Summary 2007 WY 4

Summary of Decision issued January 10, 2007

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Case Name: BB v. RSR

Citation: 2007 WY 4

Docket Number: C-06-5

Appeal from the District Court of Albany County, the Honorable Robert Castor, Judge

Representing Appellant (Respondent): John M. Burman, Faculty Supervisor; Alevtyna Popova, Student Director; Katrina Runyon, Student Intern; UW Legal Services Program, Laramie, Wyoming.

Representing Appellee (Petitioner): Kelly Neville Heck of Brown & Hiser, LLC, Laramie, Wyoming.

Issue: Whether the district court erred in denying Mother’s renewed motion for judgment on the pleadings. Whether the district court erred in finding a material change in circumstances allowing modification of child custody.

Holding: BB (Mother) appeals from the district court’s order modifying custody and child support. Mother and RSR (Father) are the parents of a daughter, born in 1995. In 1998, a default paternity order was entered adjudicating RSR as the father and granting physical custody to Mother. Father was ordered to pay child support and provide medical insurance. A visitation schedule was not established at that time. Seven years later, Father filed a second petition for modification seeking custody or, in the alternative, a liberal visitation schedule. Father sought production of Mother’s mental health records. Prior to trial, Mother filed a Motion for Judgment on the Pleadings claiming that Father’s general allegation in his petition that a material change in circumstances had occurred justifying a change in custody was insufficient to provide fair notice of his claim against her. The motion was denied. At trial, Mother renewed her Motion orally and it was denied as well.

Scope of the Record to be Reviewed: As Appellant, Mother was required to provide the Court with a sufficient record to allow proper evaluation of the trial court’s decision. The record contains the audio cassettes of the modification hearing and an “unofficial” transcription of those cassettes. The Court took time to point out the transcription was insufficient because it was not certified in accordance with W.R.A.P. 3.02(d). If a certified transcript is unattainable, an appellant may provide an adequate appellate record by complying with W.R.A.P. 3.03. The Court could have declined consideration of the unofficial transcript but because Father did not object to the state of the record and referred to the unofficial transcript throughout his appellate brief, the Court determined that review of the record as reflected by the unofficial transcript was appropriate.

Motion for Judgment on the Pleadings: Mother contends that Father failed to assert any issues of material fact to support the alleged material change in circumstances and as a result of the lack of specificity; she was unable to adequately prepare a defense. A pleading should give notice of what an adverse party may expect and issues should be formulated through deposition-discovery processes and pretrial hearings. The Court agreed with the district court that Father’s general allegation was sufficient to apprise Mother of the nature of the claim against her.

Modification of Child Custody: Father, as the party seeking modification of child custody, has the burden of establishing that a change in circumstances affecting the child’s welfare has occurred after the entry of the initial decree, that the change warrants modification of the decree and that the modification will be in the best interests of the child. The modification of a paternity decree respecting custody of a child lies within the sound discretion of the trial court. The Court views the evidence in the light most favorable to the district court’s determination. The admission of evidence is a matter left to the sound discretion of the district court. Evidentiary rulings will not be disturbed on appeal unless a clear abuse of discretion is demonstrated. As the appellant, Mother has the burden of directing the Court’s attention to those parts of the record on which she relies. Vague assertions unsupported by the record do not comply with the requirements of W.R.A.P. 7.01(f)(1). The Court pointed out the district court decision letter showed it had appropriately based its decision upon the changes in circumstances occurring after entry of the 1998 order.

Mother challenged the district court’s order requiring production of her mental health records. Despite the order, Mother failed to produce the records. The district court did not rely upon them in making its custody determination. The Court did not need to address Mother’s contention on the merits because regardless of whether the district court erred in ordering production of her records, Mother could not have established any prejudicial error.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/y37z6h .