Summary 2011 WY 12

Summary of Decision January 31, 2011

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Case Name: Holiday v. Holiday

Citation: 2011 WY 12

Docket Number: S-10-0160

URL: http://tinyurl.com/4sj3y2n

Appeal from the District Court of Washakie County, Honorable Robert E. Skar, Judge

Representing Appellant (Defendant): Robert W. Brown and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Plaintiff): Wendy Press Sweeny, Worland, Wyoming.

Date of Decision: January 31, 2011

Facts: In this divorce action, the district court awarded Father primary custody of the parties’ four children. Mother appeals claiming the district court abused its discretion in declining to interview the oldest son about his preference to live with her and prohibiting Father’s sister from testifying as to her opinion about which parent should have custody.

Issues: Whether the district court erred when it did not allow minor child to express his preferences regarding physical custody. Whether the district court erred when it would not allow the paternal aunt to give her opinion on the issue of who should have physical custody of the minor children.

Holdings: The Court found that the district court abused its discretion in not considering the oldest child’s preference for living with one parent over the other parent. Any error in the exclusion of the sister’s opinion testimony was harmless. The custody order is reversed and the case is remanded for the parties or, if they remain unable to agree, the district court to fashion a method for presenting evidence of the oldest son’s preference. In the event the parties are unable to agree on an appropriate method, the district court may interview the child in the presence of the parties’ attorneys, conduct a recorded interview or fashion another procedure protecting the parties’ due process rights. The parties shall then have the opportunity to challenge, rebut or explain the evidence. The Court reversed and remanded for proceedings in accordance with this opinion.

Chief Justice Kite delivered the opinion for the court.