Summary 2012 WY 167

Summary of Decision December 28, 2012

Justice Burke delivered the opinion for the Court. Reversed and remanded.

Case Name: JEFFREY R. ARNOTT v. PAULA a/k/a POLLY A. ARNOTT

Docket Number: S‑12-0089

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

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge

Representing Appellant (Plaintiff/Defendant): Leah K. Corrigan and James K. Lubing, Lubing & Corrigan, LLC, Jackson, Wyoming.

Representing Appellee (Plaintiff/Defendant): Anne B. Ashley, Anne B. Ashley, LLC, Jackson, Wyoming.

Guardian Ad Litem: Steven R. Dwyer, The Law Office of Steven R. Dwyer, LLC, Jackson,Wyoming.

Date of Decision: December 28, 2012

Facts: Appellant, Jeffrey Arnott (Father), challenged the district court’s order denying his petition for modification of the parties’ divorce decree, which granted primary physical custody of the parties’ two daughters to Appellee, Paula (“Polly”) Arnott (Mother). Father sought modification of custody after Mother gave notice of her intention to relocate to Virginia with the children. Relying on this Court’s decision in Watt v. Watt, 971 P.2d 608, 614 (Wyo. 1999), the district court applied a “strong presumption in favor of the right of a custodial parent to relocate with her children” and determined that Father had failed to establish a material change in circumstances warranting an analysis of whether modification would be in the best interests of the children. On appeal, Father contended that our decision in Watt should be overturned. He asserted that application of that precedent undermines his constitutionally protected parenting rights and the state’s interest in promoting the best interests of the children.

Issues: Father presented the following issues for our consideration:

1. Did the District Court err when it determined that this Court’s holdings in Watt and Resor foreclosed a determination that an interstate relocation can give rise to a substantial change in circumstances sufficient to consider a custody modification?

2. In the alternative, and as a matter of first impression, did the District Court’s application of Watt and Love violate the Father’s fundamental constitutional right to raise his children?

3. Also in the alternative, to the extent the District Court did not err in its interpretation of Watt, and the Watt standard is retained as constitutional, did the District Court exceed the bounds of reason in deciding that the Mother’s move of 2,140 miles still allows for reasonable visitation for Father?

Mother stated the issues as follows:

1. Was the District Court correct in determining that an interstate relocation by the primary custodial parent, standing alone, does not constitute a material and substantial change in circumstances sufficient to modify custody under Wyoming law?

2. Did the District Court correctly determine that the custodial parent’s motives for relocating were legitimate, sincere and in good faith?

3. Did the District Court correctly determine that reasonable visitation is still available to the non custodial parent after relocation?

Holdings: The Court agreed and held that application of a presumption favoring the relocating custodial parent should not be applied in determining whether there has been a material change in circumstances. To the extent that our decision in Watt mandates application of such a presumption, it is hereby overturned. Because the district court applied this presumption in determining that Father had failed to meet his burden of proving a material change in circumstances, the Court reversed and remanded for further proceedings consistent with this opinion.

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 2010 WY 59

Summary of Decision issued May 7, 2010

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

Case Name: Zupan v. Zupan

Citation: 2010 WY 59

Docket Number: S-09-0127

Appeal from the District Court of Hot Springs County, the Honorable Dan Spangler, Judge.

Representing Mother: Wendy Sweeny, Worland, Wyoming.

Representing Father: Michael S. Messenger and Bobbi Overfield, Messenger & Jurovich, PC, Thermopolis, Wyoming.

Facts/Discussion: Mother appealed the post-divorce order in which the district court found that with slight changes, the best interests of the parties’ children were being served by the existing shared custody and visitation plan; that no grounds to modify the prior custody arrangement existed; and that Father was not in contempt for violating the Decree.

