Yates v. Yates

• Decision Date: 01 July 1985
• Docket Number: No. 84-226,84-226
• Citation: 702 P.2d 1252
• Parties: Annette R. YATES, Appellant (Defendant), v. Charles J. YATES, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1252

702 P.2d 1252

Annette R. YATES, Appellant (Defendant), v. Charles J. YATES, Appellee (Plaintiff).

No. 84-226.

Supreme Court of Wyoming.

July 1, 1985.

William J. Flynn, Green River, for appellant.

Jere Ryckman, Green River, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

BROWN, Justice.

This is an appeal from an "Order Modifying Decree of Divorce." The order changed child custody and clarified and modified the original decree of divorce regarding alimony. According to appellant the issues are:

I

"Did the Trial Court deny the Appellant's right to due process when it decided the issue of her daughter's custody without giving the Appellant an opportunity to present relevant testimony regarding that issue?

II

"Did the Trial Court abuse its discretion when it changed the custody of Amy Yates?

III

"Did the Trial Court commit error when it modified those provisions of the original Decree of Divorce and the parties' property settlement regarding periodic monthly payments to the Appellant?"

We will affirm.

The parties here were divorced in December, 1980. The divorce decree awarded appellant custody of the parties' three minor daughters, and awarded appellee visiting privileges. Appellant was awarded alimony in eighty monthly installments. The divorce decree recited that the parties had stipulated regarding a property settlement. The court approved such settlement.

After the divorce the parties had a multitude of problems regarding visitation rights. A phenomenon rarely seen by a trial judge, if ever, is a post-divorce squabble where all the equities are on one side. This case is no exception.

In February, 1983, appellee filed a petition to modify the divorce decree with respect to alimony and visitation. An amended petition to include changing the custody of Amy Yates was filed July 14, 1983, during the time Amy was visiting her father. On August 23, 1983, the district court entered an ex parte order granting temporary custody of Amy Yates to appellee. A trial to the court on appellee's amended petition was had on June 21 and 22, 1984. The court entered an order on July 24, 1984, awarding custody of Amy Yates to appellee, and modifying the alimony provisions of the divorce decree.

I

The appellant complains on appeal, "The announcement of the judge's decision before the appellant had rested her case injected serious procedural error of constitutional dimensions into the case." The contention by appellant that the judge decided the case before she rested seems to be an afterthought, and perhaps did not occur to appellant until she filed her brief.

True, appellant never recited the magic words, "Defendant rests"; however, it appears that everyone understood that all the testimony from both sides had been produced and all exhibits received in evidence before the judge talked to the minor children. In any event, appellant never indicated to the trial judge that she had any additional evidence to produce, nor has she told this court what additional evidence she wanted to produce. Appellant further complains that the judge told the minor children that he was going to let Amy stay with her father before he had finished his talk with the children.

At the June 21-22, 1984, trial, appellee called several witnesses to testify in support of his petition to modify the divorce decree. One of his witnesses was Amy Yates, who was cross-examined by appellant's attorney. Appellant called two expert witnesses and also testified on her own behalf. After the recross-examination of appellant, both appellant and appellee told the court that they had nothing further. The court then asked appellant a few questions. After this colloquy the record reveals the following:

"THE COURT: Does counsel have anything further?

"MR. RYCKMAN: No, Your Honor.

"MR. FLYNN: No, Your Honor.

"THE COURT: All right. I want to see those children. And I'd like to see counsel in chambers and we'll arrange a time. We stand adjourned. [Whereupon, court was adjourned at 5:30 p.m., Thursday, June 21, 1984 * * *.]"

The following afternoon, the judge talked to the three minor daughters of the parties in chambers. Only the judge, the three daughters, and the court reporter were present. During this in-chambers discussion with the children, the judge said that he was going to let Amy stay with her father.

