Thursday, March 07, 2013

Summary 2013 WY 27

Summary of Decision March 7, 2013

Justice Voigt delivered the opinion for the Court. Affirmed in part and reversed in part. Justice Burke concurred in part and dissented in part, with whom Chief Justice Kite joins.


Docket Number: S-12-0080, S-12-0083


Appeal from the District Court of Laramie County, Honorable T.C. Campbell, Judge

Representing Appellant (Plaintiff/Defendant): Brandon L. Jensen, pro se, of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Wallace L. Stock and Lance T. Harmon of Bailey, Stock & Harmon P.C., Cheyenne, Wyoming.

Date of Decision: March 7, 2013

Facts: Brandon Lee Jensen, the appellant (Father), and Margaret E. Milatzo-Jensen, the appellee (Mother), divorced in 2007. In the litigation that followed the divorce, the district court granted Mother’s motion to modify the visitation schedule, denied Father’s request to present expert testimony, denied Father’s claims for child support abatement, denied Father’s petition to modify child support, partially reimbursed Father’s day-care expenses, and awarded attorney’s fees to Mother. Father now appeals those orders.

Issues: Did the district court abuse its discretion by modifying Father’s visitation schedule? Did the district court abuse its discretion by denying Father’s request to present the testimony of two expert witnesses? Did the district court err by denying Father’s claims for abatement of child support? Did the district court abuse its discretion by denying Father’s Petition to Modify Child Support? Did the district court abuse its discretion by not fully reimbursing Father for day-care expenses? Did the district court abuse its discretion in its award of attorney’s fees against Father?

Holdings: Father’s move to Colorado, which substantially disrupted the visitation schedule and substantially impacted the child’s life, represented a substantial change in circumstances sufficient to address whether a modification in the visitation schedule would be in the best interest of the child. Because of the long and frequent commutes, and the stress incurred by the child, the district court did not abuse its discretion in determining that a modification was appropriate. Father did not show on appeal that the district court abused its discretion in excluding an expert witness with a potential conflict of interest and limiting the testimony of another expert witness by permitting her only to testify with regard to matters in dispute. Father meets the statutory requirements for abatement in child support. We remand to the district court for a determination of the appropriate amount of that abatement. Because we affirm the modification to the visitation schedule, which results in a reduction in Father’s time with the child, Father is not entitled to application of the shared custody support calculation provided in Wyo. Stat. Ann. § 20-2-304(c). The district court abused its discretion by only partially reimbursing Father for day-care expenses because the divorce decree did not require Father to pay any day-care expenses while he was paying child support. The district court also abused its discretion in its award of attorney’s fees against Father because Mother presented insufficient evidence indicating that the fees requested were reasonable. Affirmed in part, reversed in part, and remanded to the district court for further appropriate action consonant herewith.

Justice Burke concurred in part and dissented in part, with whom Chief Justice Kite joins. See the full opinion for further comment.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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