Summary 2013 WY 161

Summary of Decision December 27, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: KELLY SUZANNE BRUSH, f/k/a KELLY SUZANNE DAVIS v. ROGER RYAN DAVIS

Docket Number: S-13-0081

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: John D. Chambers, Casper, Wyoming.

Representing Appellee: Roger Ryan Davis, pro se.

Date of Decision: December 27, 2013

Facts: The district court modified custody and support for the parties’ minor child. Appellant Kelly Suzanne Brush f/k/a Kelly Suzanne Davis (Mother) appeals, claiming the district court did not have jurisdiction to grant a change of custody or support, she was denied due process of law when a default judgment was entered against her, and the district court abused its discretion when awarding child support.

Issues: I. Whether the district court lacked subject matter jurisdiction to grant a default judgment due to Appellee’s failure to comply with the statutory pleading requirements? II. Whether the Appellant was denied due process when default was improperly entered against her and subsequently, improperly upheld against Appellant? III. Whether the District Court abused its discretion in entering a child support [order] due to its failure to comply with statutory child support requirements?

Holdings/Conclusion: The district court had subject matter jurisdiction over Father’s petition. In the absence of a basis to set aside the default judgment, Mother was given the process she was due. The district court’s decision was reasonable under the circumstances; therefore, it did not abuse its discretion. Affirmed.

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]

Summary 2013 WY 132

Summary of Decision October 17, 2013

Justice Davis delivered the opinion for the Court. Reversed and remanded for entry of proper award, affirmed on all other issues.

Case Name: JERRY D. WALKER v. JACI S. WALKER

Docket Number: S-13-0063

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Richard “Zak” Szekely, Casper, Wyoming.

Representing Appellee: No appearance.

Date of Decision: October 17, 2013

Facts: Appellant Jerry D. Walker (Father) filed a motion seeking primary residential custody of his daughter. Appellee Jaci S. Walker (Mother), who was the primary residential custodian under the parties’ divorce decree, opposed a change of custody and sought an increase in child support based on a claimed increase in Father’s income. The district court denied Father’s motion for a change of custody, finding no material change in circumstances. However, it found that Mother had proven that she was entitled to an increase in child support. It also awarded her a judgment for Father’s share of the child’s medical and other expenses she had paid.

Issues: 1. Did the district court err in finding that Mother was entitled to an increase in child support? 2. Did the district court have authority to award a judgment in any amount? 3. Did the district court err in failing to credit Father with payments he had made if it did have authority to award a judgment? 4. Did the district court abuse its discretion in denying Father’s motion for a change of custody because it

Holdings/Conclusion: We find the district court’s child support calculation to be erroneous as a matter of law, and we therefore reverse and remand for appropriate proceedings to correct the error. The district court’s order is affirmed in all other respects.

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]

Summary 2013 WY 121

Summary of Decision October 2, 2013

District Judge Day delivered the opinion for the Court. Affirmed.

Case Name: JESSICA L. TAFOYA v. PAUL W. TAFOYA

Docket Number: S-13-0011

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Plaintiff/Defendant): Zenith S. Ward and Curtis B. Buchhammer, Buchhammer & Kehl, P.C., Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Donna D. Domonkos, Cheyenne, Wyoming.

Date of Decision: October 2, 2013

Facts: Jessica L. Tafoya (Mother) and Paul W. Tafoya (Father) divorced in 2012. In the divorce decree, the trial court awarded Father (living in Wyoming) primary custody of the parties’ child with liberal visitation to Mother (living in New Mexico). Upon Father’s motion, the reviewing district court[1] later entered an order clarifying the decree regarding who was obligated for transportation costs relative to visitation. Mother appeals from that order, claiming the order improperly modified or otherwise improperly clarified the divorce decree. Father maintains that the order did not amount to a modification and that the order correctly clarified the decree.

Issues: The dispositive issue in this appeal is whether the district court properly clarified the decree pursuant to W.R.C.P. 60(a).

Holdings: The Decree of Divorce incorporated a Standard Visitation Order. Taken together, the visitation cost provisions contained in the body of the decree and the visitation order presented a patent ambiguity. In its order granting Father’s motion to clarify, the district court properly employed Rule 60(a) to clarify the ambiguity and correctly clarified the decree according to the contemporaneous intent of the trial court. Affirmed.

