Semler v. Semler, 95-276
| Decision Date | 09 October 1996 |
| Docket Number | No. 95-276,95-276 |
| Citation | 924 P.2d 422 |
| Parties | Elizabeth Lee SEMLER, n/k/a Elizabeth Lee Christofferson, Appellant (Defendant), v. James Dale SEMLER, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Robert A. Hampe *, Cheyenne, for appellant.
Robert W. Connor, Jr., and Debra J. Wendtland, Sheridan, for appellee.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.
Elizabeth Lee Christofferson, the mother, appeals the district court's decision denying her petition for change of custody based on her allegations of sexual abuse perpetrated against her two children by their custodial father and step-mother. We affirm.
The parties, Elizabeth Lee Christofferson (mother) and James Dale Semler (father), present only one issue:
Whether the trial court abused its discretion in finding the allegations of sexual abuse were without merit?
The parties were divorced in July of 1989, settling all issues except child custody and support. On October 5, 1989, an order was entered awarding the father with primary custody of the parties' two children, a son and a daughter. The daughter was born in 1985; the son was born in 1987. In 1993, the district court heard the mother's allegations that the father was physically abusing the children. The court found that the risk to the children was minimal and that the mother failed to show a substantial change of circumstances. The father continued to have primary custody of the children.
During the scheduled summer visitation with the mother in 1994, the mother petitioned the district court to award her primary custody of the children, based on allegations that the father and his wife were sexually abusing the children. After six days of testimony, the district court issued a very detailed decision letter. Later, the district court entered an order denying the mother's petition, incorporating the findings and conclusions from its decision letter. In its order, the district court found that the children reported same-sex showers with the father and the step-mother, the father had "soaped up" the daughter and touched her vaginal area, and both children reported that the father toweled off the children after bathing, including the son's penis and the daughter's vaginal area.
The district court then proceeded to provide a detailed summary of the testimony from the witnesses. The testimony included opinions that some of the activities reported by the children constituted sexual abuse, the children suffered from low self-esteem and severe post traumatic stress disorder and statements from the mother and her husband. The court also summarized testimony of opinions that previous penetration of the daughter was "doubtful," that the evidence was not sufficient to show sexual abuse and the allegations were not legitimate, and evidence which questioned the credibility of the mother's experts.
Based on the testimony it heard and its findings of fact, the district court concluded that the allegations of sexual abuse were without merit and the mother did not prove a substantial change of circumstances which would justify modification of child custody. This appeal followed.
"This court has always recognized that the trial court exercises a broad discretion in the execution of its revisory powers in matters involving domestic relations." Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990) (citing Ayling v. Ayling, 661 P.2d 1054, 1056 (Wyo.1983); Henson v. Henson, 384 P.2d 721, 723 (Wyo.1963)). We will not interfere with the trial court's decision absent a procedural error or a clear abuse of discretion. Gaines, 794 P.2d at 570. The party seeking modification of a divorce decree's child custody provisions must prove that a material and substantial change in circumstances warranting modification of the decree has occurred, after the entry of the initial decree, and that modification is in the best interest of the children. Ready v. Ready, 906 P.2d 382, 384-85 (Wyo.1995) (quoting DJG v. MAP, 883 P.2d 946, 947 (Wyo.1994)). On review, we examine the record to determine whether the trial court could reasonably conclude as it did. Ready, 906...
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