Summary 2008 WY 41

Summary of Decision issued April 9, 2008

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Case Name: Everitts v. InInns

Citation: 2008 WY 41

Docket Number: S-07-0153

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): Matthew F.G. Castano, Brown & Hiser, Laramie, Wyoming

Representing Appellee (Plaintiff): Lea Kuvinka, Kuvinka & Kuvinka, Jackson, Wyoming

Date of Decision: April 9, 2008

Issues: Whether a court may modify a divorce decree without a party filing a petition for modification and a finding of material change of circumstances.

Whether in the course of interpreting this Decree of Divorce and Settlement Agreement, the district court impermissibly considered evidence beyond the four corners of the document.

Facts: Appellant filed a petition pursuant to Wyo. Stat. 20-2-204 (2007) to require Appellee to appear before the court and show just cause why she should not be held in contempt for willfully violating the court’s order concerning the care, custody and visitation of their son. Appellee responded to Appellant’s petition, denying the bulk of his allegations. Appellee asked the district court to order mediation. The district court entered an order requiring the parties to mediate their disputes. Subsequently, Appellee filed a motion to dismiss Appellant’s petition, essentially contending that things remained about the same as they had been at the time of the divorce, and that the schedule agreed to by the parties at the time of the divorce should remain in force. Appellant filed a motion opposing Appellee’s motion, essentially contending that his employment had changed and that Appellee refused to meaningfully try to accommodate his overseas work schedule. A hearing was held but it was not reported so it is not known what transpired. The district court issued an order after the hearing finding that there were no grounds to hold Appellee in contempt of Court and dismissing the Appellant’s Petition to Show Cause. It was also determined that the parties were to continue following the schedule outlined in the Settlement Agreement and that unless otherwise agreed by the parties, the regular schedule shall not be changed to make-up for time missed, including holidays. The court also encouraged the parties to continue mediating with regard to the schedule.

Holdings: An order originating in a contempt proceeding, which does not even purport to find a party in contempt is interlocutory only and therefore not appealable. However, in the case at hand, the court’s order goes beyond just denying Appellant’s request that Appellee be found in contempt. Although it appears on the face of things that the district court merely iterated provisions of the original decree, absent a transcript that is not a certainty. It was Appellant’s burden to bring the court a complete record upon which to base a decision. It must be assumed that the transcript of that hearing would support the district court’s resolution of this case. The district court’s order is affirmed because the absence of a transcript of the hearing will permit no other result.

The district court’s order is affirmed.

J. Hill delivered the opinion for the court.