Love v. Love , 1993 Wyo. LEXIS 87 ( 1993 )

THOMAS, Justice,

concurring in part and dissenting in part, with whom TAYLOR, Justice, joins.

I must dissent from the reversal of this case with respect to the custody of the son, Alex. I agree with the ruling of the majority affirming the decision of the trial court as to the other issues. I cannot agree that the trial court committed any abuse of discretion in this case. Instead, I perceive the case as one in which the trial court manifested the epitome of discretion in not changing custody of Alex.

Stripped of rhetoric and posturing, the case amounts to this:

A mother who was awarded primary custody of two minor children in a divorce proceeding desired to move beyond a radius of 100 miles from the residence of the parties at the time of the divorce. By the terms of the decree, such a move required consent of the parties or an order of the court. The mother sought such an order, and the father sought a change of primary custody of the children to him if the court granted permission to the mother to move. The court granted permission for the move without any change in custody. The minor son of the parties, approximately 15 years of age, expressed a desire to stay in the place of residence and finish high school there. The mother agreed that this could occur although she expressed regret at the separation from her son.

The majority recognizes that the preference of the minor child is a factor to be considered by the court, but the preference is not conclusive, citing Yates v. Yates, 702 P.2d 1252 (Wyo.1985). The ratio deciden-di of the majority opinion, however, is that in this instance the preference of the minor son is conclusive. This effectively removes any discretion from the trial court and, at least, the majority should refrain from casting any aspersions upon the exercise of discretion by the trial court. Under the rule of this ease, the trial court had no discretion.

I am persuaded that the majority has adopted a koan inappropriate to the resolution of this case. The options of the trial court were:

1. To maintain the status quo and rely upon the good faith of the mother to follow the desires of the minor son.

2. To change custody from the mother to the father.

In choosing the former option, the court recognized the desires of the minor son and, apparently relying upon the good faith of the mother, no change in custody was ordered. The trial court assumed a calculated risk that no further judicial proceedings would be required to address custody of Alex. If the second option is adopted, as the majority determines, then a new proceeding will be required if the son changes his mind and wishes to live with his mother. Under the option chosen by the trial court, if the mother fails to act in good faith, a new proceeding also will be required to change custody to the father.

I am persuaded that, in choosing to pursue the first option, the trial court properly exercised its discretion under any or all of the definitions or standards for the exercise of discretion previously articulated by this court. The choice of the trial court is eminently reasonable, offering the potential for the minor son to reside with either the father or the mother, as the son chooses, without recourse to further judicial proceedings. I assume the son will continue in his choice to stay and finish high school but, if he changes his mind for any reason, then a new proceeding will be required to change custody back to his mother. The trial court could reasonably conclude as it did; its judgment was not clearly erroneous, manifestly wrong, or totally against the evidence; it exercised a sound judgment with regard to what was right under the circumstances and without doing so arbitrarily or capriciously.

Unless the true rationale for the majority decision is that the preference of the minor child is to control whenever it is expressed, the majority has usurped the discretion we historically have held to be the prerogative of the trial court. If the expressed desire of the minor child is not controlling, then it is the majority of this court that has acted in an arbitrary and capricious mode. The result is not good appellate jurisprudence.

I would affirm the judgment of the trial court in all respects.