Summary 2005 WY 151

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Case Name: Basden v. Cole

Citation: 2005 WY 151

Docket Number: 05-45

Appeal from the District Court of Lincoln County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): C.M. Aron, Aron and Hennig, Laramie, Wyoming

Representing Appellee (Plaintiff): Richard W. Beckwith of Greenhalgh, Beckwith, Lemich, Stith & Cannon, Rock Springs, Wyoming

Date of Decision: November 28, 2005

Issues: Whether the district court properly considered the child's preference as one of many factors in making its decision to modify custody. Whether the district court committed reversible error when it accepted closing arguments from the parties, including the guardian ad litem, in the form of written findings of fact and conclusions of law, following a trial on the merits.

Holdings: In custody matters, the welfare and needs of the children must be given paramount consideration. That which is in the best interests of the child is a question for the trier of fact, and will not be overturned unless an abuse of discretion is present or there has been a violation of some legal principle. The party seeking to modify established child custody provisions of a divorce decree has the burden of showing that a material change in circumstances that affects the child's welfare occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the best interests of the affected child. A child's preference as to custody may be considered by the trial court. In determining the weight to be given a child's preference several factors should be considered: the age of the child; the reason for the preference; the relative fitness of the preferred and non-preferred parent; the hostility, if any, of the child to the non-preferred parent; the preference of other siblings; and whether the child's preference has been tainted or influenced by one parent against the other.

In the present action, although the fact that parties' daughter had expressed a preference for living with Appellee was nothing new, according to the testimony of the child, her professed preference to be in Appellee's custody was the end result of many factors, and that preference had grown more urgent over the passage of time. Daughter's need for Appellee in her day-to-day life had increased as she matured into her teenage years. She was increasingly uncomfortable living in a household with three males, in particular sharing a single bathroom with them. She was not close to her brothers and she was skeptical of Appellant's parenting abilities because of his tendency toward anger, his consumption of alcohol, and his verbal abuse of her. In counterpoint, daughter felt close to Appellee and was more comfortable in her home. She also felt she could talk to Appellee about things that she could not talk about with Appellant. Additionally there had improvements in Appellee's abilities to parent and provide for Daughter, i.e., she had mended her ways, was gainfully employed, had the means to support Daughter, had remarried, was living in a nice home, etc. The record also reflects that the district court viewed the custody arrangements as a tough decision when it was made in 1998. However, that was affected to some extent because Appellee had been a stay-at-home mom, was not employed, had no income or assets, and had run off with another man. A change in these circumstances are relevant to a determination of a material change in circumstances. The standard is not one that even a good parent must improve to retain custody, but rather at the time of the hearing on modification it was relevant that both parents were then fit and proper persons to have custody and, in light of that, what was in the best interests of Daughter. After a comprehensive consideration of all these facts and circumstances taken together, and in light of Daughter's strongly expressed preference to live with Appellee, the district court did not abuse its discretion in finding that a material change in circumstances existed and by awarding primary custody to Appellee. Moreover, it is evident from the record that, in making this difficult decision, the district court considered and weighed all of the relevant factors applicable to an award of child custody under Wyo. Stat. 20-2-201(a) (including the separation of siblings), as well as the factors applicable to the consideration of a child's preference.

A Guardian Ad Litem (GAL) may not be a fact witness. In addition, attorneys who serve as GALs and also appear as a witness in that same matter commit an ethical violation. However, an ethical violation, not brought about by the prevailing party, will be reversed only if it resulted in manifest injustice. Manifest injustice contemplates a situation that is unmistakable or indisputable, was not foreseeable, and affects the substantial rights of a party. In the case at hand, Appellant complains that the GAL prefaced her findings of fact with statements that: She spoke with several persons who did not appear at trial; she reviewed reports from the Department of Family Services relating to Appellant and those reports also were not in the record; it was her opinion that Daughter's psychological needs had changed (an unqualified opinion without foundation and without opportunity to cross-examine); the step-father was not a danger to daughter; and Appellee considered it important that daughter maintain a relationship with her brothers (Appellee did not so testify). However, based on the record, the district court might reasonably deduced that daughter's psychological needs had changed based upon the testimony of one of Appellant's expert witnesses. Granted, the expert did not purport to speak directly about daughter, but rather his testimony was presented for its general applicability to teenage girls in these circumstances. It seems fair enough to conclude that it appeared to apply to daughter, in light of all the other evidence presented. The district court also might well have concluded from all of the evidence presented (especially Appellee, step-father, and daughter) that step-father was not a "danger" to daughter, even though no witness used those exact words. It is apparent that Appellee did not say the specific words that the sibling relationships were important, but certainly her testimony evinced a continued interest in all the children being together as much as possible. If there was error at all, it certainly did not arise to a manifest injustice or otherwise mandate reversal.

There was no error in the proceedings below either with respect to the district court's conclusion that there was a material change in circumstances or that it was in the best interests of the child to be in Appellee's custody. Any excess material contained in the GAL's submission to the district court and included in the final order did not constitute a manifest injustice under the circumstances of this case and does not require reversal. The order of the district court is, therefore, affirmed.

C.J. Hill delivered the opinion for the court.