Love v. Love

Page 1283

851 P.2d 1283

William Kimbrough LOVE, Appellant (Plaintiff), v. Chon Mikkelson LOVE, Appellee (Defendant).

No. 92-183.

Supreme Court of Wyoming.

May 7, 1993.

Dennis M. Kirven of Kirven and Kirven, P.C., Buffalo, for appellant.

Lawrence A. Yonkee of Yonkee & Toner, Sheridan, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

Appellant William Kimbrough Love appeals the district court's order granting the petition of his ex-wife, appellee Chon Mikkelson Love to change the residence of the divorced couple's minor children of whom she has primary custody. We affirm the court's order permitting Chon Love to relocate with the couple's daughter, Betsy, and reverse and remand the decision regarding change of residence for the couple's son, Alex.

ISSUES

Appellant brings the following issues on appeal:

The trial court abused its discretion in approving a change of residence of the minor children of the parties.

A. The trial court ignored the clear preference expressed by Alex Love, 15 years old, that he wished to remain in Sheridan, Wyoming.

B. The trial court ignored the undisputed testimony concerning the differences in the quality of education that the children would receive in South Dakota.

C. The trial court erred in disregarding the evidence that the best interests of the children would be served by the residence not being changed from Sheridan by instead considering the interests of the mother.

Appellee states the issues as follows:

The trial court found that appellee's decision to change her residence is in the best interest of the children.

A reasonable decision to relocate made by the custodial parent is presumed to be in the best interest of the children.

Deprivation of visitation does not furnish a basis to deny relocation.

Appellant's claim that Sioux Falls schools are inferior does not establish that a change of residence is contrary to the best interests of the children.

The trial court did not abuse discretion by not changing the custody of Alex Love.

FACTS

William Kimbrough Love (father) and Chon Mikkelson Love (mother) were married on January 24, 1976, with two children born as issue of the marriage, Edwin Alexander (Alex) on December 8, 1976, and Elizabeth Alayne (Betsy) on April 1, 1981. The parties were divorced on September 1, 1983, and a divided custody arrangement provided that the mother would have custody of both children beginning seven days before the start of the school year until the first day of July. The father was granted custody from July until the mother's custody began again before the start of school. The parties agreed to the following stipulation in the divorce decree 6.) Change of Residence. The parties agree that the residence of the children will not be changed to a place beyond the radius of 100 miles from the City of Sheridan, Wyoming, unless both parents consent thereto or unless an order of the District Court of Sheridan County, State of Wyoming, has been entered approving such change after notice to both parties and provided that both parties shall have a reasonable opportunity to be heard in Court.

On January 14, 1992, mother filed an application for an order to show cause why she should not be allowed to change her residence and that of her two minor children to Sioux Falls, South Dakota. Father's response asserted that the change in residence would not be in the best interests of the children and that such a relocation is "a sufficient change of circumstance to allow the Court to consider modification of the custodial rights of the children."

The parties stipulated to an examination of the children by a psychologist, Dr. Ray Leugers, and a hearing was held on mother's application for change of residence on July 13, 1992. At that hearing, Dr. Leugers testified that the children were healthy, well-nurtured, had benefitted from contact with both parents and, in his opinion, the present custodial and visitation arrangement would be preferable over a geographic separation. Dr. Leugers' assessment of Alex, fifteen years of age, revealed a "pretty self-sufficient and positive young man" whom he thought capable of making "a reasonable decision in his own best interest" concerning whether he desired to stay in Sheridan or move with his mother. Betsy, in Dr. Leugers' opinion, was a "bright young lady" but with a "high level of social and emotional immaturity." Betsy, age eleven, was described as "much more dependent on both parents" with less maturity and self-esteem than other children her age. In Dr. Leugers' opinion, if the mother were to move, "it would be in Betsy's best interest to have predominant contact with her mother." However, Dr. Leugers outlined the "best case scenario" for Betsy as "continuing contact with both her parents similar to what she's had for the last several years."

