Hertzler v. Hertzler , 1995 Wyo. LEXIS 228 ( 1995 )

TAYLOR, Justice.

The pai’ties in this appeal ask us to resolve a child custody dispute arising from completely divergent lifestyles of the mother and father. The district court granted the father’s petition to modify the visitation schedule and limited the mother’s visitation.

We affirm.

I. ISSUES

Appellant, Pamela M. Hertzler (Pamela), posits the following issues:

A. Whether the trial court erred in determining that plaintiff exposed her children to inappropriate sexual behavior, thereby creating a substantial change in circumstances which vested the court with jurisdiction to entertain Defendant Dean Hert-zler’s petition to modify the custody and visitation Stipulation and Order of February 26,1992.

B. Whether the trial court erred in determining that the best interests of the children are served here, and in every case, by limiting visitation between the children and their gay or lesbian parent to a de minimis level.

Appellee, Dean B. Hertzler (Dean), states the issue as:

1. Did the trial court abuse its discretion by granting the Appellee’s petition and request for supervised visitation of Appellant with the parties’ minor children?

The American Psychological Association and Wyoming Psychological Association filed an amicus curiae brief identifying the issue as:

Whether the trial court erred in holding that a mother’s involvement in an open lesbian relationship provided an independent basis for restricting visitation with her children.

The Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, the American Civil Liberties Union, the Wyoming Chapter of the American Civil Liberties Union and the United Gays and Lesbians of Wyoming filed an amicus curiae brief in support of appellant and identified the following issues:

A. Whether the trial court erred in severely restricting Pamela Hertzler’s visitation with her children based solely on the fact that she is a lesbian and without any evidence that her sexual orientation would harm her children.

B. Whether the trial court abused its discretion in concluding that the Hertzler children were “eroticized” based on its disapproval of Pamela’s lesbianism and its determination to credit the testimony of an expert who admitted that his conclusions were influenced by the mother’s sexual orientation; and whether the trial court further abused its discretion in assuming that when a lesbian parent is open and honest with her children about her sexual orientation, and displays affection, just as a non-gay parent commonly does, she “exposes” them to behavior that is sexual and inappropriate.

II. FACTS

Married in 1976, but unable to conceive children of their own, Dean and Pamela Hertzler adopted a baby boy and, a few years later, a baby girl. Less than two weeks after the second adoption became final, Pamela took both children and left Dean, filing for divorce. Incorporated in their divorce decree was Dean’s stipulation to Pamela’s primary custody of the children, expressly conditioned upon her disavowal of lesbianism and subject to his liberal visitation rights.

In late 1991, less than a year after the divorce and against their daughter’s wishes, Pamela’s parents informed Dean that their daughter was, indeed, a lesbian. Following that revelation, Pamela quickly acquiesced in transferring primary custody of the children to Dean, subject to her liberal visitation rights. By that time, Pamela had entered into an open and ongoing lesbian relationship with Peggy Keating, relocating to Lakewood, Ohio.

Dean availed himself of a match-making service to seek the affections, via letters and telephone calls, of Christine Thompson — herself a divorcee. In November of 1992, within two months of Dean’s first letter, Christine came to visit Wyoming. An attraction quickly developed and was later consummated in marriage.

Insisting that she is a firm believer in Biblical principles, Christine manifested a strong desire to inculcate the children with those values. She convinced Dean that such a program should be pursued with a vengeance, eventually to include close questioning of the children about the details of Pamela’s lifestyle, conducted amidst unrelenting exhortations against the perceived sins of Pamela.

With equally ill-conceived ardor, Pamela insisted upon fully informing the children as to her lifestyle. When visiting Ohio, the children “snuggled” with Pamela and her companion in bed; marched with the couple in a gay/lesbian rights parade; and participated in a “commitment” ceremony uniting Pamela and her new companion. Upon returning to Dean from such a visitation with Pamela, the children brought home an astonishing grasp of anatomical terminology, their articulation of which served only to deepen and reinforce Dean and Christine’s leaden fears concerning activities which were taking place in Pamela’s new home. Finally, driven by those dark fears, Dean obtained stringent modification of Pamela’s visitation privileges, from which Pamela timely prosecutes this appeal.

