Mentock v. Mentock , 1981 Wyo. LEXIS 408 ( 1981 )

THOMAS, Justice,

dissenting,

with whom ROSE, Chief Justice, joins.

I must dissent from the result reached by the majority in this case, which is affirmance of the district court. My sole reason for such dissent is that in deciding the case in this manner this court has usurped the discretionary function of the district court. Once the abuse of the district court’s discretion is identified the only proper disposition is to reverse the judgment and remand the case to the district court so that it, not this court, can exercise appropriate discretion based upon the proper legal standard.

I agree completely that it was error for the district court to conclude that any change in circumstances must have been unanticipated in order to permit the modification of the provisions of a divorce decree awarding child support. In my judgment it is highly predictable that the district court will reach the same result based upon the correct standard, but that is for the district court to decide.

The substantive rule that the dispositions authorized pursuant to § 20-2-113(a), W.S. 1977, are exercised within the sole discretion of the district court has heretofore been frequently and unequivocally recognized. See, e.g., Rose v. Rose, Wyo., 576 P.2d 458 (1978); Salmeri v. Salmeri, Wyo., 554 P.2d 1244 (1976); Strahan v. Strahan, Wyo., 400 P.2d 542 (1965). In Strahan v. Strahan, supra, this court pointed out that the award by the district court was not subject to review except for abuse of discretion. We should not invade the discretionary province of the district court on any pretext.

Having concluded in this instance that the district court had abused its discretion by deciding the case upon an improper legal standard, the majority opinion then proceeds not only to exercise that discretion on behalf of the district court, but in so doing encompasses an obvious weighing of the evidence within the opinion. We thus must recognize an infringement upon another classic proposition frequently stated by this court, which is that the credibility of witnesses and the weight to be given their testimony is wholly within the discretion of the trier of fact. Gibson v. J. T. Allen Agency, Wyo., 407 P.2d 708 (1965); Koch v. Brown, Wyo., 401 P.2d 459 (1965); Severin v. Hayes, Wyo., 372 P.2d 1017 (1962); Condict v. Hewitt, Wyo., 369 P.2d 278 (1962).

While I agree that there was error in this instance, I am convinced that the only way to avoid infringing upon the discretion of the district court is to reverse its judgment and remand the case for further proceedings under the proper legal standard.