Mulkey-Yelverton v. Blevins

884 P.2d 41, 1994 Wyo. LEXIS 136, 1994 WL 617099
CourtWyoming Supreme Court
DecidedNovember 9, 1994
Docket93-235
StatusPublished
Cited by12 cases

This text of 884 P.2d 41 (Mulkey-Yelverton v. Blevins) 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
Mulkey-Yelverton v. Blevins, 884 P.2d 41, 1994 Wyo. LEXIS 136, 1994 WL 617099 (Wyo. 1994).

Opinion

TAYLOR, Justice.

In this appeal, the mother of a minor child challenges the denial of a petition for modification of custody. Asserting that the district court abused its discretion, the mother maintains that the child’s preference to live with her mother instead of her father was. not given appropriate weight. The district court ruled, despite the child’s strong preference, that there was no material or substantial change in circumstances warranting a modification of legal custody.

We affirm.

I. ISSUES

Appellant, the mother, presents the following issue:

Whether the district court, though apparently contemplating the preference of [KB], failed in its final order to acknowledge and give the appropriate weight to her wishes thereby abusing its discretion and entering an order which is clearly erroneous, manifestly wrong, and totally against the evidence?

Appellee, the father, rephrases the same issue:

Whether considering all the evidence as a whole there were any changes in circumstances regarding custody of [KB] which the trial court failed to recognize or ignored thereby abusing its discretion.

II. FACTS

Richard Blevins, formerly known as Richard Smith (hereinafter Richard), and Martha Elaine Mulkey-Yelverton, formerly known as *43 Martha Elaine Smith (hereinafter Martha), were married on September 25, 1976. During their marriage, Richard and Martha had two children, a son, TB, and a daughter, KB. Richard and Martha divorced in 1982. Richard was awarded legal custody of the two minor children.

On August 11,1992, Martha filed a petition to modify the divorce decree, seeking custody of KB. Martha asserted KB’s desire to live with her was one of several alleged substantial and material changes of circumstances justifying a modification of custody. The district court found that it was in KB’s best interest to remain in the legal custody of her father. The district court, however, clarified ambiguous visitation provisions set out in the original divorce decree and established a child support obligation to be paid by Martha.

On May 6, 1993, Martha filed a petition to modify the amended divorce decree, again seeking custody of KB. Martha asserted KB’s continuing desire to live with her as support for the change in legal custody. Testimony at a hearing on the petition indicated that KB’s desire to live with her mother was obsessive. KB called her mother several times a day, often talking to her for hours at a time. Declining scholastic performance was also attributed to the time and effort KB exerted in establishing a stronger relationship with her mother.

Testimony at the hearing also indicated that in the ten years following her divorce, Martha had made little effort to maintain a relationship with her children. She contacted KB briefly in 1986, but was otherwise absent from her life. Richard maintained that given Martha’s past history with KB, a change in custody would not be in KB’s best interests. Richard also testified that a change in custody would have a detrimental effect on the close relationship KB had with her older brother.

After reviewing all of the evidence, the district court determined that Martha had failed to establish that a material change of circumstances had occurred. In its opinion letter, the district court noted KB’s intense desire to live with her mother and strongly recommended that Richard allow KB to live with Martha for a year. On September 9, 1993, the district court filed an order denying the petition to modify legal custody.

III. DISCUSSION

The district court exercises broad discretion in decisions involving the modification of custody. Love v. Love, 851 P.2d 1283, 1286 (Wyo.1993) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)). “[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.” Ayling v. Ayling, 661 P.2d 1054, 1056 (Wyo.1983). “Abuse of discretion occurs when a court exceeds the bounds of reason or commits an error of law.” Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993).

Martha attempts to identify a dichotomy between the district court’s recommendation to Richard that KB be allowed to live with her mother for a time and the district court’s decision denying a modification of custody. Martha argues that the district court recognized in its opinion letter that there was a distinct possibility of harm to KB’s well-being unless she was allowed to live with her mother. The district court stated:

[T]he Court would strongly recommend to [Richard] that he allow his daughter to live with her mother, at least for this year. [KB] is an endearing and remarkable individual. Her obvious intelligence, good sense, sweetness and maturity was exceeded only by her sorrowful yearning for her mother.. This is a yearning so intense as to be unhealthy, presenting the distinct possibility of material harm if not satisfied. If [KB] were allowed to live with her mother, the Court is confident of her abilities to handle the situation.

Despite this recommendation, Martha contends the district court failed to acknowledge KB’s strong preference in deciding that there was no material change in circumstances. We disagree.

The party seeking to modify the provisions of a child custody decree bears the burden of demonstrating that a substantial or material change of circumstances has occurred subsequent to the entry of the exist *44 ing decree. Roberts v. Roberts, 816 P.2d 1293, 1296 (Wyo.1991). The requested modification of custody must also be in the best interests of the child. Goss v. Goss, 780 P.2d 306, 312-13 (Wyo.1989). A child’s unequivocal preference to live with a particular parent is a factor to be considered, but the expression of a preference is not conclusive. Love, 851 P.2d at 1289-90 (quoting Yates v. Yates, 702 P.2d 1252, 1255 (Wyo.1985)).

We hold that the district court followed proper procedure and gave serious consideration to KB’s expressed preference to live with her mother. Love, 851 P.2d at 1290. The district court conducted a lengthy examination of KB to determine her preference. At the time, KB was fourteen years old. She answered the questions carefully and revealed her feelings to the court and her parents. As a result of that examination, the district court issued a strong recommendation that Richard permit KB to live with her mother for a time.

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Bluebook (online)
884 P.2d 41, 1994 Wyo. LEXIS 136, 1994 WL 617099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulkey-yelverton-v-blevins-wyo-1994.