Drake v. McCulloh

2002 WY 50, 43 P.3d 578, 2002 Wyo. LEXIS 67
CourtWyoming Supreme Court
DecidedApril 4, 2002
Docket00-295
StatusPublished
Cited by20 cases

This text of 2002 WY 50 (Drake v. McCulloh) 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
Drake v. McCulloh, 2002 WY 50, 43 P.3d 578, 2002 Wyo. LEXIS 67 (Wyo. 2002).

Opinion

GOLDEN, Justice.

[11] Appellant John Drake (Father) and Appellee Gerri McCulloh (Mother) appeared before the district court each seeking primary custody of their son. In its initial child custody order, the district court awarded primary custody of the child to Father which gave him decision-making authority, but determined that the parents should share physical custody of the child. The district court determined that the then five-year-old child should rotate his residency with each parent every five days. Soon afterwards, Mother petitioned for modification of custody to make her the primary caretaker with visitation for Father, and Father filed a counterclaim motion to make him primary custodian. Following a two-day trial, the district court determined that a substantial change of circumstances had occurred and it was in the child's best interests to grant Mother primary custody and award Father visitation.

[12] We affirm.

ISSUES

[18] Father presents these issues for our review:

A,. Did the trial court err in awarding custody of [the child] to his Mother, Gerri McCulloh, based on an alleged preference by [the child] for his Mother when:
1. There was no actual testimony by [the child] that he preferred his Mother.
2. The alleged hearsay statements allegedly made by [the child] to his Mother allegedly stating a preference to live with his Mother were at best equivocal and were without any basis.
8. [The child] was only age five at the time of the alleged stated preference. The trial judge made no attempt to determine the intelligence and maturity level of [the child].
4. [The child's] answers to questions by the Department of Family Services (DFS) caseworkers showed that his *581 Mother had coached him to say certain things.
5, Martha Schilling, the court-appointed independent evaluator, had warned against directly asking [the child] his preference. Despite this, Jill Stubbs, Wife's expert, did so. In response to one question by Stubbs, [the child] stated that he preferred to live with his Mother. - This response came after Stubbs had spent one hour questioning MceCulloh in [the child's] presence, and during that one hour session, MeCulloh had been making continuous negative statements about [the child's] Dad.
6. The trial court improperly disallowed expert testimony by Ray Leugers, a licensed psychologist, as to the inappropriateness of questioning of [the child] about a preference. Leugers had been McCulloh's initial counselor but she had discarded him when he suggested she needed further psychiatric evaluation. Leugers had numerous contacts with [the child] where Stubbs spent only one hour with [the child] and that was after [the child] had heard his Mother denigrate his Father to Stubbs.
'B. Were the issues of attention, aggression, foilet training and sex previously raised by MeCulloh and thus not a change in cireumstances? Was McCulloh's perception of these supposed new issues the only new cireumstance? - Were those changes material and substantial changes? Was the placement of [the child] in his mother's care in [the child's] best interest?
C. Did Judge Spangler make improper evidentiary rulings?
D. Did McCulloh misuse the judicial process by judge-shopping; Guardian ad Li-tem shopping; and then failing to cooperate with the new Guardian ad Litem?

Mother states that the issues are:

1. Was there sufficient evidence to support the order granting Mother's petition for modification?
2. Did the trial court commit reversible error in connection with evidentiary rulings?
3. Is appellee entitled to attorney fees and costs on appeal?

FACTS

[14] We have already addressed other issues arising from the decree of divorce in this case in McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162 (Wyo.2001). As that decision stated, the parties were married on March 5, 1994. The wife had one son from a prior marriage, and the couple had another son, the focus of this dispute, in October of 1994. The wife filed for divorcee on December 31, 1997, and, from July 26, 1999, through July 30, 1999, the trial court heard evidence pertaining to child custody, child support, property division, alimony, attorney and guardian ad litem fees, tort claims, and punitive damages. Id. at 14 4, 5.

[15] Following an extensive independent child custody evaluation, psychologist Martha Schilling, Ph.D., specifically recommended against joint custody, meaning joint decision-making, because neither parent was willing to put the best interests of the child above their own interests. Finding that neither parent could separate parenting from the divoree or their own needs from the child's, the parents could not communicate effectively with each other, could not be flexible about the child's arrangements or negotiate differences in good faith, Dr. Schilling determined that the parents were not good prospects for joint decision-making at that time. She recommended that Father be granted primary custody with ultimate decision-making responsibility for the child; however, she ree-ommended that the child share residency with each parent for shorter but more frequent periods of four days. That evaluation noted that the child indirectly indicated a preference to live with his Dad.

[T6] The district court awarded shared physical custody of the child and gave to Father primary decision-making power regarding medical and educational issues. It also awarded $1,200 per month to the wife for child support. Id. at 16. Mother appealed that decision, asserting that the district court erred when it ordered shared physical custody and that Father have primary decision-making authority. Father responded that the district court properly applied the *582 best-interests-of-the-child standard. Id. at 11. After the parties' oral arguments in this Court, the wife filed with the trial court a "Petition for Modification of Decree of Divoree to Place Primary Custody With Petitioner [Mother] as Child's Historic Primary Care Provider." The district court found that the circumstances since the entry of the Decree of Divorce had substantially changed and ordered custody of the parties' son to be changed to Mother. Id. at 112. Father appealed from that order. Because the circumstances surrounding this issue had changed so significantly and because the district court's order which pertained to the most recent facts had been appealed since the case at bar was heard, we decided to reserve our discussion on this issue. Id.

[17] The "shared residency" of the couple's five-year-old son on a rotating five-day schedule was ordered by the district court in October of 1999. On January 5, 2000, a pediatrician filed a neglect complaint against Father with the Department of Family Services (DFS). On January 26, 2000, Mother petitioned for modification of the child eusto-dy arrangement. Father answered and filed a counterclaim, seeking primary custody of the child. Declaring that it would be harmful to the child, Dr. Schilling refused to participate in another evaluation of the child.

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Bluebook (online)
2002 WY 50, 43 P.3d 578, 2002 Wyo. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-mcculloh-wyo-2002.