Thursday, September 25, 2008

Summary of 2008 WY 112

Summary of Decision issued September 25, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Testerman v. Testerman

Citation: 2008 WY 112

Docket Number: S-08-0006

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

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

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

Facts/Discussion: The appeal arose from the divorce proceedings of Ms. Testerman (Mother) and Mr. Testerman (Father). The district court awarded primary custody of their daughter to Mother, and provided visitation to Father with the aim that each parent would spend approximately equal time with the child. The district court’s express purpose was to prevent Mother from moving to California.
In the divorce decree, the district court stated that it was in the best interests of the child for Mother to have primary custody. Given the evidence, the Court saw no abuse of discretion in its decision to grant primary custody to Mother.
The district court prepared a “Parenting Plan” which was set up after reviewing the Arizona parenting plan. The district court’s term “parenting time” was meant to be synonymous with the term “visitation” as used in the Wyoming statutes. The “Parenting Plan’ was such that initially, the child would be residing with Mother with visitation from Father. Gradually, Father’s visitation increased so that by the time the child entered school, she would spend four days with each parent alternately. The Court noted the arrangement seemed inconsistent with the district court’s award of primary custody to Mother and that it seemed more like joint custody. The Court has repeatedly said that joint custody was not favored by the Court absent good reason. The Court has emphasized that the success of joint custody depends upon the parties’ ability to communicate and agree on the matters relevant to the child’s welfare. The record in the instant case cast doubt on the Testermans’ ability to do that. The district court articulated only one reason for imposing visitation as it did: to allow Father and the child to develop and maintain a relationship. It was not sufficient to justify the de facto joint custody imposed by the district court. Therefore, the district court abused its discretion in ordering this custody and visitation arrangement.
The district court’s custody and visitation arrangement also impinged on Mother’s rights to travel and relocate providing that if either parent gave notice of intent to move from Laramie County, it may be considered as a change of circumstances sufficient to give it jurisdiction to consider a custody modification. The Court stated that their precedent is quite clear that relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order.

Holding: The district court imposed de facto joint custody without establishing the good reasons needed to support the arrangement. The sole reason given for the arrangement was to keep Mother in Cheyenne which violated her constitutional rights. The district court abused its discretion and violated legal principles in establishing the custody and visitation arrangement.
The Court affirmed the district court’s decision to grant primary custody to Mother. It reversed the decision concerning Father’s visitation, specifically paragraphs 13.c. through 13.l. of the Amended Decree of Divorce and remanded to the district court.

Affirmed in part, reversed in part, remanded.

J. Burke delivered the decision.

Link: .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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