Triggs v. Triggs

• Decision Date: 28 June 1996
• Docket Number: No. 95-195,95-195
• Parties: Ronald Eldon TRIGGS, Appellant (Defendant), v. Carole Kincaid TRIGGS, n/k/a Carole Anderson-Kincaid, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 653

920 P.2d 653

Ronald Eldon TRIGGS, Appellant (Defendant), v. Carole Kincaid TRIGGS, n/k/a Carole Anderson-Kincaid, Appellee (Plaintiff).

No. 95-195.

Supreme Court of Wyoming.

June 28, 1996.

Georg Jensen, Cheyenne, for Appellant.

Carole Anderson-Kincaid, Cheyenne, pro se.

Rhonda Sigrist Woodard, Burke, Woodard & Bishop, P.C., Cheyenne, Guardian ad Litem.

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

THOMAS, Justice.

The primary issue in this appeal by Ronald Eldon Triggs (husband) is a claim that the district court erred in awarding custody of the minor daughters of the parties to Carole Kincaid Triggs (wife). Additional claims of error are asserted relating to distribution of the marital property of the parties and calculation of child support. The wife contends this court should certify there was no reasonable cause for the appeal and award her costs, damages, and reasonable attorney fees in connection with the appeal. The husband's contentions all depend upon establishing an abuse of discretion by the trial court. We hold the record in this case does not demonstrate an abuse of discretion with respect to any of the claims of error, but we are unable to certify there was no reasonable cause for the appeal. The Supplemental Decree of Divorce entered in the trial court is affirmed in all respects.

In his Appellant's Brief, the husband states the issues on appeal as:

1. Did the court err in awarding custody of the parties' minor daughters to the appellee (plaintiff below)?

2. Did the court err in the equitable distribution of property?

3. Did the court err in the calculation of child support under W.S. § 20-6-304?

In her Brief of Appellee, the wife, while generally accepting the above statement of the issues, additionally sets out a fourth issue as:

IV. Should the Court certify that there was no reasonable cause for this appeal, that it was without merit, and find it was filed only to harass Appellee, delay resolution of the case, and add to the costs of the litigation?

The guardian ad litem submitted a brief addressing the single question of custody because the husband has disagreed with the recommendations made by the guardian ad litem.

The wife commenced this divorce action on November 30, 1993, after almost seventeen years of marriage. In addition to seeking a divorce, she requested temporary and permanent custody of the three minor children of the marriage, one son and two daughters. In his answer and counterclaim, the husband requested custody of the children, and he asserted the wife "is an unfit custodian of the minor children in that she has been emotionally, verbally and physically abusive towards all three children." Pursuant to a decision letter filed December 22, 1993, the trial court awarded the wife, during the pendency of the case, temporary custody of the children, temporary use of the marital home, and family support of $2,000 per month and set up a visitation schedule for the husband.

The participation of the parties in this litigation was vigorous, and numerous pleadings, with supporting documentation, were filed by both the husband and the wife. In February 1994, the court appointed the guardian ad litem to represent the interests of the children in this dispute. At that time, temporary custody of the minor son was placed with the husband because the boy preferred to be with his father and was having difficulty with his mother. Following another exchange of motions and a hearing to consider them collectively, the trial court ordered visitation be suspended, unless requested by the children; counsel for the parties were not to communicate with the children without prior approval from the guardian ad litem; the parties were ordered to refrain from attempting to influence the position of the children with respect to custody and visitation; and the court concluded to appoint a custody evaluator after receiving advice from the guardian ad litem. In April, two experts on custody and visitation issues were appointed by the court.

On April 5, 1994, an absolute divorce was granted to the wife, with the court reserving decision on custody, child support, and property issues for a later determination. The parties continued to dispute their respective compliance with the orders of the court, and the trial was continued until November 7, 8, and 9, 1994 because the custody evaluations would not be finished until sometime in mid-September. Additional pleadings included pretrial memoranda and financial affidavits by both the husband and the wife. After the trial was held in November, closing statements were submitted in writing to the court. The court prepared a detailed decision letter which was sent to the attorneys for the parties and the guardian ad litem on December 13, 1994. The letter settled child custody, determined the income for each of the parties, computed the share for each party of presumed child support, settled health insurance obligations, made a division of the marital property and indebtedness of the parties, and awarded alimony to the wife.

