Appeal from the District Court of Washakie County The Honorable Robert E. Skar, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] In this divorce action, the district court awarded Father primary custody of the parties' four children. Mother appeals claiming the district court abused its discretion in declining to interview the oldest son about his preference to live with her and prohibiting Father's sister from testifying as to her opinion about which parent should have custody. We conclude the district court erred in not considering the oldest son's preference and reverse.
[¶2] Mother states the issues for this Court's determination as follows:
A. The district court erred when it did not allow CBH to express his preferences regarding physical custody:
i. Minor child's expression for custodial preference must be allowed;
ii. The district court's interpretation of KES v. CAT, 2005 WY 29, 107 P.3d 779 (Wyo. 2005) prevented the minor child from expressing his custodial preferences and prejudiced the Defendant.
B. The district court erred when it would not allow Dawn Blanchard to give her opinion on the issue of who should have physical custody of the minor children.
Father asserts the district court did not abuse its discretion in declining to interview the oldest son, declining to allow Ms. Blanchard to express her opinion about physical custody or awarding him custody of the children.
[¶3] Maralee A. Holiday (Mother) and Craig D. Holiday (Father) were married in Utah in 1996. Four children, all boys, were born of the marriage. Early in the marriage, Mother worked while Father completed school. After the first child was born in 1999, Mother quit working to stay at home with him. The other three children were born in 2000, 2004 and 2008. The family moved to Ten Sleep, Wyoming in 2007 after Father began working there. In 2009, Father moved out of the marital home.
[¶4] Shortly after he moved, Father filed a complaint for divorce. He asked the district court to award the parties joint custody of the children. Mother counterclaimed for divorce and sought custody of the children with visitation by Father and an order requiring him to pay child support. Mother also filed a petition for temporary custody of the children, child support and possession of the marital home. After a hearing on Mother's petition, the district court entered an order awarding Mother temporary primary physical custody of the children and temporary possession of the marital home and requiring Father to pay child support. The district court set the matter for trial in April 2010. Prior to trial, in March of 2010, while attending a funeral in Utah, Mother decided not to return to Wyoming with the children but to remain in Utah where she would be closer to her family.
[¶5] In his pretrial memorandum, Father asked the district court to award joint legal custody and primary physical custody to him with liberal visitation by Mother if she returned to Ten Sleep. Alternatively, he asked that he be awarded sole custody of the children with reasonable visitation by Mother. In her pretrial memoranda, Mother renewed her request that primary physical custody be awarded to her. Mother also designated two witnesses who are the focus of the issues raised on appeal: the parties' oldest son, then 11 years old, and Father's sister, Dawn Blanchard. The son's witness designation stated as follows:
He resides with his mother . . . . He has, in recent days, expressed a strong desire to speak with the Judge in the case and tell him his feelings as to where he would like to live primarily and the reasons why. If he is allowed to speak with the Judge, [Mother] proposes that it take place in chambers, without either party being present, but only their attorneys being allowed to observe the conversation.
The sister's designation stated she would testify concerning "her observations of the parties' interaction with the children, [Father's] plans to move to Utah if [Mother] were to move there with the minor children, ...