Weller v. Weller

THOMAS, Justice,

dissenting.

I do not agree with the result reached in the majority opinion, and, consequently, I must dissent. The majority opinion rejects the application of the provision for jurisdiction found in Wyo. Stat. § 20-5-104(a)(ii) (1997) because:

The record does not contain sufficient facts to establish that, when the divorce action was filed, at least one contestant had a significant connection with Wyoming or that substantial evidence was available in this state with regard to the children’s present or future care, protection, training, and personal relationships.

*497Maj. at 495. This paraphrase is not precisely in the language of the statute, which provides:

(ii) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships;

Wyo. Stat. § 20 — 5—104(a)(ii) (1977). The rationale of the majority opinion is contrary to well established principles of appellate jurisprudence in Wyoming.

We have said:

In order to consider the father’s abuse of discretion issues, we must have a transcript of the evidence presented to the court relating to the custody and support of Robert. Feaster v. Feaster, Wyo., 721 P.2d 1095 (1986). The responsibility for presenting a sufficient record lies with the appellant. Nicholls v. Nicholls, Wyo., 721 P.2d 1103 (1986); State v. Dieringer, Wyo., 708 P.2d 1 (1985). In the absence of such a record, we have to assume that the court heard evidence from which it could find that the mother was a fit and proper person to have custody of Robert and that the father was physically able to provide child support for him. Id. at 12; Sharp v. Sharp, Wyo., 671 P.2d 317 (1983).

Edwards v. Edwards, 732 P.2d 1068, 1070 (Wyo.1987).

In the absence of a record, this court indulges the presumption that the evidence presented at the hearing supported the judgment of the hearing body and warrants its affirmance. See Feaster, 721 P.2d at 1101. Without a record we can only presume that arbitrator Brock was fair and impartial in his actions on the. board and that the board acted within its legal authority in granting an award of damages to the Claimants.

Matter of Wyoming Game and Fish Com’n, 773 P.2d 941, 944-45 (Wyo.1989). In Feaster v. Feaster, 721 P.2d 1095, 1097 (Wyo.1986), alluded to in Matter of Wyoming Game and Fish Com’n, we said:

Mr. Feaster’s attempt to settle the record was unsuccessful, and we have no way of knowing what evidence was actually presented to the district court at the July 3 hearing. Without either a transcript or an approved statement of the hearing we cannot assume that the court’s findings were unsupported. We cannot find an abuse of discretion.

In other cases, we have articulated the same concept:

This jurisdiction has, of course, consistently held that where evidence is not properly brought into the record the court on appeal will presume the evidence sustained the judgment. Robinson v. Gallagher Transfer & Storage Co., 58 Wyo. 69, 125 P.2d 157, 164; Lakeview Canal Co. v. R. Hardesty Mfg. Co., 31 Wyo. 182, 224 P. 853, 854; Royal Ins. Co. v. O.L. Walker Lumber Co., 23 Wyo. 264, 148 P. 340, 342, 24 Wyo. 59, 155 P. 1101, Ann.Cas.l917E, 1174. A corollary rule is that on a partial or incomplete record, an appellate court will presume any conceivable state of facts within the scope of. the pleadings and not inconsistent with the record which will sustain and support the judgment of the trial court. Ruby v. Wellington, 162 Cal.App.2d 132, 327 P.2d 586, 588; United States Manganese Corporation v. Schuster, 84 Ariz. 31, 323 P.2d 5, 6; Walling v. Kimball, 17 Cal.2d 364, 110 P.2d 58, 63; In re Byam’s Estate, 196 Wash. 76, 82 P.2d 111, 112; Klein v. Harris, 268 Ala. 540, 108 So.2d 425,428.

Wyoming State Treasurer ex rel. Workmen’s Compensation Dept. v. Schultz, 444 P.2d 313, 316 (Wyo.1968).

