Dowdy v. Dowdy

864 P.2d 439, 1993 Wyo. LEXIS 168, 1993 WL 444122
CourtWyoming Supreme Court
DecidedNovember 4, 1993
Docket93-83
StatusPublished
Cited by39 cases

This text of 864 P.2d 439 (Dowdy v. Dowdy) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowdy v. Dowdy, 864 P.2d 439, 1993 Wyo. LEXIS 168, 1993 WL 444122 (Wyo. 1993).

Opinion

MACY, Chief Justice.

Appellant Carolyn Dowdy (the mother) challenges the district court’s decree which separated the parties’ three minor children by giving primary custody of the younger *440 son to Appellee Nicky Dowdy (the father) and set the father’s child support obligation at $300 per month.

We affirm.

The mother presents the following issues for our review:

I.
The Trial Court abused its discretion in splitting the minor children of the parties by ordering that one child[,] Jason Lee Dowdy, would reside with Appellee Nicky Allen Dowdy.
II.
The Trial Court committed reversible error in ordering child support in an amount of $300 per month from Nicky Allen Dowdy to Carolyn Jean Dowdy.

The mother and the father both sought temporary and permanent custody of their daughter and two sons in their divorce proceedings. After hearing the parties’ motions, the district court granted temporary custody of the daughter and older son to the mother and temporary custody of the younger son to the father.

At the conclusion of the trial on the divorce action, the district court granted a divorce to the mother, made the temporary custody arrangement permanent, ordered the father to make child support payments of $300 per month, and divided the marital property. The mother appeals from the district court’s rulings on the children’s custody and the amount of the child support payments.

A. Custody

The mother asserts that she should have been awarded custody of all three children and that the district court erred by separating the younger son from his sister and older brother. In reviewing a district court’s decision regarding child custody, we defer to the discretion of the district court

“unless there is a procedural error or unless there is shown to be a clear abuse of discretion. A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances, as is said to mean an error of law committed by the court under the circumstances.” Deen v. Deen, 774 P.2d 621, 622 (Wyo.1989).

Uhls v. Uhls, 794 P.2d 894, 896 (Wyo.1990).

The best interests of the children is the primary consideration when parental custody matters are being determined. Fanning v. Fanning, 717 P.2d 346, 352 (Wyo.1986). “[T]he ‘goal to be achieved is a reasonable balance of the rights and affections of each of the parents, with paramount consideration being given to the welfare and needs of the children.’ ” Love v. Love, 851 P.2d 1283, 1287 (Wyo.1993) (quoting Leitner v. Lonabaugh, 402 P.2d 713, 720 (Wyo.1965)). See also Wyo.Stat. § 20-2-113(a) (Supp.1992). 1

The general rule across the country is that separating siblings from each other through custody awards to different parents is not preferred. See, e.g., Craig v. McBride, 639 P.2d 303 (Alaska 1982); Pennington v. Pennington, 711 P.2d 254 (Utah 1985); and In re Marriage of Moe, 66 Or.App. 947, 676 P.2d 336 (1984). Keeping siblings together in the same household is generally considered to be the better practice. However, the effect of separating siblings from each other is just one of several factors courts consider in determining the primary issue — the best interests of the children. See Jay M. Zitter, Annotation, Child Custody: Separating Children by Custody Awards to Different Parents —Post-1975 Cases, 67 A.L.R. 4th 354, § 2[a] (1989). See also In re Marriage of Barnthouse, 765 P.2d 610 (Colo.Ct.App.1988), ce rt. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 184 (1989).

Taking the relevant facts into account, we cannot say that the district court abused its discretion by awarding primary custody of the younger son to the father and granting primary custody of the other two children to the mother. While some conflict in the evidence was present concerning the father’s parenting skills, evidence existed showing that the father was *441 a fit parent and capable of adequately caring for the younger son.

The younger son was eleven years of age at the time the divorce decree was entered, and he stated that he preferred to live with his father. “The preference of a child of sufficient age and maturity is a factor to be considered by a court in ascertaining what is in the child’s best interests.” Yates v. Yates, 702 P.2d 1252, 1256 (Wyo.1985), quoted in Roberts v. Vilos, 776 P.2d 216, 218 (Wyo.1989).

Additionally, the evidence showed that antagonism existed between the younger son and the other two children prior to the separation. Antagonism between siblings is another factor which a court may consider in deciding whether to separate siblings from each other. In re Marriage of Slavenas, 139 Ill.App.3d 581, 93 Ill.Dec. 914, 918, 487 N.E.2d 739, 743 (1985).

The evidence also showed that, during the temporary custody period while the father had primary custody of the younger son, the younger son’s performance and behavior in school improved over what it had been prior to the parties’ separation. See Hayden v. Hayden, 588 S.W.2d 165 (Mo.Ct.App.1979). Finally, the parents live about one hundred yards apart. As a consequence, the children see each other frequently. See D.S.P. v. R.E.P., 800 S.W.2d 766 (Mo.Ct.App.1990) (there are fewer concerns with separating siblings if the children see each other often). The district court did not abuse its discretion in making the custody awards.

B. Child Support

We review the district court’s decisions on child support matters under the abuse-of-discretion standard. The district court has broad discretion in determining the proper amount of support to be awarded. Roberts v. Roberts,

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Bluebook (online)
864 P.2d 439, 1993 Wyo. LEXIS 168, 1993 WL 444122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowdy-v-dowdy-wyo-1993.