It should not come as a great surprise to counsel that sometimes a trial judge decides the outcome of a case before the last word of testimony goes into the record. It would be somewhat unusual, however, for the judge to reveal his decision before all the testimony is in the record. In the context of the trial judge's interview with the three minor children, an early indication of his custody determination was logical and was important to the main purpose of the interview, that is, preparing the minor children for the changes affecting their lives.

The kindly trial judge had an informal, fatherly talk with the three girls. He assured them that both parents loved them. He explained to them the purposes of the trial, and tried to condition them to the fact that Amy would be living in Wyoming and the other two girls in California. The judge talked to them about Amy's visitation in California and Julie's and Molly's visitation in Wyoming. The judge tried to find out about problems the girls had with each other, with their parents and with their step-mother. The judge's final order modifying the decree of divorce reflected some of the problems expressed by the girls during the in-chambers interview.

Appellant cites Tanner v. Tanner, Wyo., 482 P.2d 443 (1971), in support of her first assignment of error. In Tanner the trial court modified custody without a hearing. In this case, however, a lengthy hearing was held, and appellant was not precluded in any way from producing what evidence she desired. Appellant's first assignment of error is without merit.

II

In her second assignment of error appellant contends that the trial court abused its discretion when it changed the custody of Amy Yates from appellant to appellee. The statutory authority for a judge to change the custody of minor children is § 20-2-113, W.S.1977:

"(a) * * * On the petition of either of the parents, the court may revise the decree concerning the care, custody and maintenance of the children as the circumstances of the parents and the benefit of the children requires."

In Ayling v. Ayling, Wyo., 661 P.2d 1054, 1056 (1983), this court said:

"* * * [T]he party seeking to modify the child custody provisions of a divorce decree must show that there has been a substantial change in circumstances since the entry of the original decree warranting a modification of the child custody provisions. [Citations.] In ruling on the modification of the child custody provisions, the district court must strive to achieve a reasonable balance between the rights and affections of the parents, while giving paramount consideration to the welfare and needs of the children. [Citations.]

"The party moving to modify the child custody provisions of a divorce decree has the burden of showing that a change in circumstances has occurred, that the change warrants modification of the decree, and that the modification will be in the best interests of the children. [Citations.] In this respect, we will not interfere with the decision of the district court unless there is a procedural error or unless there is shown to be a clear abuse of discretion. [Citations.]"

In Ayling we quoted with approval Martinez v. State, Wyo., 611 P.2d 831, 838 (1980), as follows:

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * "

There are two other considerations applicable to the facts of this case. One, ordinarily there should not be a change in custody because of transient circumstances, and two, custodial preference by the affected child is a factor to be considered, but such preference is not conclusive. Douglas v. Sheffner, 79 Wyo. 172, 331 P.2d 840 (1958).

Here, some of the changes in circumstances since the original divorce decree are: 1) Appellee purchased the family home in Green River; 2) appellee married Anita Yates who loves and has a good relationship with Amy; 3) appellee experienced difficulty with appellant in visiting and communicating with Amy; and 4) Amy has been in three different schools. In addition to the identifiable changes in circumstances the trial court must also consider the effect these changes have had on the child. Here, there was evidence of more stability in Amy's life since living with her father. Although the Green River school is more difficult than the California school, Amy makes the honor roll. She is happy and exhibits more confidence, and the increased stability has contributed to increased self-esteem. Additionally, Amy has expressed a strong preference to living with her father, and is now back with former childhood friends.

In a custody hearing a minor child will ordinarily favor the parent he or she lived with just before the hearing. In this case appellant suffered some disadvantage because Amy had lived with her father for almost a year before the change of custody hearing. Despite appellee's protestations to the contrary, we would be surprised if he did not try to ingratiate himself with Amy during the time just before the hearing. Ideally, a child should be in a neutral environment before he or she states a preference concerning custody.

However, the trial judge has had long experience in custody matters and no doubt scrutinzed Amy's testimony carefully when she said her father had not tried to influence her, and...