This court has repeatedly held that * * * where evidence is not in the record, the court assumes requisite facts were established to sustain the judgment, Pettish Bros. v. Cooper, 47 Wyo. 480, 38 P.2d 607; that absence of evidence does not warrant presumption that judgment is not sustained by the evidence, Jacobson v. Wickam, 36 Wyo. 522, 257 P. 7; where evidence not brought to reviewing court, facts found must be taken as true, Arp v. Jacobs, 3 Wyo. 489, 27 P. 800; and where part of *498evidence is omitted the record is no more effectual than no record and the court will assume the judgment is supported, Callahan v. E.O. Houck & Co., 14 Wyo. 201, 83 P. 372. See also Lakeview Canal Co. v. R. Hardesty Mfg. Co., 31 Wyo. 182, 224 P. 853, and Royal Ins. Co. v. O.L. Walker Lumber Co., 23 Wyo. 264, 148 P. 340, 24 Wyo. 59, 155 P. 1101.

Rayburne v. Queen, 78 Wyo. 359, 376, 326 P.2d 1108, 1115 (Wyo.1958). These cases are consistent "with the statutory provision:

A custody decree rendered by a court of this state which had jurisdiction under W.S. 20-5-104 binds all parties who have been served in this state or notified in accordance with W.S. 20-5-106 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made until that determination is modified pursuant to law.

WYO. STAT. § 20-5-113 (1997).

The principles 'articulated in these cases and set forth in the statute, to which no exception seems to be found, are more than sufficient to sustain the oral ruling of the trial court:

The Court also finds that the Court had jurisdiction to establish custody under the Uniform Child Custody and Jurisdiction Act, even in the absence of an affidavit or a specific pleading. The Court finds that there was an implication of jurisdiction because one party, one child, had significant contacts with the state, and that there was present here substantial evidence regarding the child’s future.

In making this ruling the trial court recognized the requirements of Wyo. Stat. § 20-5-110 (1997). Certainly, Wyoming attorneys should pay attention to that statute; and comply with it in any instance in which there may be a question of jurisdiction to adjudicate custody. In the absence of a record, however, I must assume that the trial court treated the pleadings as amended to conform with the evidence in accordance with WYO. R. CIV. P. 15.

Affirming the order of the trial court in this case is consistent with the, purposes of our statute as described in Wyo. Stat. § 20-5-102 (1997):

(a) The general purposes of this act are:
(i) To avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(ii) To promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(iii) To assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
(iv) To discourage continuing controversies over child custody in the interest of,greater stability of home environment and of secure family relationships for the child;
(v) To deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(vi) To avoid relitigation of custody decisions of other states in this state insofar as feasible;
(vii) To facilitate the enforcement of custody decrees of other states;
(viii) To promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
(ix) To make uniform the law of those states which enact it.
(b) The provisions of this act shall be construed to promote the general purposes stated in this section.

*499Affirming the trial court also would be consistent with the cases in which this court already has considered the Uniform Child Custody Jurisdiction Act. Wyo. Stat. § 20-5-101 to -125 (1997). Marquiss v. Marquiss, 837 P.2d 25 (Wyo.1992); Rosics v. Heath 746 P.2d 1284 (Wyo.1987); Quenzer v. Quenzer, 653 P.2d 295 (Wyo.1982) (overruled on other grounds); State ex rel. Klopotek v. District Court of Sheridan County, 621 P.2d 223 (Wyo.1980). State ex rel. Griffin v. District Court of Fifth Dist., 831 P.2d 233 (Wyo.1992), is distinguishable because of the fact that in that instance custody proceedings had been commenced in the home state. In,this case, the custody proceeding in Pennsylvania was not instituted until after the decree of divorce in Wyoming had become final.

While there is no question that it always is desirable to have a record, the absence of a record is one of the hazards that is encountered when one elects to not appear and answer and permit a judgment be taken by default. Under our law, the consequences of an absent record must be visited upon the appellant in this case, not on the trial court or the appellee. I would affirm the judgment of the trial court as consistent with the purposes of the statute and justified by the law of Wyoming.