The record is full of Dean and Christine’s judgmental recriminations against Pamela’s new life. On the other hand, the record is equally replete with Pamela’s intensive and unrelenting efforts to immerse the children in her alternative lifestyle, seemingly to the point of indoctrination. As a consequence, we are asked to referee a contest between these protagonists of antithetical lifestyles. The manifold perils of such an exercise include the danger that we might superimpose our discretionary sensibilities upon those of the district court.

With equal and opposing force, each party vilifies the other’s views and habits, inviting a decision rooted in the lifestyles of the parents rather than in the best interests of the children. In fact, we are unimpressed with the prejudice and condemnation heaped upon Pamela’s lifestyle by Dean and Christine and remain equally dubious of Pamela’s compulsion to relentlessly expose the children to every aspect of her relationship. Taking note that restrictions on Pamela’s visitation have been eased during the pendency of this appeal, we eschew relative value judgments on the parents’ respective lifestyles in favor of a decision based upon the best interests of the children, made with due regard for the sound discretion of the district court.

III. DISCUSSION

A. STANDARD OP REVIEW

The court entering a divorce decree retains jurisdiction to enforce or modify orders affecting child custody, visitation and maintenance as the interests of the children and the circumstances of the parents may require. Wyo.Stat. § 20-2-113(a) (1994); Jacobs v. Jacobs, 895 P.2d 441, 443 (Wyo. 1995). Jurisdiction to modify such orders is properly occasioned only upon a showing of substantial change in the circumstances affecting the welfare of the children. Mulkey-Yelverton v. Blevins, 884 P.2d 41, 43-44 (Wyo.1994). The burden of demonstrating such a change is on the party seeking modification. Thompson v. Thompson, 824 P.2d 557, 559 (Wyo.1992) (quoting Goss v. Goss, 780 P.2d 306, 312 (Wyo.1989)).

Custody and visitation decisions necessarily summon broad discretionary authority in the district court. Love v. Love, 851 P.2d 1283, 1286 (Wyo.1993) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)). Adversarial enmity frequently forces the mantle of Solomon upon such courts. Sadly, even Solomonic wisdom becomes folly between parties seemingly prepared to subordinate the best interests of their children. The atmosphere in such cases is generally so charged, the decision so daunting, and accurate assessment of the character of the contestants so pivotal that we defer to the superior evidentiary perspective of the district court in custody and visitation decisions absent a clear abuse of discretion. Goff v. Goff, 844 P.2d 1087, 1092 (Wyo.1993).

Employment of judicial discretion is a definitively subjective exercise. Appellate review, however, probes the logic and soundness of discretionary decisions in light of more objectively measurable evidentiary underpinnings. Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The propriety of discretionary decisions is a function of ascertainable factual circumstances processed in a manner which is neither arbitrary nor capricious. Mintle, 764 P.2d at 257. Reasonable conclusions based upon evidence of record will not be disturbed on appeal. Thompson, 824 P.2d at 559. Furthermore, judgments supportable upon application of sound legal analysis to any grounds of record are equally inviolate, notwithstanding the district court’s choice of a flawed approach predicated upon disparate factual underpinnings. Ferguson v. Ferguson, 739 P.2d 754, 757-58 (Wyo.1987). Reversal is required only when the district court’s judgment exceeds the bounds of reason or constitutes an error of law in light of the entire record. Combs v. Sherry-Combs, 865 P.2d 50, 55 (Wyo.1993).

B. Expert Testimony

Dean and Pamela both called expert witnesses to bolster their cases. The district court rejected testimony of Pamela’s experts, finding it neither particularly useful nor credible. Our deference to that decision cannot be extended to the district court’s inappropriate reliance upon the testimony of Dean’s expert, Mr. Rhodes. Mr. Rhodes’ categorical bias against homosexuality, compounded by truncated professional experience, necessarily relegate his views to the dubious stature reserved by the district court for the opinions of Pamela’s experts.

