Trudeau v. Trudeau
Annotate this Case
Trudeau v. Trudeau
1991 WY 169
822 P.2d 873
Case Number: 91-171
Decided: 12/23/1991
Supreme Court of Wyoming
MARY K. TRUDEAU, APPELLANT (DEFENDANT),
v.
CHRIS
A. TRUDEAU, APPELLEE (PLAINTIFF).
Appeal from the District Court,
NiobraraCounty, William A. Taylor,
J.
William
W. Harden, Casper, for appellant.
Dennis
C. Meier, Lusk, for
appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE,
MACY and GOLDEN, JJ.
GOLDEN,
Justice.
[¶1.] The only issue in this
appeal is whether the district court abused its discretion by awarding custody
of the parties' two minor children to appellee, Chris A. Trudeau (father),
rather than to appellant Mary K. Trudeau (mother).
[¶2.] We affirm the decree
awarding custody of the children to their father.
[¶3.] Under the provisions of
W.S. 20-2-113(a) (1991 Cum.Supp.),
[t]he
court may make such disposition of the children as appears most expedient and
beneficial for the well-being of the children. The court shall consider the
relative competence of both parents and no award of custody shall be made solely
on the basis of gender of the parent.
[¶4.] The determination of
the children's best interests and well-being in awarding custody is a question
for the trier of fact. In challenging the trial court's custody decision, mother
faces our longstanding rule that "this court will not interfere with the
decision of the trial court in child custody questions unless there is a
procedural error or unless there is shown to be a clear abuse of discretion * *
*." Deen v. Deen, 774 P.2d 621, 622
(Wyo. 1989) (quoting Fanning v. Fanning, 717 P.2d 346, 349
(Wyo.
1986)).
[¶5.] The parties were
married in 1978; one daughter was born in 1983, the other in 1984. The father is
employed as a county sheriff's deputy; he also runs a modest bootmaking and
repair business in his home. He has been a diligent, hard worker both in gainful
employments and in formal education pursuits. Mother concedes that the father is
a good parent. Mother currently works part time as a clerk at a convenience
store and as a waitress. She indicated at trial she had no definite plans for
her future, although there was some indication she might go to St. Louis, Missouri, where her parents
live.
[¶6.] The case was tried to
the court. It heard the testimony of the witnesses for each party. Mother claims
the court erred when it sustained father's hearsay objection to the testimony of
a school guidance counselor called as a witness by the mother. Apparently, the counselor's testimony
would have related the children's preference of custodial parent.1 However, from our careful reading
of this portion of the trial transcript, the mother's attorney neither asked the
counselor about the children's preference nor made an offer of proof as to what
the counselor's testimony would have been if asked. The record in this state
advances the conclusion that no error is present. As a practical matter, it is
clear that the trial court "read between the lines" as to the children's
preference. The court stated:
I
have seen a lot of children, especially in the last few weeks, under every given
circumstances and they will say what they're going to say and I know they would
have told this lady something, Mrs. Riley, a counselor, but you know kids in
this kind of a situation have problems and I guess there is no way for us to
solve their problems as we go along here today.
[¶7.] Given the children's
ages and the other facts and circumstances in evidence, it is apparent to this
court that the trial court, in the sound exercise of its discretion, did not
attach great weight to the children's possible preferences. We find no abuse of
discretion on this point.
[¶8.] Mother also claims the
trial court's custody award to the father is contrary to the weight of the
evidence. We have made careful review under our appellate standard and find that
the award is well-supported by the evidence.
[¶9.] Mother also asserts the
trial court's custody award was driven by the court's desire to get the mother
off a public assistance program. We find that is not so. After hearing all of
the testimony, the court faced a difficult decision. It made that decision after
careful evaluation and with the goal of serving the well-being and best
interests of the children.
[¶10.] As a final issue, the mother contends the
trial court violated her constitutional right to travel by conditioning her 1991
summer visitation to Lusk,
Wyoming, where the children resided
with their father. We find this contention meritless; the trial court's reason
for this condition was to bring immediate stability into the children's lives.
That purpose, clearly in the children's best interest, would have been
frustrated had the mother decided to take them to St. Louis for the summer. We find no error
here.
[¶11.] We affirm the decree of the trial court
awarding custody to the father.
FOOTNOTES
1 For an informative educational
article on this subject, see Linda A.
Hearsay and Custody: The Twice Told
Story, 21 Fam.L.Q. 169-87 (1987).
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