The shared custody arrangement: Wyoming statute specifically allows the district court to arrange a shared custody plan which it finds to be in the best interests of the children. Mother fundamentally disagreed with the district court’s determination to continue with the custody arrangement that had been in place for the minor children for the previous five years subject to slight modification. A review of the district court’s findings revealed that all relevant factors were thoughtfully analyzed and carefully weighed in discerning the best interests of the children.
Father’s relationships with is other children and grandchildren: Mother pointed to Father’s past aggressiveness with his daughter from a prior relationship and his overall inability to deal with teenagers based on his relationships with his other children. The record showed that the trial court accepted the testimony on the issue presented. The district court’s findings lead to the conclusion that the evidence was obviously considered and given appropriate weight.
Travel or relocation restriction: Mother sought to have the residency restriction removed; the district court ordered it be lifted and that any future issues be addressed through future modification proceedings. As stated in Harshberger, relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order. But, the precedent does not preclude the district court from considering the effects of relocation on the children so long as there is some other circumstance that would serve as a substantial and material change even in the absence of relocation.
Denial of Mother’s contempt petition: The record contained ample support for the findings of the trial court that Mother did not meet her burden of proof in showing that Father was in contempt for disobeying the Decree; Father had not repeatedly refused to allow Mother to recover lost time with the children and each party had allowed the other extra time in accordance with the best interests of the children; Father had not forbidden school personnel from communicating with Mother; neither party had willfully denied custodial nor visitation rights of the other; Father participated in mediation in good faith; and there had not been willful violations of court orders by either party.

Conclusion: The Court declined to reweigh the testimony and evidence adduced at trial because Mother had not articulated the existence of some serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion.

Affirmed.

D.J. Tyler delivered the decision.

Link: http://tinyurl.com/267g98w .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Final Collection Update

We have received the last load of boxes from storage! These are historical and rare treatises.

The collection is now complete (though it is not completely on the shelves): treatises, Wyoming legislative information, reporters, current and historic federal and state statutes, ALRs, digests, CFRs, Federal Registers and other miscellaneous federal government publications.

Collection Update #6

Finally, the reporters are on the shelves! At this point, all current legal research materials are back in the library and on the shelves. Coming soon from storage will be our remaining historical materials: treatises, federal government documents, and the British collection.

Here is what we have on the shelves so far: treatises, Wyoming legislative information, reporters, current and historic state statutes, ALRs, digests, CFRs, and Federal Registers.

Collection Update #5

Finally, the reporters are on the shelves! At this point, all current legal research materials are back in the library and on the shelves. Coming soon from storage will be our remaining historical materials: treatises, federal government documents, and the British collection.

Here is what we have on the shelves so far: treatises, Wyoming legislative information, reporters, current and historic state statutes, ALRs, digests, CFRs, and Federal Registers.

Collection Update #3

The latest load of boxes from storage was tiny--only about 200 boxes. We're unpacking the current state statutes for the remaining states. The next batch that we will get in for unpacking will be the reporters. All you book lovers will again be able to embrace the Pacific Reporter. However, we won't be getting them until after May 1, 2009. Be patient for just a bit longer.

Here is what we have on the shelves so far: treatises, Wyoming legislative information, current and historic state statutes, ALRs, CFRs, and Federal Registers.

Summary 2009 WY 51

Summary of Decision issued April 9, 2009

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

Case Name: Inman, Jr., v. Williams, f/k/a Inman

Citation: 2009 WY 51

Docket Number: S-08-0113

Appeal from the District Court of Lincoln County, the Honorable Norman E. Young, Judge.

Representing Appellant Inman, Jr.: John D. Bowers and Joshua T. Smith of Bowers Law Firm, PC, Afton, Wyoming.

Representing Appellee Williams: William L. Combs of Combs Law Office, LLC, Evanston, Wyoming.

Facts/Discussion: Father appealed from a district court order which settled several matters that were in dispute between Father and Mother. The Court reviewed this matter previously in Inman I. Although two years have passed, the problems between the parties with respect to child visitation still have not been fully resolved. The instant proceedings were initiated by Father’s petition to relocate along with the children to South Carolina.

