Broyles v. Broyles , 1985 Wyo. LEXIS 614 ( 1985 )

CARDINE, Justice,

specially concurring.

Initially I was of the opinion that appel-lee’s judgment on his counterclaim should be reduced to the amount he had proven, or $6,354. It was his burden to prove his damages. If he failed to prove more than that amount, the award should be reduced accordingly. Upon further consideration, however, I find myself in agreement with Justice Rooney’s specially concurring opinion, i.e. that the remand should provide that the property listed in Exhibit 4 should be ordered returned to appellee, and, if it cannot be returned, that appellee recover whatever amount he can prove as its fair and reasonable value.

My greatest concern with the majority opinion here is that it holds that if Mr. Broyles’ daughter is unemancipated, his obligation of support continues irrespective of all other considerations. This court has never decided whether a noncustodial parent can be relieved of his support obligation because a child refuses the right of visitation. Other courts have generally held that the two factors which should be considered in determining whether a noncustodial parent should be relieved of the support obligation are:

1. Whether it is the custodial parent who is preventing the visitation or is it the child alone refusing such visitation?

2. Whether the custodial parent can support the child if the noncustodial parent is relieved of the support obligation.

It is uniformly held that the noncustodial parent will not be relieved of his obligation of support if the custodial parent is unable alone to properly support an unemancipated child. Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955). Instances in which the noncustodial parent has been relieved of the support obligation have been those in which the custodial parent could provide sufficient support for the unemancipated minor. Cooper v. Cooper, 59 Ill.App.3d 457, 16 Ill.Dec. 818, 375 N.E.2d 925 (1978); Barela v. Barela, 91 N.M. 686, 579 P.2d 1253 (1978); Benum v. Benum, 116 R.I. 641, 360 A.2d 108 (1976). In Benum, the court, after noting that suspension of support payments would be proper only if the needs of the child were otherwise provided for, suspended support payments for a 14-year-old child in the custody of the mother, stating:

“[I]t is within the judicial discretion of the court to suspend payments ordered for support of a minor child where said child refuses to comply with visitation rights granted to a father under a court decree * * *.” 360 A.2d at 110.

See also Snellings v. Snellings, 272 Ala. 254, 130 So.2d 363 (1961), holding the suspension of support payments under similar circumstances to be within the discretion of the trial court. In Barbara “M” v. Harry “M”, 117 Misc.2d 142, 458 N.Y.S.2d 136 (1982), emphasizing the son’s age and the father’s limited financial means, the court held that a 19-year-old student’s refusal to visit with his father justified the termination of that father’s support obligation.

I suggest the better rule to be that a noncustodial parent must continue support payments unless,

1. the custodial parent is capable of providing support for the unemancipated minor child, and

2. the custodial parent is at fault or at least substantially involved in the un-emancipated minor’s refusal to afford visitation rights to the noncustodial parent.

There is obvious merit in imposing sanctions upon a custodial parent who interferes with the right of visitation, for such sanctions may result in the noncustodial parent being afforded an opportunity to see and know and visit with the child. If, however, the custodial parent does not interfere with visitation but the child alone determines that he will not visit the noncustodial parent, then not much is achieved by employing the suspension-of-payment sanction, except perhaps to punish the child. The rights of the parent and the child must coexist. If the child, of his own volition, determines not to visit the noncustodial parent, it seems that the child may have a right to those feelings. Neither the child nor the custodial parent should be punished for that choice. As the Michigan Court of Appeals said in Henshaw v. Henshaw, 83 Mich.App. 68, 268 N.W.2d 289, 291 (1978):

“Affection is bestowed, not bought. Family relations cannot be regulated by the clock. Obviously, any coerced companionship the defendant might compel by a cutoff of child support would be utterly devoid of the sentiments of filial love and respect whose encouragement furnished the only admissible ground for visitation in the first place.”

In this case the trial court might have found that if the father’s obligations for support were terminated, the child would be adequately provided for by the mother who earned $29,000 in 1984. It was clear, however, from the record that the 17-year-old daughter of the parties was an uneman-cipated minor child and that she alone was responsible for her refusal to visit with her father. She testified that she was afraid of her father because he had beaten her mother and that she did not wish to visit her father because he had not spent time with her during the marriage when the parties were living together. Finally, the record in the case at bar indicates that the custodial parent did not in any way interfere or refuse appellee’s right of visitation with his daughter.

For the reasons stated, I concur in the opinion of the court.