Entirely discounting the “expert” testimony, we nonetheless discern a substantial basis in the record upon which to sustain the district court. Searching the record for abuse of discretion, we cannot say, under the circumstances revealed, that the district court’s decision was either arbitrary or capricious. Mintle, 764 P.2d at 257.

C. Substantial Change of Circumstances

Dean’s threshold obligation was to show a substantial change in circumstances sufficient to restrictively modify Pamela’s existing visitation privileges. Thompson, 824 P.2d at 559. Although accomplished by indirection, in a fashion which implicated Dean and Christine in wrongdoing as much as Pamela and her new companion, we nevertheless find that the children’s circumstances had changed substantially, to their detriment, so that their best interests required some kind of court action.

Before assessing the record’s manifestations of changed circumstances, we must address a fundamental flaw in the analysis articulated by the district court in its decision letter:

The state has an interest in perpetuating the values associated with conventional marriage, as the family is the basic cornerstone of our society. Homosexuality is inherently inconsistent with families, and with the relationships and values which perpetuate families.

The position of the family as the cornerstone of our society is a proper subject of judicial notice. See Laurence H. Tribe, American Constitutional Law § 15-20 at 1414 (2d ed. 1988). We are not, however, inclined towards exclusion in defining the family unit, particularly where the care and nurturing of children is at issue. See, e.g., Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 504-05, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (quoted with approval in DS v. Department of Public Assistance and Social Services, 607 P.2d 911, 922 (Wyo.1980)).

Whether or not Mr. Rhodes merits recognition as an. expert witness, his acknowledged homophobic bias vitiates any value his testimony might have as a factual basis for the district court’s critique of homosexuality. Nor can reliance be placed on the harsh and judgmental “fundamentalism” of Dean and Christine. Absent evidentiary underpinnings or persuasive precedent, we conclude that the district court indulged an essentially personal viewpoint in derogation of Pamela’s lifestyle.

There cannot be found, in the district court’s improvident expression of personal views on homosexuality, indices of malice or prejudice sufficient to east doubt upon that court’s capacity to remain “ ‘open to the conviction which evidence might produce.’” Basolo v. Basolo, 907 P.2d 348, 353 (Wyo. 1995) (quoting Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979)). Notwithstanding the unrelenting insistence of the parties and amici, parental lifestyles remain of secondary import to the paramount interests of the children. Error in expression of personal beliefs cannot gainsay a district court decision which clearly promotes the children’s best interests.

The district court also held that the children had been “eroticized” during their visits with Pamela, finding that this “erotici-zation” manifested itself in subsequent inappropriate sexual acting out behavior. The decision to restrict Pamela’s visitation was largely predicated on the detrimental effects attributed to that “eroticization.”

We respectfully refuse to elevate “erotiei-zation” from its dubious rank as a solipsistic contrivance of the erstwhile expert, Mr. Rhodes. Absent that spurious denomination, however, it remains clear that both parties deliberately seized the opportunity of their divorce to ostentatiously embrace conspicuously divergent lifestyles, to the great detriment of their innocent children. The children’s subsequent sexually charged and inappropriate behavior is a consequence of both parents’ thoughtless insistence upon making their offspring the focal point of an acrimonious lifestyle debate. Already suffering the ill-effects of the divorce, the children were proselytized by Pamela on one side and Dean on the other as if their souls were a grand prize in a strange and destructive parental contest.

Precedent abounds, of course, concerning failed marriage partners whose love for their children is exceeded only by a mutual appreciation for the exquisite pain to be inflicted by manipulating custody and visitation rights as weapons of retribution. Dean and Pamela are hardly unique in this regard. More unusual is a lifestyle clash so intense and detrimental to the children that it rises to the threshold of a substantial change in circumstances. Whether or not they have been “eroticized,” these children have certainly suffered abuse from both parents.