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]

Summary 2008 WY 6

Summary of Decision issued January 23, 2008

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

Case Name: Barnes v. State

Citation: 2008 WY 6

Docket Number: 06-285, 06-286

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Willms, Assistant Attorney General; Kristen Dolan, Assistant Attorney General.

Facts/Discussion: Appellant pled no contest to possession of cocaine with intent to deliver, but reserved his right to appeal the district court’s denial of his motion to suppress statements he made to police before his arrest. In a consolidated appeal, he also claimed the district court erred in concluding he was not entitled to credit for time served while he was awaiting disposition of the possession charge and another unrelated charge. The district court declined to give him credit for time served because he had violated the conditions of his parole in a different matter and was incarcerated partly because he was awaiting a parole revocation hearing.
Order Denying Motion to Suppress Statements: Appellant contended that he made his statements during a custodial interrogation but the State argued the statements were made during a valid investigatory stop and were prompted by Appellant’s medical complaints.
Investigatory Stop v. Custodial Interrogation: The Court reviewed the record and noted that no one factor necessarily establishes custody for Miranda purposes. Although only one officer was present and the questioning lasted a few moments in a neutral setting, Appellant had been forcibly taken to the ground and placed in handcuffs when he was asked about the substance in the bags. The Court stated it was likely, a reasonable person in Appellant’s position would have considered himself to be in police custody.
Public Safety Exception to Miranda: Once Appellant began complaining of dizziness and shortness of breath, the detective’s questions were necessary to protect him from harm. The Court stated that under the particular circumstances in question, the detective’s actions before arresting Appellant and without Miranda warnings was reasonable.
Denial of Credit for Time Served: A defendant is entitled to credit for time spent in pre-sentence confinement against both the minimum and maximum sentence if he is unable to post bond for the offense of which he was convicted but not when his confinement would have continued despite his ability to post bond. Neither the parole board nor the district court credited Appellant for the time served between his arrest and sentencing. The parole board’s failure to credit for time served resulted in an unlawful sentence. To cure the error, the Court reversed the sentence and remanded to district court with instructions to give credit for time served.

Holding: The district court’s order denying the suppression motion was affirmed. The case was remanded for correction of the judgment and sentence.

Affirmed in part, reversed and remanded in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/3632s9 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 174

Summary of Decision issued November 2, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

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.

Link: http://tinyurl.com/2549z7 .

Summary 2007 WY 92

Summary of Decision issued June 5, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: In the Interest of L.L., A.L., M.L. and N.C.:M.L. v. Laramie County Dep’t of Family Services

Citation: 2007 WY 92

Docket Number: C-06-8

Appeal from the District Court of Laramie County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): John M. Burman, Faculty Supervisor and Tina Popova, Student Director, UW Legal Services Program; and Scott A. Homar, Cheyenne, Wyoming. Argument by Ms. Popova. (Order granting Motion allowing Scott A. Homar to withdraw as counsel entered Nov. 16, 2006.)

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Jill E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.

Issue: Whether the district court erred when it permitted the GAL from previous neglect cases involving Mother and her children to testify at the termination of parental rights hearing, wherein the witness was not appointed as a GAL. Whether clear and convincing evidence existed to justify terminating Mother’s parental rights.

Facts/Discussion: The district court terminated Mother’s parental rights to four of her children after a two-day hearing. Mother now appeals the district court’s ruling.
Standard of Review: Decisions concerning the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statutes for termination of parental rights is a matter for strict scrutiny.
Whether the district court erred when it allowed Mr. Frentheway to testify: Mother argued that Mr. Frentheway acted as a GAL in the case because of his status as GAL in previous proceedings, even though the district court did not appoint him. He was not appointed as a GAL in the termination proceeding and his role was that of a witness therefore he had no responsibility to the court, the children, or Mother greater than that of any other factual witness at a trial. The Court found there was no per se error in allowing Mr. Frentheway to testify.
The Court then considered whether the district court erroneously allowed Mr. Frentheway to testify regarding inadmissible opinion evidence. The Court reiterated that lay witnesses may give opinion evidence regarding matters that are rationally based on their perceptions and helpful to the trier of fact. The Court reviewed the record and was satisfied that the testimony conveyed his opinion that visits with Mother were causing problems for the children in adjusting their lives when she was not around.
Mother’s argument of unfair prejudice as a result from such testimony did not stand because the Court found no error in allowing Mr. Frentheway to testify as a lay witness.
Whether clear and convincing evidence supported the district court’s decision to terminate Mother’s parental rights: Two elements must be proven by clear and convincing evidence under Wyo. Stat. Ann. § 14-2-309(a)(v) in order to divest parents of their rights to their children. First it must be shown that the children had been under the responsibility of the state for 15 out of the most recent 22 months. It was undisputed that all the children had been in foster care for 15 out of the most recent 22 months. The Court reviewed the record and determined that the evidence proving whether Mother was unfit was clear and convincing.