The Court noted an important distinction between the circumstances of the appeal in Inman I and those in the instant case. In the instant case, the district court order established a concrete visitation schedule and delayed but did not deny Father’s ability to relocate to South Carolina. Two years have passed with the parties no closer to resolution of their disputes. The Court noted that they did not intend to create a precedent which suggested that by merely being obdurate for a long enough period of time, a party may elevate an “insubstantial right” to a “substantial” one. It appears that Father side-stepped his obligations as imposed by the district court and his decision to move to South Carolina would further frustrate Mother’s rights to visitation. Although he has flaunted court orders, he cannot be denied his constitutional right to relocate. The Court concluded that the order from which the appeal was taken was an appealable final order as contemplated by W.R.A.P. 1.05.
The Court’s focus was on the reinstatement of Mother’s longstanding, but unenforced rights to visitation and a modification of those rights so as to ensure and facilitate her rights in light of Father’s desire to relocate. Father contended the district court erred in ordering him to post a $50,000.00 bond if he chose to move. The Court noted the record of Father’s behavior warranted the imposition of the bond. Father contended the district court violated his fundamental rights by negating his selection of a counselor for the children. The argument was not supported by the record or by cogent argument or pertinent authority. Father contended that the district court erred when it ordered the potential re-opening of Mother’s petition to modify custody in the event Father continued to flaunt the orders of the court. The Court viewed the district court’s orders in this instance as a warning to Father. Father contended that the district court abused its discretion in requiring him to pay Mother a per diem when visiting the children. The Court stated it was inclined to embrace a principle established in Nebraska that there is no immutable standard for the allocation of travel expenses for the purpose of visitation; instead the determination of reasonableness is made on a case-by-case basis. Father contended the district court erred in permitting the GAL to indirectly testify at a hearing. Because the GAL’s participation in this case was unusually comprehensive, her participation in the proceedings did not undermine the validity of the court’s order. The Court reviewed the record in consideration of the best interests of the children with respect to visitation and concluded the determination was supported by the record. Father contended the district court erred in not requiring Mother to pay child support. The parties previously stipulated that neither would pay the other support and that stipulation remained in full force and effect. The Court declined to impose sanctions as requested by Mother because it determined that the order from which the appeal was taken was an appealable order.

Conclusion: None of the provisions of the district court’s order constituted an abuse of discretion nor were any of its provisions invalid as a matter of the law.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/cgfat7 .

[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.]

Collection Update

We have received the next load of boxes from storage. Get ready for the law reviews and journals -- that 1959 Commercial Law Journal is all yours now. Only a few thousand boxes to go!

Here is what we have on the shelves so far:

• treatises
• Wyoming legislative information
• current Wyoming, Nebraska, South Dakota, Montana, Idaho, Utah, and Colorado statutes
• historic state statutes
• ALRs
• CFRs
• Federal Registers.

They're coming back!

For those of you who couldn't wait until we got the Dakota Territory Laws, they are now on the shelf. We have received the first load of books back from storage (about 1500) and are busy getting quite dusty along with sore muscles. The historic state statutes, Code of Federal Regulations and Federal Registers are currently taking up space in the basement lobby of the Supreme Court Building. Today we unpacked and shelved Alabama through the District of Columbia.

So when you come to check out that 1942 CFR, be ready for a maze of white boxes labeled with obscure numbers and notations. And be aware that this is just the first batch. We still have probably 3000 boxes (or more) left in storage.

Law Library Re-opening

Hello All –

The Wyoming State Law Library, now relocated to the newly renovated Supreme Court building, will re-open to the public on January 12, 2009. We have available the same items that were held in our temporary location in the Hathaway building. In the near future we will be integrating the (very large) remainder of our collection that’s currently in storage.

We look forward to welcoming you to our new space complete with fancy movable stacks of books!

See you soon, Meg

Librarian Offices Move

Due to the move of Kathy, Meg and Katie's offices, only the main library phone number will be active from October 23-29, 2008. Please call (307-777-7509) to reach us.

Law Library Move--Not Yet

You may have heard the exciting news that the Supreme Court will very soon move back into the newly renovated Supreme Court Building. That does include Kathy, Meg and Katie's offices.

But, it does not yet include the library. So Kathy, Meg and Katie are investigating warm snow boots.

We're not exactly sure why (we are not going to ask--this is, after all, a government operation), but the shelving for the library was contracted to not be installed until (hopefully) the middle of November and likely won't be finished until mid- to late December.

The current plan is to close the library November 17 and open again just after the new year, 2009. However, if you need reference assistance, you can still contact us.

By February and March 2009 we will be well on our way to again providing those reporters, law reviews, state statutes, Federal Registers, historic CFRs and treatises--all the books you've missed these last two years. Yay!

Remember, too, we will still have Westlaw public access, HeinOnline, LexisNexis Congressional, and Shephard's!

Summary of 2008 WY 112

Summary of Decision issued September 25, 2008

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

Case Name: Testerman v. Testerman

Citation: 2008 WY 112

Docket Number: S-08-0006

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

Representing Appellant: Mary Elizabeth Galvan, Mary Elizabeth Galvan, PC, Laramie, Wyoming.

Representing Appellee: Raymond D. Macchia, Macchia & Assoc., LLC, Cheyenne, Wyoming.

