Moore v. Moore

809 P.2d 261, 1991 Wyo. LEXIS 70, 1991 WL 53413

• Court: Wyoming Supreme Court
• Decided: April 12, 1991
• Docket: 89-261
• Status: Published

Opinions

THOMAS, Justice.

The main question to be addressed in this case is whether an adjudication of child custody in a divorce action must be reversed because of an ex parte conference between the trial judge and the guardian ad litem appointed to represent the minor child of the parties. Other questions are posed relating to claims of abuse of discretion by the trial court in adjudicating custody and in dividing the marital property. While recognizing the impropriety of the ex parte discussion between the guardian ad litem and the trial judge, we conclude that no prejudicial error is manifested in this instance and that the appellant, if offended by that occurrence, ignored the opportunity to address the question on the record in the trial court. The adjudication of custody and the division of the marital property both occurred within the recognized realm of discretion afforded to the trial court, and the Decree of Divorce entered in the trial court is affirmed.

Susan Marie Moore, the appellant, states the issues in this appeal as:

“I. Did the trial court abuse its discretion by allowing ex-parte communication with the guardian ad litem ?

“II. Did the court abuse its discretion concerning the evidence for the determination of custody of the minor child?

“A. The Wife’s Relationship with Jetty Lee Harvey Should Not Have an Effect on a Custody Determination

“B. The Evidence Clearly Established that Sue Moore Had Primarily Cared for the Child

“HI. Did the court divide the marital property equitably?”

Jerry Wayne Moore, the appellee, encompasses a more elaborate statement of the issues in his Brief of Appellee, which is:

“I. Is the issue of whether or not the communication between the trial court judge and the guardian ad litem was proper preserved for appeal since appellant did not object to this communication at the time of trial?

“II. Was the communication between the trial court judge and the guardian ad litem regarding whether or not the guardian would make a recommendation on child custody an improper ex parte communication because counsel for the other parties were not present?

“III. If the communication between the trial court judge and the guardian ad litem was improper, was this error prejudicial to the appellant?

“IV. Did the trial court improperly order the payment of the guardian ad li-tem fees?

“V. Did the trial court judge exceed the bounds of reason under the circumstances of the case so as to constitute a clear abuse of discretion?

“A. Was the consideration of the appellant’s relationship with Jetty Lee Harvey improper in making a child custody determination?

“B. What did the evidence establish regarding which parent had primarily cared for the child?

“VI. Is there evidence that the marital property was not divided equitably?”

We were favored by a Brief of Guardian Ad Litem in which the issues are stated to be:

“1. Did failure of appellant to object to ex parte communication and payment of guardian ad litem ’s fees preserve these issues for appeal?

“2. If appellant did preserve the ex parte issue for appeal, was the appellant prejudiced and injured and would there be a reasonable possibility the verdict would have been more favorable to her if such error had not occurred?

“3. Does the trial court, as finder of fact, have the discretion to award custody to one parent, if part of the evidence, a psychological report, suggests custody should be placed with the other parent?

“4. Who should pay the fees and costs incurred by the guardian ad litem because of this appeal?”

The appellant and appellee were married on February 2, 1979 and have a female child who was born on December 30, 1980. Jerry Wayne Moore, the appellee, instituted this divorce action on May 26, 1989. After an Answer and Counterclaim by the wife, various proceedings occurred in the case including an application by the appel-lee for the appointment of a guardian ad litem. The appellant agreed to the appointment of the guardian ad litem, but opposed the appointment of the individual selected by the appellee. Nevertheless, the trial court appointed that individual. After trial, the court entered a Decree of Divorce on October 12, 1989.

In the course of remarks from the bench, the trial judge stated:

“THE COURT: * * * That leaves us then with the question of custody. And it is an extremely difficult question.

“I have weighed, as I am sure, many of the same things that Mr. Patchen has.

“Just so it’s clear for the parties, I spoke with him for a few minutes before we came back in while you were preparing your closings. He told me at that time that he was not going to make a recommendation. I assured him at that time that I would not be upset at him if he did not, believing that the ultimate responsibility always lies with the court, even as distasteful as that might sometimes be.

“The court in this matter has measured or has looked at a number of things, and I want to apprise the parties of them.”

The court then went on to relate the various factors that had been incorporated in its decision with respect to custody. No one made any complaint about the conference between the guardian ad litem and the trial judge that was disclosed in the course of the judge’s remarks. Consequently, the only record of that event is found in the remarks of the trial judge quoted above.

We begin with the question arising out of the ex parte communication. We are satisfied that such an occurrence cannot be ethically justified. In the Code of Judicial Conduct, adopted by order of this court in 1973, the pertinent statement is:

“(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” Canon 3A.(4), Code of Judicial Conduct.

In the Rules of Professional Conduct for Attorneys at Law, adopted by this court in 1986, the following pertinent language appears:

“A lawyer shall not:

* * * # * *

“(b) communicate ex parte with an official acting in an adjudicative capacity concerning any substantive or procedural issue before him, or which is likely to be before him, unless:

“(1) opposing counsel has consented, or

“(2) such communication is otherwise permitted by law; * * Rule 3.5, Rules of Professional Conduct for Attorneys at Law.

