Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] The appellant (Father) appeals from the child custody provisions of a decree and a clarified decree entered in the parties' divorce action. We conclude that the district court abused its discretion in fashioning the custody award, and therefore reverse.
[¶2] Did the district court abuse its discretion in awarding primary legal custody and shared physical custody of the parties' minor child (Child) to the appellee (Mother)?
[¶3] The parties were married in 1988. Child was born in 1998. In April 2006, Mother informed Father that she had been having an affair with TM, who "has a bad background but has cleaned himself up, that he is a felon and he used drugs." Shortly thereafter, Father filed a divorce complaint along with several pre-trial motions. The motions were resolved via a stipulated order which, in pertinent part, appointed a custody evaluator, and gave the parties temporary joint legal and physical custody of Child, with physical custody alternating on a weekly basis.
[¶4] On January 12, 2007, Father filed a motion seeking modification of the temporary custody order on the ground that Mother and Child spent "substantial amounts of time" with TM, who recently "was found to be in possession of cocaine, drug paraphernalia, cutting agents, and a false urine sample . . . ." Mother filed a response to Father's motion in which she admitted its primary averment, but claimed that she had severed all ties with TM and that neither she nor Child "will be spending any time around [TM] in the future." The district court entered an order on March 7, 2007, disposing of Father's motion in relevant part as follows:
2. The parties agree that [TM] was arrested on December 22, 2006 for the unlawful possession of a controlled substance. [Mother] has, through her counsel, advised the Court that she has terminated all contact with [TM].
3. Because of [Mother's] representation, the Court does not find it necessary at this time to conduct a separate evidentiary hearing on [Father's] motion for modification of temporary custody.
4. In view of [TM's] present circumstances, [Mother] should be ordered not to permit any verbal, written or personal contact, of any kind, between [TM] . . . and [Child].
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. That [Mother] shall be and she is hereby ordered not to permit any verbal, written, or personal contact of any kind between [TM] . . . and [Child].
[¶5] Mother's written pre-trial statement reiterated her decision to separate herself and Child from TM:
A long-term relationship with [TM] did look encouraging until I found out about his arrest and charges for possession of cocaine. I still do not feel like I know all of the details and truth about the charges and why they were dismissed. In any event, I have terminated all physical contact with [TM], and [Child] has not talked to or seen [TM] since January 12, 2007. I do not consider [TM] a boyfriend any longer or even a potential boyfriend. He has made a very big mistake, he was dishonest, and he has an addictive personality. I have continued to talk to him on the phone however, as a friend; I find it difficult to abandon somebody in their biggest time of need. And I did not consider or appreciate the fact that continuing to talk to him on the phone would jeopardize my chances of custody for [Child]. [Child] is the most important person in my life, and if it means I cannot talk to [TM] on the phone, then so be it.
[¶6] The divorce trial covered four days in April 2007. Mother testified repeatedly that she had no intention of resuming a relationship with TM, that her relationship with TM "terminated" when she learned about the "drug bust," and that it was not appropriate for Child to have further contact with TM. In addition, the court-appointed custody evaluator, a clinical psychologist who specializes in child and family psychology, testified as follows:
Q: In this particular instance, do you believe that it is appropriate in any way for [Mother] to continue a relationship with [TM]?