Initially, Pamela’s custody of her children was predicated upon her disavowal of homosexuality. When it became clear that this was not the case, she voluntarily relinquished custody of the children to Dean in exchange for liberal visitation privileges. Pamela’s capitulation did not quell the righteous fires burning within Dean and Christine, who felt compelled to instruct the children that Pamela had abandoned them for the affections of another woman, embracing a lifestyle which was a sin and abomination.

Pamela, of course, understood that Dean’s aversion to lesbianism antedated his union with Christine. Pamela, on her part, insisted upon familiarizing the children with every aspect of her newfound existence, “snuggling” with the children and her companion, enlisting the participation of the children in a gay/lesbian rights parade and her “commitment” ceremony. Their son was particularly confused by seemingly irreconcilable conflicts between Dean’s remarriage and Pamela’s commitment.

In their efforts to wound each other, Dean and Pamela continually placed the children at sword’s point. No one, least of all the parents, should have been surprised when the anguish and confusion of those innocents began to find expression in untoward acting out behavior; Such inappropriate behavior was a warning sign of a substantial change in circumstances, sufficient to invoke the authority of the district court to modify custody and visitation provisions. We therefore review the district court’s decision for an abuse of discretion. Mulkey-Yelverton, 884 P.2d at 43.

The substantial change in circumstances we have identified was clearly the product of zealous machinations by both contestants. In this ignoble context, it is particularly foolhardy to believe that modification of custody and visitation is appropriate to punish or reward either equally culpable contestant. The only proper objective is a modification which will serve the best interests of the children by stabilizing an environment made chaotic by thoughtlessly self-absorbed parents.

True to form, however, the parties encourage us to resolve these issues on far different bases. Pamela’s claim is that the district court erred in taking exception to her sexual preference. We hold that error to have been cured by a decision which serves the best interests of the children. This case is no more about Pamela’s sexuality than it is about Dean and Christine’s pretentious “family values.” The clash of those so-called value systems recommends neither, but did inure to the detriment of the children in a manner substantial enough to authorize the district court’s modification and require our deference to that modification absent a clear abuse of discretion.

Careful reading of the contentious and unattractive record reveals no abuse of discretion. It was reasonable for the district court to conclude that limiting Pamela’s visitation with the children would limit the damage done by mutual parental insistence upon use of the children as weapons in an acrimonious contest between lifestyles. Although we cannot condone the district court’s indulgence of a personal viewpoint, we likewise cannot reverse a discretionary decision which is reasonable and benefits from substantial support in the record. Thompson, 824 P.2d at 559; Ferguson, 739 P.2d at 757. A substantial change in circumstances, manifested by troubled behavior in the children, was engendered by the efforts of both parties to reduce the children to mere proselytes of conflicting lifestyles. Misconstruction of the district court’s decision as parental punishment or reward ignores the beneficial stabilizing effect of that decision as being in the best interests of the children.

Since its initial decision, the district court has wisely eased restrictions on Pamela’s visitation rights. Even Dean and Christine admit that the bonds of love immutably link mother and children. We applaud the district court’s recognition of that reality and commend the parties and the district court to a course that continues to ease practical vindication of those bonds.

IV. CONCLUSION

Dean and Christine have justified their demonization of Pamela on religious grounds, while Pamela, with fervent zeal, seeks to justify her new sexual preference. Contrary to the fears of the parties and amici, however, it is not the dogmatic belief systems of the parents which are in jeopardy here.

The district court’s judgment is not affirmed because of Dean and Christine’s insistence upon their “values” so much as it is in spite of that behavior. The damage their contest with Pamela has done to these children may already be irreparable. If Dean, Christine, and Pamela cannot fully subordinate promotion of their respective lifestyles to the natural innocence and love of their children for both parents, they will quickly extinguish whatever remaining chances these children have for happy and productive lives. With that somber caveat, the judgment of the district court is affirmed.

GOLDEN, C.J., files a dissenting opinion, with whom GUTHRIE, District Judge, joins.