Testerman v. Testerman

• Citation: 193 P.3d 1141,2008 WY 112
• Decision Date: 25 September 2008
• Docket Number: No. S-08-0006.,S-08-0006.
• Parties: Marcella TESTERMAN, Appellant (Defendant), v. Gabriel Lee TESTERMAN, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

193 P.3d 1141

2008 WY 112

Marcella TESTERMAN, Appellant (Defendant), v. Gabriel Lee TESTERMAN, Appellee (Plaintiff).

No. S-08-0006.

Supreme Court of Wyoming.

September 25, 2008.

Representing Appellant: Mary Elizabeth Galvan, Mary Elizabeth Galvan, PC, Laramie, Wyoming.

Representing Appellee: Raymond D. Macchia, Macchia & Associates, LLC, Cheyenne, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] This appeal arises from the divorce proceedings of Marcella Testerman and Gabriel Testerman. The district court awarded primary custody of their ten-month-old daughter to Ms. Testerman, then granted visitation to Mr. Testerman with the aim of having each parent spend approximately equal time with the child. The district court's express purpose in granting this visitation was to prevent Ms. Testerman from moving to California, as she intended to do, so that the child would stay in Cheyenne and develop a relationship with her father. Ms. Testerman has appealed the district court's decision. We will affirm the grant of primary custody to Ms. Testerman, but reverse the district court's decision regarding Mr. Testerman's visitation.

ISSUES

[¶ 2] Ms. Testerman lists five issues for our consideration:

1. Did the district court abuse its discretion when, having found that it was in the child's best interests for her mother to have primary residential custody, it disregarded that finding to implement a parenting time arrangement which is the functional equivalent of joint residential custody?

2. Did the district court abuse its discretion by implementing a parenting plan which conditioned Ms. Testerman's custodial status on her continued residence in Laramie County?

3. Did the district court abuse its discretion in ordering an automatic, anticipatory alternating joint residential custody modification when the child enters the first grade in the absence of evidence or findings that prospectively modifying Ms. Testerman's primary residential custody to joint custody is in the child's best interests?

4. Did the district court abuse its discretion by ordering an automatic future custody modification, without requiring a change of circumstances which affects the child's best interests in her current living arrangement, and without notice and opportunity to be heard?

5. Did the district court abuse its discretion by reaching beyond the record to devise a parenting plan based on an unidentified "Arizona Parenting Plan" in the absence of supporting evidence that such plan was in the best interests of the minor child and without prior notice and opportunity to challenge the applicability of the plan to the custody issues in this case?

FACTS

[¶ 3] The Testermans met in Seoul, South Korea, where both were serving in the military. They married on June 18, 2004. They were later transferred to Fort Knox, Kentucky, and served there until both were honorably discharged. They moved to Cheyenne, Wyoming, where their daughter was born on March 25, 2006. Mr. Testerman was employed by the Wyoming Highway Patrol, and Ms. Testerman worked at home as the child's primary caretaker.

[¶ 4] After the move to Cheyenne, their relationship deteriorated. Ms. Testerman describes their married life as "contentious and bitter, characterized by mutual lack of respect and trust, an inability to communicate, and an almost total inability to agree on any issue involving their child." After a while, Ms. Testerman and her daughter came to occupy only the upstairs of their home, with Mr. Testerman living in the basement. Their interactions were infrequent and acrimonious. While each assigns blame to the other, both agree that Mr. Testerman had little to do with caring for his daughter. When the daughter was approximately six months old, Mr. Testerman commenced divorce proceedings.

[¶ 5] Mr. Testerman sought joint custody of his daughter, which he described as "[e]qual time with the mother and the father." Ms. Testerman sought primary custody of her daughter, and indicated that she intended to relocate to California after the divorce. She had grown up there, and her family, including her mother and two sisters, were willing to help provide care for her child. Ms. Testerman had contacted a former employer in California, and understood that she would be rehired upon her return. She had arranged to stay with her sister until she found her own place to live.

