Matter of TRG , 1983 Wyo. LEXIS 337 ( 1983 )

ROONEY, Chief Justice,

specially concurring.

I agree with the majority of the court that the statutory proceedings (§ 14-2-108, W.S.1977) were not followed by the district court in connection with the informal hearing held on May 10, 1982, and that the judgment resulting therefrom was void.

I also note that the judgment did not direct the mother to do anything, let alone turn the child over to the sheriff. Accordingly, the mother could not properly be held in contempt of court for disobeying the directions of the judgment.

In view of these preliminary factors, the entry of a default judgment was an abuse of discretion. It may be in the best interest of the child that its custody and control be with the putative father, but a child’s well being is so paramount in these cases that those things which affect it should be determined on their merits. To allow a default judgment to stand against the mother, based on procedural impropriety for which she has no fault, is an abuse of discretion. The court could not reasonably conclude as it did in entering the default judgment and in allowing it to stand. In doing so, it acted in a manner which exceeded the bounds of reason under the circumstances. Such is an abuse of discretion. Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

I would reverse and remand the case with instructions to vacate all orders and judgments entered therein; to enter an order returning care, custody and control of the child to the mother pending further proceedings; and to undertake proceedings pursuant to § 14-2-101, et seq., W.S.1977, at the point whereat an informal hearing is set.

I realize that I reach the same place as does the majority opinion, but I do so with a little more particularity as to the contempt order and as to the default.