Summary 2007 WY 174

Summary of Decision issued November 2, 2007

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Case Name: Morris v. Morris

Citation: 2007 WY 174

Docket Number: S-07-0035

Appeal from the District Court of Campbell County, Honorable Dan R. Price, II, Judge

Representing Appellant (Defendant): DaNece Day of Lubnau & Bailey, Gillette, Wyoming.

Representing Appellee (Plaintiff): Matthew R. Sorenson and Rebecca L. Falk of Daly Law Associates, LLC, Gillette, Wyoming.

Date of Decision: November 2, 2007

Issues: Whether the trial court abused its discretion by finding that the changes that had occurred following the parties divorce were not material pursuant to Wyo. Stat. 20-2-204(c).

Standard of Review: The Court will not interfere with the trial court’s decision regarding modification of custody absent a procedural error or a clear abuse of discretion.

Facts/Discussion: A district court’s authority to modify the custody provisions of a divorce decree is found in Wyo. Stat. Ann. § 20-2-204(c) (2007). Under the statute, the party seeking modification of the child custody provisions of a decree has the burden of establishing that a material change in circumstances which affects the children’s welfare has occurred since the decree was entered, the change justifies modification of the decree and modification would be in the children’s best interests. In the present action, the district court found that although there had been changes of circumstances since the most recent order in this case, the changes did not warrant modification of the decree as to child custody and visitation. A district court’s finding concerning a material change in circumstances is principally a factual determination to which great deference is accorded.
Appellant claims a material change of circumstances occurred because Appellee failed to comply with the “Mandatory Provisions” of the divorce decree. The district court’s appraisal was a reasonable assessment of the evidence in the case; consequently, the district court did not abuse its discretion by refusing to find that Appellee’s communication failures constituted a material change of circumstances.
Proof of repeated, unreasonable failures by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances. However, the record in the present action did not establish that Appellee repeatedly violated the visitation provisions of the decree. After reviewing the evidence, the district court did not deem there to be a material change in circumstances. That was not an abuse of discretion.
Children’s changes in behavior are legitimate considerations in the material change in circumstances inquiry. The record shows Appellee was having trouble with the children. However, it is also clear from the record that she sought help for the children’s problems and the efforts of both Appellant and Appellee were effective in resolving those problems. The district court did not abuse its discretion by failing to consider the children’s emotional issues as a material change of circumstances to justify a custody modification.
The fact that Appellee moved frequently after the divorce is another circumstance to which Appellant directs our attention. However, where the custodial parent’s motivation is legitimate, sincere, and in good faith and reasonable visitation by the other parent is still possible, relocation, alone, will not be considered a material or substantial change of circumstances to justify a change in custody. In order to avoid scrutiny by the court, the relocation must be made with proper motivations and not to undermine the relationship between the noncustodial parent and the children. In the present action, the court is not concerned with the effect Appellee’s relocations had on Appellant’s ability to exercise his visitation with the children because Appellant also relocated to places far enough away to make regular visitation impractical. There was no indication in the record that Appellee’s motivations for the moves were in order to undermine the relationship between Appellant and the children. She moved to secure better employment and/or to be closer to family and friends, who often helped her care for the children. In addition, Appellant’s failure to regularly pay his child support contributed to her reasons for moving. Thus, her moves were not made in bad faith, and the district court did not abuse its discretion when it refused to find a material change of circumstances on that basis.
Appellant also pointed to Appellee’s numerous romantic relationships as evidence of her instability as a parent. It was the district court’s responsibility to weigh the evidence and determine the credibility of the witnesses. The district court’s interpretation of the evidence and reliance on the recent stabilization of Appellee’s personal situation was not an abuse of discretion.
Appellant presented several ancillary arguments to support his position that he successfully established a material change of circumstances. The decision letter clearly showed the district court took these matters into account and still determined Appellant had not established a material change of circumstances. Both parents had other children living in their households. The fact that both parties have either remarried or are about to remarry is simply a factor to be expected. Appellant has failed to show that the district court abused its discretion by refusing to consider these matters as a material change of circumstances.
Finally, Appellant claimed that the cumulative effect of these circumstances justifies a finding of a material change in circumstances. However, in this case, the district court did not believe all of the factors together justified a finding that a material change of circumstances had occurred. That ruling cannot be faulted. Ultimately, the evidence, established that, despite having experienced a great deal of instability in their lives since the divorce, at the time of the trial the boys were healthy, well-behaved children who were generally doing well in school and living in a stable home with their Appellee, her fiancé and their new baby.

Holding: Under the principles of res judicata, a court does not have the discretion to reopen a custody order simply because, looking at the best interests of the child, it believes it can make a better decision than was made in the prior custody order. Appellant, thus, had the burden of establishing a material change of circumstances before the best interest analysis was appropriate.
On the record, the district court could have reasonably concluded Appellant failed to establish a material change of circumstances. Consequently, it did not abuse its discretion by denying Appellant’s request for a change of custody.

Affirmed.

J. Kite delivered the opinion for the court.

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