Holding: The district court did not err in allowing Mr. Frentheway to testify in the instant case and clear and convincing evidence supported the termination of Mother’s parental rights to LL, ML, AL, and NC.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2s5f3t .

Summary 2007 WY 84

Summary of Decision issued May 21, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Gray v. Pavey

Citation: 2007 WY 84

Docket Number: 06-277

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge

Representing Appellant (Respondent): Cole N. Sherard, Wheatland, Wyoming.

Representing Appellee (Petitioner): James A. Hardee, Douglas, Wyoming.

Issue: Whether the district court abused its discretion by awarding custody of the parties’ minor child (C.G.) to her father, John Pavey.

Facts/Discussion: Mother (Gray) appeals from an order modifying child custody.
Standard of Review: The Court reviews a district court’s order on a petition to modify custody, visitation, and child support for an abuse of discretion.
Father bore the burden of demonstrating that a material and substantial change of circumstances affecting the child’s welfare has occurred and the modification would be in the child’s best interest. The Court reviewed the record and found there was sufficient evidence presented to demonstrate a material change in circumstances and that an award of primary custody to Father was in the best interests of the child. The district court heard evidence favorable and unfavorable to both parents.

Holding: After considering all of the evidence before it, the district court determined that Father was better able to provide an environment which could meet C.G.’s emotional, developmental, and educational needs. Sufficient evidence existed in the record to support the decision. As a result, the Court could not say that the court abused its discretion in this matter.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/38xye8 .

Summary 2007 WY 73

Summary of Decision issued May 3, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: FML v. TW

Citation: 2007 WY 73

Docket Number: C-06-7

Appeal from the District Court of Washakie County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Respondent): DaNece Day of Lubnau, Bailey & Dumbrill, PC, Gillette, Wyoming.

Representing Appellee (Petitioner): Thomas W. Harrington of Davis & Harrington, PC, Worland, Wyoming.

Issues: Whether the trial court committed reversible error by failing to establish visitation that includes details necessary to promote understanding and compliance as required by Wyo. Stat. Ann. § 20-2-202. Whether the trial court abused its discretion by placing more weight on the Mother’s violation of the existing order than other factor’s affecting the best interests of the child as set forth by Wyo. Stat. Ann. § 20-2-101(a).

Facts/Discussion: Mother sought review of an order of the district court which granted Father’s Motion to Modify Custody.
Appealable Order: The Court decided on its own motion to consider whether the order form which the appeal was taken was appealable. The Court was satisfied the instant case involved a special proceeding as contemplated by W.R.A.P. 1.05.
Abuse of District Court’s Discretion: Modification of custody is governed by Wyo. Stat. Ann. § 20-2-204. The Court did not have a properly authenticated transcript before it which restricted their review to those assertions of error not requiring inspection of the transcript. Therefore the regularity of the trial court was presumed. The Court affirmed the district court’s decision to modify custody.
Visitation Detail and Child Support: The district court had not yet established a detailed visitation plan. The Court remanded the case to the district court to address the task of establishing a visitation plan and possibly establishing support.

Holding: The Court determined the order form from which the appeal was taken was an appealable order. The Court did not have a properly authenticated transcript before them so the regularity of the trial court’s judgment was presumed. The district court had not yet established a detailed visitation plan which was needed in the case. Support had not yet been established either. The Court ordered that portion of the case remanded.

The order modifying custody was affirmed. The case was remanded to the district court for further proceedings consistent with the opinion.

J. Hill delivered the decision.
Link: http://tinyurl.com/279eaz .

Summary 2007 WY 61

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Wild v. Adrian

Citation: 2007 WY 61

Docket Number: 06-183

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

Representing Appellants (Petitioners): Sean W. Scoggin of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Appellee (Defendant): Raymond D. Macchia and Julianna Hernandez of Macchia & Assoc., Cheyenne, Wyoming.

