (Plaintiff).

No. 97-2.

Supreme Court of Wyoming.

Dec. 5, 1997.

James A. Eddington, Torrington, for Appellant.

Donald E. Miller of Graves, Miller & Kingston, P.C., Cheyenne, for Appellee.

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

MACY, Justice.

Appellant Sharon Russell (the mother) appeals from the order which modified the custody of the parties' minor children in favor of Appellee Richard Russell (the father).

We affirm.

ISSUES

The mother presents three issues for our review:

1. Does interference with visitation constitute a material change of circumstances that is sufficient to support a change of custody under the circumstances of this case?

2. Did the trial court abuse its discretion by determining that custody should be changed without receiving evidence regarding the best interests of the children?

3. Did the trial court abuse its discretion by ordering [the mother] to pay attorney fees and Guardian Ad Litem fees that were not a result of the trial on the [father's] Petition to Modify and were offered without any evidence of reasonableness?

FACTS

The trial court granted the mother and the father a divorce on January 13, 1995. It awarded primary custody of the two minor children to the mother, giving the father standard visitation rights. On August 8, 1995, the father asked the trial court to order the mother to show cause why she should not be held in contempt of court and moved for temporary custody, alleging that the mother had taken the children from his home during his summer visitation and had not permitted him to have contact with them since that time. The father amended his petition on August 16, 1995, asking that custody be changed to him. The trial court appointed a guardian ad litem for the children. Several hearings were scheduled and then continued at the mother's request. Ultimately, the mother requested that the hearing which had been set for June 18, 1996, be continued. The father objected, arguing that he was planning to take the children to Disneyland in June. He also requested that, if the trial court granted the continuance, he be given immediate custody of the children pending the final order on the petition to change custody. The trial court held a hearing and issued a temporary order on June 10, 1996, which modified the father's visitation rights. The trial court found that the father had "been denied regular scheduled visitation during the prior nine months and it [was] in the best interest of the children that [the father's] visitation continue during the pendency of this matter."

The mother refused to obey the temporary order. On June 12, 1996, the father again asked the trial court to order the mother to show cause why she should not be held in contempt of court. The trial court held a hearing and granted temporary custody to the father pending the outcome of the petition for a change of custody. When the mother refused to obey this order, the father filed a third petition for an order to show cause in an attempt to enforce the temporary custody order. The trial court held another hearing and issued a temporary order which gave the father custody of the children and the mother standard visitation rights. It ordered the mother to have the children ready to go with their father at six o'clock in the evening on the following Sunday.

A trial was held on October 8, 1996. At the end of the father's case in chief, the trial court stated that the evidence proved

far beyond the preponderance, that even if you set aside specific dates on which there is conflicting testimony concerning visitation that was denied, the extent in which [the mother] actively or only passively denied it, the efforts that [the father] did or didn't make to attain his visitation, even if you set that all aside, I think it's clear there's been amply demonstrated a repeated, substantial, and willful interference by [the mother] with [the father's] parental rights with respect to [the son] and [the daughter]. It's just a tragic situation. It is my view that there has been more than demonstrated here a substantial change in material circumstance.

The trial court pondered whether, given the evidence which had been introduced that far, it would be in the children's best interest to change custody. The trial court stated: "Tremendously important and overriding all of this is the proposition that children and parents are reciprocally entitled to a parent-child relationship that is not hindered[ or] interfered with." It noted that this factor related directly to whether or not a change of custody was in the children's best interest.

The mother declined the opportunity to present evidence, and the trial court took the case under advisement. Relying upon Henson v. Henson, 384 P.2d 721, 723 (Wyo.1963), for the proposition that changing custody "sometimes must be used to enforce, not only the right of the other parent to association with the child, but also to enforce the right of the child to association with both of the parents," the trial court modified the divorce decree. It awarded primary custody of the children to the father and gave the mother visitation rights. It also found that the father was the aggrieved party and that he was experiencing difficult financial circumstances due, at least in part, to the litigation costs and ordered the mother to pay one-half of the guardian ad litem fees and one-half of the father's legal fees. The mother appeals to this Court.

DISCUSSION

A. Change of Custody

The mother contends that interference with visitation does not constitute a material change of circumstances sufficient to support a change of custody. She also claims that the trial court failed to take the children's best interest into consideration in deciding to give the father primary custody.

We use an abuse of discretion standard when we review a trial court's decision to modify child custody arrangements. Ready v. Ready, 906 P.2d 382, 384 (Wyo.1995). In determining whether the trial court abused its discretion, we examine the record to see whether the trial court could have reasonably concluded from the evidence that such a material or substantial change in circumstances occurred. 906 P.2d at 384-85; DJG v. MAP, 883 P.2d 946, 947 (Wyo.1994). The party who is seeking a modification of the child custody provisions of a divorce decree has the burden of showing that a change in circumstances which affects the child's welfare occurred after the initial decree was entered, that the change warrants a modification of the decree, and that the modification will be in the child's best interest. Ready, 906 P.2d at 384.

Pursuant to the trial court's standard visitation order which was attached to the divorce decree, the father's visitation schedule included each weekend in which Friday was an even-numbered date, his birthday, Father's Day, the children's birthdays in even-numbered years, alternating holidays, and a minimum of two months during each summer. When the children were with their father during the summers, the mother had visitation rights on each weekend in which Friday was an odd-numbered date.

Although the parties gave conflicting testimony with regard to whether the father was denied his visitation rights, the record reveals that the father was not able to exercise his rights because the mother denied them or otherwise interfered with them. An example of this interference is the incident which occurred while the children were visiting their father in the summer of 1995. The mother appeared at his home on the morning of Thursday, July 20th, and took the children without the father's knowledge or permission while he was at work. The father testified that he and the mother had previously agreed that the children would go with their mother after they attended their grandfather's birthday party in the evening of July 20th. The interference continued when the mother failed to return the children to the father at six o'clock in the evening on Sunday, July 23, 1995, pursuant to the standard visitation order. The father testified that he made numerous attempts to retrieve the children from the mother in order to complete his summer visitation but that each attempt was unsuccessful.

The father did not have a visitation with the children from July 20th until they visited him on September 8, 1995. After this visit, the father had erratic visitations with only his son until June 14, 1996, when he was allowed to have a visitation with both children.

During the father's visitation, the mother left recorded telephone messages for the children in which she made derogatory comments about the father. Furthermore, the son's school teachers testified that the mother severely restricted their ability to communicate with the father about his children and limited the father's involvement with the children. In its October 10, 1996, decision letter, the trial court observed:

Separate from the interference with visitation, there has been a continuing, seemingly purposeful undermining of the relationship between the father and the children. This is exemplified by statements to the children denigrating the father and his wife; that he is a hustler after "the buck," does not care about the children, that he is an adulterer or sinner, that his wife is immoral and a killer of her former husband.

The trial court further found the following acts by the mother to be inappropriate: ordering school teachers not to divulge information to the father; alleging that the father was capable of kidnapping the children; asserting that the father abandoned the mother and the children; accusing the father of being a dangerous person; and intercepting school papers which were meant for the father while he had custody. The trial court then concluded:

All of this appears to be intended to prevent the father from having...