Summary 2010 WY 115

Summary of Decision issued August 10, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Roemmich v. Roemmich

Citation: 2010 WY 115

Docket Number: S-10-0008

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Kari Roemmich: Stacy E. Casper of Casper Law Office, LLC, Casper, Wyoming.

Representing Shane Roemmich: Nick Edward Beduhn of Goppert, Smith & Beduhn, Cody, Wyoming.

Facts/Discussion: When shared physical custody of their child failed, Kari Roemmich (Mother) filed a petition for custody modification seeking primary physical custody of the child with reasonable visitation for Shane Roemmich (Father). After a hearing on the petition, the district court awarded Father primary physical custody with reasonable visitation by Mother and ordered Mother to pay child support.

Requirements for modifying joint custody: In Harshberger the Court reiterated the rule in Wyoming that when both parents inform the court that a joint physical custody arrangement is not working, a sufficient change in circumstances justifying the reopening of the custody order has been presented to the district court. The district court was required pursuant to § 20-2-204(c) to determine what custody arrangement was in the child’s best interest.
Witness and exhibit designations: Father did not provide witnesses and exhibits to Mother within the thirty day limit set by W.R.C.P. 37. The district court determined that it was in the child’s best interest to allow Father to present his evidence while acknowledging that allowing it would be somewhat prejudicial to Mother.
Stalking protection order: Beyond summarizing the testimony from Father and Mother about the incidents leading to the protection order filed by Mother, the district court made no finding on the issue of spousal abuse and did not appear to have weighed it as a factor in determining the child’s best interest. While there was no question that Father harassed Mother by cell phone and that the parties fought on two occasions in the presence of the child, the Court concluded the district court reasonably could have determined from the totality of the evidence that the admitted harassment and alleged abuse was not sufficient to override the other factors it was required to consider in determining custody.
Findings contrary to the evidence: The district court’s decision letter confirmed Mother’s contention that it incorrectly assumed she would continue working nights. However, the letter reflected that the assumption was not the only or even a primary factor in its determination to award primary custody to Father. The incorrect assumption was not sufficient to establish that the district court abused its discretion in awarding primary custody to Father.
Visitation: The district court’s order did not address holiday and summer visitation. The parties agreed concerning holiday and summer visitation so it was appropriate to remand to the district court for entry of a revised order providing for visitation by Mother.
Child support: For reasons that do not appear in the record, the district court did not calculate child support using the net income imputed to Mother in the divorce decree. On remand, the district court will need to recalculate Mother’s child support obligation based on the parties’ respective incomes as incorporated in the divorce decree, or request the parties to submit financial affidavits.

Conclusion: The district court’s modification order awarding primary physical custody to Father was affirmed. The case was remanded to the district court for a revised order setting out holiday and summer visitation and calculating child support.

Affirmed custody and remanded visitation and child support.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/22jnuew .

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