[¶ 6] In oral comments following the trial, the district court expressed disapproval of Ms. Testerman's moving to California because, "[i]n reality that is going to terminate Mr. Testerman's relationship with his daughter." The district court signaled its intent to establish a child custody and visitation arrangement that would effectively require Ms. Testerman to remain in Cheyenne, "a place where you don't want to be." The district court provided this explanation:

The two of you decided to have a baby. With a baby you assume responsibilities. In the assumption of those responsibilities, you gave up options in your lives. You gave up freedom in your lives. In return for the joy you get from her, you give up different things. One of the things you give up is in my mind living apart from each other.... I believe that if [Ms. Testerman and her daughter] live in California that will effectively deprive [the daughter] of the good things that Mr. Testerman can do. I believe that that is not in her best interest.

The district court stated that it would award joint custody of the daughter, and directed the parties to attempt to agree upon a plan that would, at first, allow "brief, frequent opportunities for Mr. Testerman to be with" the child, and then "gradually increase" the "amount of time Mr. Testerman spends with his daughter" so that "within a year" each parent would spend "fairly equal" time with the child.

[¶ 7] The parties were unable to agree, so the district court imposed what it called a "Parenting Plan." In the written divorce decree, it provided that the parents would have joint legal custody, a ruling that neither party disputes. The district court also ruled that it was "in the child's best interests for [Ms. Testerman] to have primary residential custody of the child." Then, with regard to Mr. Testerman's visitation, the district court ruled as follows:

c. Beginning Monday, February 12, 2007, [Mr. Testerman] shall have parenting time with the minor child from 5:00 p.m. through 8:00 p.m. on Mondays, Wednesdays, Fridays and Saturdays. In addition, on one of the days when he is off work, he will have parenting time between noon and 8:00 p.m. one day per week.

d. When the minor child reaches the age of three, the parenting time referred to in section c immediately above will be increased so that the time between noon and 8:00 p.m. one day per week will be changed to an overnight visit from 5:00 p.m. one day to 6:00 p.m. the next day on a weekly basis. This time will be on one of his days off which the court understands rotate periodically. This schedule will continue until the minor child begins the first grade.

e. When the minor child begins the first grade the parents will share the minor child every four days, including overnights, so for example, [Mr. Testerman] would have the minor child from 5:00 p.m. on a Monday evening and keep her until he takes her to school Friday morning. [Ms. Testerman] would have the minor child from after school on Friday until Tuesday morning when school starts, and then [Mr. Testerman] would have the minor child after school Tuesday until Saturday morning at 9:00 a.m. and so forth until the minor child reaches the age of 9 at which time the parents will simply alternate the child on a week-to-week basis.

f. When the minor child reaches the age of 3, [Mr. Testerman] may have one two week period of extended visitation each year and shall provide 30 days notice to [Ms. Testerman].

g. [Ms. Testerman] shall be allowed two one week visits or one two week visit, the length of the visit to be at her choice each year so that she may visit her family in California or any other location. She will provide [Mr. Testerman] with 30 days notice of such plans.

To further discourage Ms. Testerman from moving to California, the district court included this provision in the divorce decree:

l. If either parent desires to move from Laramie County he or she shall give the remaining parent 60 days notice. The notice to leave Laramie County may be considered by the Court as a change of circumstances sufficient to give the Court jurisdiction to consider a custody modification.

Ms. Testerman has appealed the district court's rulings.

STANDARD OF REVIEW

[¶ 8] Child custody decisions are within the sound discretion of the trial court. Eickbush v. Eickbush, 2007 WY 179, ¶ 9, 171 P.3d 509, 511 (Wyo.2007).

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.

Resor v. Resor, 987 P.2d 146, 148 (Wyo.1999), quoting Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998).

DISCUSSION

[¶ 9] In the divorce decree, the district court stated that it was in the best interests of the child for Ms. Testerman to have primary custody. In making that decision, the district court appropriately considered the factors set forth in Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2007), and its determination is well supported by evidence in the record. Ms. Testerman was the child's primary caretaker, and the evidence demonstrated that she was a good mother. Although the parties disagreed as to the underlying reasons, Mr. Testerman had very little responsibility for or experience with caring for his daughter. There was also evidence of what the...