Issues: Whether the district court properly denied the Wilds’ petition to intervene in the divorce proceeding.

Facts/Discussion: Bryan and Karen Adrian were divorced in 2002. The district court awarded the parties joint legal custody and Mr. Adrian primary physical custody of their two children. The children lived with their father until 2005 when, due to his military service assignment, he placed them in the custody of Shannon and Vincent Wild. After Mr. Adrian died in 2006, the Wilds sought to intervene in the divorce proceeding to have the custody order modified to award them custody of the children. Alternatively, they sought appointment as guardians of the children.
Standard of Review: The decision whether to grant or deny a motion to intervene as of right involves mixed questions of law and fact. The Court reviews questions of law de novo and defers to the district court’s factual findings unless they are clearly erroneous.
The Right to Intervene: The Wilds alleged that they had standing to request modification of the custody order pursuant to Wyo. Stat. Ann. § 20-2-203(a) because at the time they had filed their petition they had acted as parents for the children and the children had been in their physical custody for at least the last six months. On appeal, they claimed they were entitled to intervene pursuant to W.R.C.P. 24(a)(2) or (b)(2). The interest claimed by an applicant seeking to intervene as of right must be a significant protectable interest. A contingent interest will not suffice. The Court concluded they did not have such an interest and the district court properly denied their motion to intervene.
The Court referred to their decision in MBB v. ERW where they held that only those persons specifically granted standing by statute could petition the court to modify a child custody order. Their holding in MBB applied in the instant case where non-parents sought to obtain custody of children.
The Wild’s sought permissive intervention which faced the same difficulties as their claim for intervention. Under Wyoming law, a non-parent does not have standing to request modification of a custody order.
Alternatively, the Wilds sought to be appointed as guardians of the Adrian children. The Court found no statutory authority or judicial authority in Wyoming allowing a non-parent to intervene in a divorce proceeding for the purpose of being appointed as guardian for the children from the marriage.
The Wilds also claimed that it was error for the district court to deny their petition without a hearing. The Court’s research indicated a court may deny a request for an evidentiary hearing when it is clear from the record that the petitioner is not entitled to intervene.

Holding: The Court concluded it was clear from the record that the Wilds were not entitled to intervene in the Adrian divorce proceeding. Therefore the district court did not err in denying the Wilds’ petition to intervene without a hearing.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2zdsrs .

Summary 2007 WY 17

Summary of Decision issued January 30, 2007

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Davis f/k/a/ Gill v. Gill

Citation: 2007 WY 17

Docket Number: 06-88

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Plaintiff): Lisa M. Barrett of Buchhammer & Kehl, P.C., Cheyenne, Wyoming.

Representing Appellee (Defendant): Matthew Gill, pro se.

Issue: Whether the district court had jurisdiction to modify a Guam court’s child custody, support, and visitation decree.
Facts/Discussion: Mother and Father obtained a divorce in Guam where the parties were awarded joint custody of their two minor children with physical custody alternating annually between Mother and Father. Mother appeals an order of the district court finding it had no jurisdiction to modify a custody decree entered by the superior court of Guam on October 28, 2004.
Whether a court has subject matter jurisdiction is a question of law the Court reviews de novo. The Court has stated the Parental Kidnapping Prevention Act (PKPA) constitutes federal preemption of custody matter. Based on the plain language of the PKPA, (1) both Wyoming and Guam are “states” within the meaning of the act; (2) before modifying another state’s custody determination under the PKPA, the modifying state must have subject matter jurisdiction; and (3) the original decree state must either decline or be divested of jurisdiction.
The Court relied on Wyo. Stat. Ann. § 20-5-104 read in conjunction with § 20-5-115 to reach the conclusion that Wyoming can modify a child custody decree of another jurisdiction if (1) the district court had home state or best interest jurisdiction, and (2) Guam was no longer able to exercise the same jurisdiction.
Holding: The Court previously recognized the PKPA changed the UCCJA to create a decree state preference in modification matters. The decree state preference is not absolute, however the Court agreed with the district court that the children had sufficient contacts with Guam to allow continuing jurisdiction in its courts, absent relinquishment of jurisdiction by those courts. The Guam court evidenced its intent to retain jurisdiction over its decree by issuing an order to show cause on September 7, 2005, nearly four months after Mother filed her motion to modify the original decree. It was clear the district court in the instant case did not err when it found it did not have jurisdiction to modify the Guam custody decree.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yq7644 .