Summary 2010 WY 149

Summary of Decision November 18, 2010

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Case Name: Willis v. Davis

Citation: 2010 WY 149

Docket Number: S-10-0066

URL: http://tinyurl.com/264plpa

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

Representing Appellant (Defendant): Alex H. Sitz III of Meinecke & Sitz, Cody, Wyoming

Representing Appellee (Plaintiff): Matthew D. Winslow of Keegan & Winslow, , Cody, Wyoming.

Date of Decision: November 18, 2010

Facts: Appellee Father and Appellee Mother were divorced by decree awarding Father primary physical custody of the children and giving Mother liberal visitation. A year later, Father filed a motion for an order requiring Mother to show cause why she should not be held in contempt for violating provisions of the decree. Mother responded with her own motion for an order requiring Father to show cause why he should not be held in contempt for decree violations. In her motion, Mother also requested custody modification. After a hearing, the district court entered an order declining to hold either party in contempt and denying Mother’s request for custody modification. Mother did not appeal from that order. Nine days later, Mother filed a motion to modify custody. Father moved to dismiss arguing that the motion was barred by the doctrine of res judicata because the district court had just heard and ruled on a request by Mother for custody modification. The district court granted the motion to dismiss.


Issues: Whether the district court erred when it applied the doctrine of res judicata to her Motion to Modify Custody.


Holdings: Four factors must exist for res judicata to apply: 1) the parties must be identical; 2) the subject matter must be identical; 3) the issues must be identical and relate to the same subject matter; and 4) the capacities of the persons must be identical in reference to both the subject matter and the issues between them. As a general rule the doctrine of res judicata applies to divorce decrees. However, Wyoming law recognizes that custody modification is sometimes necessary. Thus, a district court in this state that enters a custody order in a divorce proceeding has continuing subject matter jurisdiction to enforce or modify custody upon petition by either parent. The party seeking to modify custody bears the burden of establishing that a material change in circumstances has occurred since the entry of the previous custody determination and that the modification would be in the best interests of the children.

In the present case, in Mother’s response to Father’s supplement to motion for order to show cause, filed five months before the hearing, Mother prayed for an order requiring Father to show why he should not be held in contempt and “for a modification of custody.” The record, therefore, is clear that Mother requested custody modification, thereby placing the matter at issue. The record is also clear that the district court considered Mother’s custody modification request to be at issue during the contempt proceedings. Given Mother’s request for custody modification and the district court’s ruling on her request, there is no question the matter was raised and decided at the prior hearing. To warrant another hearing on the issue, Mother had to allege that a material change in circumstances occurred after the entry of the previous order. Mother’s later motion does not specifically make that allegation. Rather, it appears to allege a material change of circumstances since the entry of the divorce decree. Although the allegations Mother made against Father in the more recent motion were different from those she presented in her earlier motions, there is nothing in the record indicating these were new allegations that arose after the district court’s ruling. Because the record submitted to the Court does not include a hearing transcript or another statement of the evidence presented at the hearing, there is no way of knowing what allegations and evidence Mother presented against Father in support of her initial custody modification request.
Mother, as the appellant, had the burden to submit a sufficient record from which the Court could decide the issues presented. Without a transcript of the hearing or other statement of evidence, the Court will accept the district court’s finding and conclusion that the issues Mother presented in her later motion were identical to those heard at the earlier hearing and decided by the prior order.

Mother also maintains the dismissal of her custody modification motion denied her due process because she did not have an adequate opportunity in the earlier hearing to present evidence and argument supporting her request for modification of custody. Any contention that Mother was denied due process in the earlier hearing properly should have been presented to this Court by way of appeal from the earlier order. Mother did not appeal from that order.

Affirmed.

C.J. Kite delivered the opinion for the court.