Mother's reasons for wanting to move to Sioux Falls were to attend a technical school to obtain a degree in commercial design and find employment in commercial advertising. She testified that this type of program was not available in Sheridan or its vicinity though she could possibly attain her educational objectives through a program of summer school classes over several years in Denver. She saw her opportunities as a 41-year-old woman in Sheridan to be limited. She had previously worked as a licensed practical nurse shortly following the divorce, but did not like that profession. Her only other employment had been at a restaurant for approximately one year. Mother grew up in Sioux Falls and knew it to be an economically-healthy community. From her impressions as an elementary, junior and senior high school student over twenty years ago in Sioux Falls, and information she recently acquired about that school system, mother stated that, compared to Sheridan schools, Sioux Falls schools were "to a certain extent stricter, better disciplined, [with] more emphasis on academics and less on athletics." Mother testified she had extended family members in Sioux Falls though her parents resided in Sheridan. She had not yet enrolled herself or the children in school, nor acquired a job or housing in Sioux Falls. At the time of the hearing, mother had only thirty-six months of alimony payments remaining from father. Mother's reasons for seeking to relocate can be summed up by her testimony in response to the following question:

Q. So this is motivated mostly by your desire that you want to move, is that right, to change your life and you're 41 years old and you're concerned about your future?

A. I'm concerned about my future definitely and my future, of course, has to do also with Alex and Betsy's future. I think it's important for Alex and Betsy to have a mother who is happy, self-supporting and independent and who lives where she prefers to live.

Mother described the children as "physically attractive, very healthy, very confident, very stable, good students, athletically-inclined." She described her relationship with Betsy as "very close," predicted Betsy would get along "very, very well" in Sioux Falls, and stated that "Betsy needs to be with her mother."

Mother's testimony reflected her understanding of Alex's desire to stay in Sheridan to finish his last three years of high school and be with his friends. She stated that "if I am granted permission to leave, I would be sad because I love him and we're very close, but I think that he's old enough to make his decision, and I would respect his wishes."

Father's testimony revealed significant involvement with the children, including exercising his weekend and summer visitation rights, providing music lessons, attending teacher conferences, athletic events and concerts that the children participate in, and monitoring grades. Father, a school board member, compared Sioux Falls and Sheridan schools in performance on standard achievement tests, per student spending, teacher's salaries, and and drop out rates and concluded that the "schools in Sioux Falls are not nearly of the quality they are here in Sheridan." Father testified that because of the children's increasing summer activities, such as summer jobs and camps, his weekend visitations have become more important. He stated that because of the distance between Sioux Falls and Sheridan, necessitating a day's drive each way, his weekend visitation would be "non-existent" as it would be "pretty difficult" to travel twice a month to visit his children if mother were to relocate.

On July 27, 1992, the district court issued an order granting that "the residence of the minor children of the parties may be changed to a place beyond the radius of 100 miles from the City of Sheridan, Wyoming, to Sioux Falls, South Dakota." The father now appeals this order.

DISCUSSION

We employ an abuse of discretion standard in reviewing decisions of the district court. This court

has always recognized that the trial court exercises a broad discretion in the execution of its revisory powers in matters involving domestic relations. "[W]e 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." In our determination whether appellant has clearly shown that the district court abused its discretion, we have said countless times "the ultimate issue is whether or not the court could reasonably conclude as it did."

Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990) (citations omitted). See also, Marquiss v. Marquiss, 837 P.2d 25, 34 (Wyo.1992); Thompson v. Thompson, 824 P.2d 557, 559 (Wyo.1992); Moore v. Moore, 809 P.2d 261, 265 (Wyo.1991); Uhls v. Uhls, 794 P.2d 894, 896 (Wyo.1990); Goss v. Goss, 780 P.2d 306, (Wyo.1989). We have also said:

A reviewing court cannot substitute its judgment for that of the trial court, whose judgment must be sustained unless clearly erroneous, manifestly wrong, or totally against the evidence. The appellate court will not set...