Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Kite, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] In divorce proceedings ending the marriage between Amy Jean Buttle (Mother) and Joshua John Buttle (Father), the district court ordered that Mother should have primary physical custody for decision making purposes but then determined the parties should share physical custody of their four-year-old child, meaning each parent would have custody 50 percent of the time. The district court declined to make a finding concerning Mother‟s allegations of spousal abuse. Mother appeals, claiming the district court abused its discretion in ordering shared custody and not considering her claims of spousal abuse as being contrary to the best interest of the child.
[¶2] We find no abuse of discretion in the manner in which the district court addressed the spousal abuse evidence. We reverse the district court‟s custody order however, because we conclude that it abused its discretion in deciding shared custody was in the child‟s best interest.
[¶3] The issues for this Court‟s determination are:
1. Whether the district court abused its discretion when it declined to make a finding that spousal abuse occurred and was contrary to the best interest of the child.
2. Whether the district court abused its discretion when it awarded Mother and Father shared physical custody.
[¶4] The parties married on September 6, 2002. One child, a son, was born two and a half years later. During the marriage, the parties lived on a ranch located near LaGrange, Wyoming, 45 miles northeast of Cheyenne. Father was employed on the ranch, Mother commuted to work in Cheyenne five days per week and the child attended day care in LaGrange while Mother was working.
[¶5] Mother filed a complaint for divorce on September 11, 2007. She sought an order giving the parties joint legal custody of the child but awarding primary physical custody to her. At the time, the parties were still living in the home on the ranch property, but Mother had obtained a job in Alabama and planned to move there with the child. In her complaint, Mother sought an order allowing Father liberal visitation, taking into consideration the potential distance between him and the child. She asked the district court to accept a reasonable "parenting plan"*fn1 that maximized the time Father could spend with his son.
[¶6] Father answered the complaint and filed a counterclaim for divorce in which he asked for joint legal custody and primary residential custody, with Mother having liberal "co-parenting"*fn2 time with the child. Father also filed a motion for temporary custody of the child and a motion to keep the child in Laramie County, asserting the child had lived all but six months of his life on the ranch and it was not in his best interest for Mother to disrupt the stability of his life by moving him out of state away from family and friends.
[¶7] Mother responded to Father‟s motions and filed her own motion for temporary custody. She asserted that she had been the child‟s primary caretaker since his birth and it was in his best interest to remain with her. Apparently, the district court held a hearing on the motions on September 21, 2007, and ordered that the child remain in Laramie County and the parties share custody until the divorce trial.*fn3
[¶8] The district court conducted the trial on October 17, 2007. The undisputed evidence showed that Mother had been the child‟s primary caregiver throughout his life. Both parties testified that Mother got the child up and ready in the morning and took him to day care before driving to work in Cheyenne. She also picked the child up from day care in the evening when she returned to LaGrange. Father was frequently not at home in the evenings. Mother bathed the child and put him to bed at night. Father testified that he worked on the ranch at least part of most weekends during the marriage. Mother frequently took the child to Cheyenne for outings or to Saratoga to see her family on weekends. While Father testified that Mother prevented him from spending time with the child, Father conceded that he chose to rodeo and drink with his friends when he could have been with his family.
[¶9] Mother testified that she was no longer planning to move to Alabama because the district court had suggested at a prior hearing that she find a job in Wyoming or Colorado.*fn4 She testified that she was currently living in Cheyenne but planned to move to Saratoga where she had a job offer, could live in her sister‟s house and be close to her parents. She testified that she wanted to move to Saratoga because her parents were there, it is a nice community in which to raise a child and, given the violence that occurred in the marriage, she thought some distance between her and Father would be beneficial.
[¶10] Mother testified that the parties‟ marital problems were caused by Father‟s anger and drinking, which led to physical and verbal confrontations. She testified that she was afraid of Father and had concerns about how he might treat the child during visitation when he was alone with him. Father confirmed that the parties fought but not to the degree Mother claimed. He testified that the physical confrontations were before the child‟s birth and were less violent than Mother testified. He testified that early on in the marriage the fights involved both parties trying to "be the head of household." One of the verbal fights later on involved Mother‟s threats to take the child away from him.
[¶11] Father testified that in the three weeks between trial and entry of the temporary custody order, he and the child spent time together. He bathed the child, fed him, put him to bed and took him to work with him when he could. He testified that the child loved being at the ranch and that he and the child had "an amazing relationship now." Father asked for "as close to the 50/50 [custody] as I can get."
[¶12] After the parties presented their evidence, the district court considered the evidence of spousal abuse along with the other evidence presented and declined to make a finding that abuse occurred or to determine custody based upon such a finding. The district court found that the parties should have shared custody and the child should spend equal time with each of them. The court asked the parties to confer and determine what period of time the child should spend with each of them.
[¶13] On November 8, 2007, Mother filed a motion pursuant to W.R.C.P. 59(a) asking the district court to re-open the evidence and amend the judgment (although no written judgment had been entered) concerning visitation. Mother alleged that on October 28, 2007, at 2:30 a.m., while the child was in Father‟s care but apparently not with him, Father was arrested for driving under the influence and interfering with a police officer. No ruling on the motion appears in the record, although Mother states in her brief that the district court denied the motion.
[¶14] In January of 2008, the district court entered a decree of divorce. With regard to custody, the district court found that Mother should be the primary custodial parent for final decision-making authority.*fn5 The district court further found that it was in the best interest of the child for the parties to have shared custody "with each party receiving fifty percent (50%) physical co-parenting time with the child with each parent having four days on four days off." The district court further found that it was in the best interest of the child that Mother and Father discuss where the child should attend school when he reached school age and if they could not resolve the issue then the court would resolve it. Mother appealed.
[¶15] We review a district court‟s custody determination according to the following standards:
Child custody decisions are within the sound discretion of the trial court.
It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle. ...