Even though the decision letter had been entered, voluminous pleadings continued to be filed with the court. On March 22, 1995, the Supplemental Decree of Divorce, consistent with the decision letter and incorporating it by reference, was filed. The wife retained custody of the two daughters, and the husband continued to have custody of the son. The court required the parties to pursue counseling in an effort to have them accept responsibility for, and hopefully to relieve, the alienation each of the children felt toward the noncustodial parent. The court required the children to continue with counseling sessions, dividing costs between the parties. The order provided visitation between the noncustodial parent and the children was to begin only when the children's counselor believed the visits would be beneficial, rather than detrimental. The children were granted unrestricted access to each other at any time.

With respect to child support, the husband was ordered to pay $574 per month based upon the split custody and the amounts set forth in the presumed child support guidelines. The payments were to continue until each child reached the age of majority. The husband was to continue health and medical insurance coverage for the children, and the decree provided any medical expenses not covered by insurance would be divided between the parties equally. The court ruled the wife should generate some income, but awarded her $1,200 monthly alimony from the husband for a period of eight years. Each of the parties was required to submit yearly financial affidavits by April 15, and the husband was granted the federal income tax dependent deductions for all of the children for 1994, 1995, and all future years, subject to a change in the wife's income.

The marital home was awarded to the wife, subject to the mortgage, and the husband's law practice was awarded to him. The decree provided the wife should receive 40% of the husband's military retirement, and the husband's three retirement-type accounts were impressed with a trust to fund college educations for the children. The decree provided any life insurance coverage on either party was to be irrevocably designated for the benefit of the children. The wife was required to pay the appearance fee of the court reporter at the trial, and the husband was required to pay remaining fees for the guardian ad litem and the custody evaluators. The remainder of the personal property was divided between the parties.

The husband filed a Notice of Appeal on April 20, 1995. He contends there is error in the decree with respect to determination of custody, amount of child support, and distribution of property.

Our rule is that the determination of the trial court with respect to custody and visitation, the trial court's calculation of income for purposes of child support, and the trial court's division of the marital property, together with its allocation of attorney fees and costs, will not be overturned on appeal unless the record demonstrates a clear abuse of discretion. Dowdy v. Dowdy, 864 P.2d 439 (Wyo.1993); Love v. Love, 851 P.2d 1283 (Wyo.1993); Goff v. Goff, 844 P.2d 1087 (Wyo.1993); Marquiss v. Marquiss, 837 P.2d 25 (Wyo.1992). Reasonable conclusions of the trial court based upon the evidence are not to be disturbed on appeal, and reversal is mandated only when the judgment of the trial court exceeds the bounds of reason or constitutes an error of law under the circumstances. Combs v. Sherry-Combs, 865 P.2d 50 (Wyo.1993). Upon review, we evaluate the sufficiency of the evidence to support the trial court's decision by affording to the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Cranston v. Cranston, 879 P.2d 345 (Wyo.1994).

We deal initially with the claim of error concerning child custody because that seems to have been a major point of contention between the parties. As we have noted, the trial court's determination of custody and visitation issues is subject to an abuse of discretion standard. We have said abuse of discretion is present "when a material factor deserving significant weight is ignored." Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo.1993). The husband, on appeal, continues to assert the wife abused the three children, both physically and mentally, and he argues the custody evaluators and the guardian ad litem were derelict in failing to develop evidence of that abuse. In connection with custody of children, abuse is a material factor deserving significant weight, and a disclosure by the record of abuse by the wife could lead to the conclusion that the trial court abused its discretion in awarding her custody of the two minor daughters. Clearly, an award of custody to an abusive parent is not to be considered in the best interests of the children. Fanning v. Fanning, ...