We are satisfied that those rules were applicable in this instance. A guardian ad litem is the attorney for the minor whom he is appointed to serve. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977). He participates in the proceedings as an advocate. Veazey. See Riley v. Erie Lackawanna R. Company, 119 Misc.2d 619, 463 N.Y.S.2d 986 (1983); De Los Santos v. Superior Court of Los Angeles County, 27 Cal.3d 677, 166 Cal.Rptr. 172, 613 P.2d 233 (1980). In Wyoming, that rule is consistent with policy articulated by the legislature in two specific statutes requiring, or permitting, the appointment of a guardian ad litem since, in each statute, the guardian is charged with representing the child. Sections 14-2-312 and 14-3-211(a), W.S.1977 (July 1986 Repl.). In accordance with the foregoing authority, we perceive it to be unequivocal that the guardian ad litem has the same ethical responsibilities in the proceeding as any other attorney. The specific subject matter of this case is succinctly summarized in this way:

“ * * * Guardians ad litem may not have ex parte communications with the judge.” Podell, The Role of the Guardian Ad Litem, 25 Trial 31, 34 (April 1989).

Identification of the ethical impropriety surrounding the ex parte communication does not serve, however, to resolve the issue. The judgment in this instance was a decree of divorce entered in favor of a party who was not responsible for, and did not participate in, the ethical impropriety. We are convinced that to justify the reversal of a judgment under these circumstances demands more than simply the occurrence of the ex parte communication. The rule we espouse is that, to lead to a reversal of a judgment in such an instance, a manifest injustice must appear. In order to evaluate the presence of a manifest injustice, we look to the totality of the circumstances. In this instance, the trial court considered the stability of the minor child; the primary care provider in terms of history; the gender issue; an illicit sexual relationship of the appellant; and alluded to substance abuse problems by the appellee. It determined that both parties are proper parties to have custody of the child and that both are fit and proper parents. Nothing in the record indicates that the trial judge relied upon any private information obtained from the guardian ad litem and, apparently, there was evidence or argument presented to the court with respect to the several factors that were considered in adjudicating custody. We discern no manifest injustice arising out of the ex parte contact.

Furthermore, a claim of error relating to ex parte contact is susceptible to waiver, as is true of most claims of error. The trial judge certainly made known to the parties the fact of the ex parte contact. The appellant did not object at that time. The appellant did not seek to explore the tenor of the ex parte contact. Instead, the parties accepted what the court said as being a full disclosure of the event. It was only after the articulation of an adverse ruling that the appellant became concerned about the matter of ex parte contact. That matter should have been raised and explored at the trial.

We turn then to the question of whether there was an abuse of discretion in awarding custody to the appellee, the father. Our rule is that this court does:

“ * * * [N]ot interfere with the decision of the district court in child-custody questions unless there is a procedural error, or unless there is shown to be a clear abuse of discretion, and, further, that 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. Ayling v. Ayling, supra [661 P.2d 1054 (Wyo.1983) ]; Bereman v. Bereman, Wyo., 645 P.2d 1155 (1982); Martinez v. State, Wyo., 611 P.2d 831 (1980).” Fanning v. Fanning, 717 P.2d 346, 349 (Wyo.1986).

Uhls v. Uhls, 794 P.2d 894 (Wyo.1990); Goss v. Goss, 780 P.2d 306 (Wyo.1989); Deen v. Deen, 774. P.2d 621 (Wyo.1989). Our analysis of the rationale articulated by the district judge in making his custodial determination satisfies us that there is no showing of a clear abuse of discretion and, other than the ethical problem previously discussed, there was no procedural error. We affirm the Decree of Divorce insofar as it awards custody to the appellee.

The complaint about division of marital property was not emphasized by the appellant in her brief. We know that no hard and fast rules govern property division. Dennis v. Dennis, 675 P.2d 265 (Wyo.1984); Klatt v. Klatt, 654 P.2d 733 (Wyo.1982); Paul v. Paul, 616 P.2d 707 (Wyo.1980). This aspect of the dissolution of a marriage is also vested in the discretion of the trial court and, to be just and equitable, the division need not be equal. Blanchard v. Blanchard, 770 P.2d 227 (Wyo.1989); Dennis. Our examination of the record and the property division that was made by the court satisfies us that there was no abuse of discretion by the court in making the property division. Initially, we note that a substantial part of the property division was agreed upon by the parties. With respect to the balance, the court endeavored to effect an equitable division, and we find no fault with that. The aspect of the divorce decree relating to the property division is affirmed.

In the Brief of Guardian Ad Litem, the matter of fees with respect to this appeal is raised. We have no difficulty in sustaining the order of the trial court that provided for the payment of the fees of the guardian ad litem out of the Apollo and Moore Mineral Trust moneys. The guardian ad litem complains that those moneys were actually divided and that appellant did not pay her share. We find no justification for the appellate court to pursue that particular problem, and we content ourselves with a simple ruling that the charges for pursuit of the appeal by the guardian ad litem should be managed in exactly the same way that the fees in the trial court were.

In summary, we conclude that no reversible error is to be found in the improper ex parte contact between the guardian ad li-tem and the trial judge. There was no abuse of discretion in the award of custody or in the property division. The Decree of Divorce is affirmed.

URBIGKIT, C.J., filed a dissenting opinion.

MACY, J., filed a dissenting opinion.