Summary 2011 WY 66

Summary of Decision April 14, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: LRD v. DAH

Citation: 2011 WY 66

Docket Number: S-10-0167

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461977

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant Mother (Respondent): Deborah Ford Mincer, Cheyenne, WY.

Representing Appellee Father (Petitioner) : James A. Eddington, Torrington, WY.

Date of Decision: April 14, 2011

Facts: Appellant challenges the district court’s order awarding Appellee primary custody of the parties’ toddler son. Among seven issues, Appellant’s contentions include that the district court failed to consider that she was the primary caretaker and that Appelee physically abused her on one occasion.

Issues: Whether the trial judge erred when he failed to weigh the “primary caretaker” factor against the statutory factors of Wyo. Stat. 20-2-201(a) which he chose to apply. Whether the trial judge erred in his statutory interpretation of the relative competency and fitness factor where allegations against Appellant were unrelated to child’s welfare. Whether the trial judge erred in judging Appellant’s handling of visitation under the statutory factors when Appellee had no legal rights to visitation prior to entry of the order adjudicating his paternity. Whether the trial judge erred by failing to consider Appellee’s physical abuse under Wyo. Stat. 20-2-201(c). Whether the trial judge erred by admitting evidence of claimed misconduct unrelated to the child. Whether the trial judge committed an abuse of discretion in awarding custody to Appellee. Whether the trial judge erred by offsetting Appellee’s payments on his debts, honoring a claimed agreement in lieu of child support, and awarding only four months of child support to Appellant.


Holdings: The ultimate goal for the district court is a reasonable balance of the rights and affections of each parent, with paramount consideration being given to the welfare and needs of the children. Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2009). Guided by the mandatory statutory factors in Wyo. Stat. 20-2-201(a) (2009) and any others that the district court deems relevant, the district court must fashion a custody award. Depending on the case, different factors will present a greater need for emphasis. Additionally a process of this kind could readily swing the balance toward one party despite there being a material factor in favor of the other party. The one constant, however, is that the resolution must be in the best interests of the child. Because the district court is relying on its discretionary power, it should place on the record the circumstances and factors that were crucial to its determination, as well as its reasoning. Nevertheless, unless requested, district courts are not required to make specific findings for each statutory factor if consideration is reflected in the proceeding transcripts, by opinion letter, or as findings in the written order.

In the present action, although the trial court considered the wife’s role as a primary caregiver in determining what was in the best interests of the child, the other factors which were considered by the trial court ultimately weighed in the husband’s favor; i.e., the husband’s willingness to get help through counseling to improve his parenting abilities, the emotional stability he could offer the child, and the likelihood that he would promote an ongoing relationship between the child and the wife. Thus, while primary caregiver status is a weighty consideration, it is not determinative. Rather, the primary caregiver is one factor among the many that the district court considers. Other factors may outweigh the primary caregiver status. However, since the district court does not mention the primary caregiver status in either its oral ruling or order as to how it weighed against the other factors considered by the court, a remand is in order for the court to put on record its consideration, if any, of the primary caregiver status. This is a crucial part of this specific case, and while the evidence will not be reweighed on appeal, the Court must be apprised of the evidence considered by the district court and the entire thinking process it used.

Next, Appellant contends that the district court erred in interpreting the statutory factor of the relative competency and fitness of each parent. Appellant argues that the focus should have been on parental fitness, not moral fitness in reference to the court’s consideration of her DUI conviction and later probation violation. Appellant’s claim is without merit. The district court heard ample testimony about the conduct of the parents, addressed the parents in the correct manner, and thus, weighed this factor soundly as well. The trial judge is in the best position to assess the credibility of the witnesses and weigh their testimony. This entire case revolved around the assessment of credibility and the proper weight of testimony. The district court’s weighing of the evidence was within the ambit of its broad discretion.

Appellant contends that the judge improperly faulted her for not allowing Appellee visitation during the pendency of this action and submits that until there was an adjudication of paternity, Appellee had no right to visitation. Tthe district court’s decision was not based solely upon this factor, and it even appears that the court did not give this particular factor significant weight, in that its discussion moved quickly from the parties’ past visitation issues to Appellant’s minimization of Appellee’s role in the child’s life. The district court did not abuse its discretion in this instance.

In cases where “spousal abuse” or “child abuse” is present, the trial court is required to consider such evidence as being contrary to the best interest of the children. In those cases, the trial court is mandated by statute to fashion custody and visitation orders to provide for the best interests of the children and to protect the spouse and children. Although it may have taken this information into account when making its decision, the district court did not make any note as to whether it considered this evidence, let alone the weight it carried in the final decision. Accordingly, remand to the district court is necessary to provide an opportunity to place on the record its findings with respect to this matter.

Appellant also argues that the district court erred in admitting evidence of her claimed misconduct that was unrelated to the well-being of the child. Specifically, Appellant argues that her DUI and alleged probation violation were not relevant because those acts were not related to her ability to care for the child. Although Appellant argues that her DUI was absolutely unrelated to her child, in that the child was not at the bar while she was drinking, nor in the car when she received her citation, evidence of such conduct can be weighed in child custody matters. The district court was obviously not satisfied at trial of Appellant’s assurances that the DUI had “nothing to do” with her child. This case hinges on what is best for the child. The district court’s findings with respect to this matter were not an abuse of discretion.

Next, Appellant argues generally that the custody award is contrary to the evidence and an abuse of discretion by the district court. She specifically mentions the following in support of her argument that the court erred in finding Appellee capable of providing appropriate care for the child: Appellee did not provide child support; Appellee cut off Appellant’s utilities; Appellee battered her; the child fell down some stairs while in the care of Appellee, requiring a trip to the emergency room; Appellee is “fronting” this case for his parents so that they can have better access to the child; and Appellee does not change the child’s diaper enough. Appellant also complains that the district court erred in finding that she was reluctant to provide visitation without a court order. Reasonable minds could reach different conclusions about which parent’s custody would be in the best interests of the children. Seldom, if ever, does a court have a choice between a parent who is all good on one side and a parent who is all bad on the other side. The matter of awarding custody is a comparative proposition wherein the court exercises its best judgment and discretion and awards custody to one parent or to the other, according to what the court thinks is for the best interest and welfare of the children. Regarding Appellant’s specific claims, the trial court made extensive findings and, after a review of the record, it cannot be said that there was an abuse of its discretion.

The duty of a natural father to support his child begins at the child’s birth. The establishment of paternity by judicial decree is merely a procedural prerequisite to enforcement of the duty of support owed to the child: it does not create, but only defines the preexisting duty. A district court possesses the authority to issue support orders retroactive to the date of a child’s birth in paternity/support actions initiated by a state for the reimbursement of public assistance. The guiding principles in each instance are to promote the welfare of the child and to serve the ends of justice. Consequently, retroactive child support orders should be the rule, rather than the exception. The burden is accordingly placed upon the father to demonstrate to the district court why a retroactive child support order should not issue in a particular case. However, in the present action, for much of the child’s life, the parties shared expenses and were together, either living together or financially connected and it is inappropriate for Appellant to argue that she is also entitled to retroactive child support for that period of time. This decision is not outside the bounds of reason under the circumstances.

The Order of the district court is affirmed in part and reversed in part. That portion of the district court’s order determining child support is affirmed. Also affirmed are the district court’s findings and conclusions regarding the competency and fitness of each parent. However, the matter is remanded to the district court for reconsideration of the “primary caretaker provision” and the spousal abuse allegations and how those matters should be weighed in the determination of which parent should be the primary custodian.

J. Hill delivered the opinion for the court.