Facts/Discussion: The appeal arose from the divorce proceedings of Ms. Testerman (Mother) and Mr. Testerman (Father). The district court awarded primary custody of their daughter to Mother, and provided visitation to Father with the aim that each parent would spend approximately equal time with the child. The district court’s express purpose was to prevent Mother from moving to California.
In the divorce decree, the district court stated that it was in the best interests of the child for Mother to have primary custody. Given the evidence, the Court saw no abuse of discretion in its decision to grant primary custody to Mother.
The district court prepared a “Parenting Plan” which was set up after reviewing the Arizona parenting plan. The district court’s term “parenting time” was meant to be synonymous with the term “visitation” as used in the Wyoming statutes. The “Parenting Plan’ was such that initially, the child would be residing with Mother with visitation from Father. Gradually, Father’s visitation increased so that by the time the child entered school, she would spend four days with each parent alternately. The Court noted the arrangement seemed inconsistent with the district court’s award of primary custody to Mother and that it seemed more like joint custody. The Court has repeatedly said that joint custody was not favored by the Court absent good reason. The Court has emphasized that the success of joint custody depends upon the parties’ ability to communicate and agree on the matters relevant to the child’s welfare. The record in the instant case cast doubt on the Testermans’ ability to do that. The district court articulated only one reason for imposing visitation as it did: to allow Father and the child to develop and maintain a relationship. It was not sufficient to justify the de facto joint custody imposed by the district court. Therefore, the district court abused its discretion in ordering this custody and visitation arrangement.
The district court’s custody and visitation arrangement also impinged on Mother’s rights to travel and relocate providing that if either parent gave notice of intent to move from Laramie County, it may be considered as a change of circumstances sufficient to give it jurisdiction to consider a custody modification. The Court stated that their precedent is quite clear that relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order.

Holding: The district court imposed de facto joint custody without establishing the good reasons needed to support the arrangement. The sole reason given for the arrangement was to keep Mother in Cheyenne which violated her constitutional rights. The district court abused its discretion and violated legal principles in establishing the custody and visitation arrangement.
The Court affirmed the district court’s decision to grant primary custody to Mother. It reversed the decision concerning Father’s visitation, specifically paragraphs 13.c. through 13.l. of the Amended Decree of Divorce and remanded to the district court.

Affirmed in part, reversed in part, remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/4zfan3 .

[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.]

Officially Open

It's here--the moment you've all been waiting for with such anticipation--the law library is officially open!

Okay, so maybe that's not such new news any more. But it is official. We have all our lights, 99.9% of our furniture, and the only boxes in sight are the white ones ready to go into storage.

You can now look forward to using fewer books, more online resources and our fancy new duplex printer! You can also, unfortunately, look forward to the resumption of email notices for those few books you are still checking out. In case you forgot, here is a list of the resources available while we are in the Hathaway Building:

• Federal and state case law (accessible via free public in-library access Westlaw)
• Law reviews (accessible via free public in-library access Westlaw or HeinOnline)
• Law review indexes (1980 - present)
• Practice-oriented treatises (legal history & philosophy of law treatises will be in storage)
• Annotated state codes for Wyoming and surrounding states (other states will be accessible via free public in-library access Westlaw)
• Wyoming legislative history materials (one set each of session laws, bills & digests)
• Statutes at Large
• Current CFR's
• Federal Register (accessible in-library via HeinOnline)
• ALR's
• CJS & AmJur 2d
• Current Decennial, General, Pacific, Federal, and Wyoming Digests
• Words & Phrases
• USCS & USCA
• Restatements
• AmJur Legal Forms & AmJur Pleading and Practice Forms

Un-Officially Open

Anyone seen an office chair floating around? How about that box with the stuff in it? You know, the one with the papers and books? It was a brown box, I remember that. Oh no, what about the Standard Federal Tax Reporter? Where could it possibly be!? (Really, Kathy, I didn't accidentally set that box in the dark corner on the 3rd floor--I didn't! It was Meg!)

Those are some of the questions we are now asking ourselves. But fear not, the vast majority of what was supposed to make it's way across Capitol Avenue and into the Hathaway Building has done so. Books are on shelves, chairs (most of them, anyway) and tables are ready for research, computers are networked, and we have almost caught up on three weeks of mail. In other words:

The law library is now un-officially open!

We're calling it an un-official opening because we are still missing some lights. We had the indescribable pleasure of shelving books using construction halogen stands and incandescent daisy chains. If you find an employment law treatise in criminal law, I didn't do it (it was Meg). Most of our lights are now working and they promise to finish them next week.

In short, we are operational. Please come visit!

Our mailing address remains:

Wyoming State Law Library
Supreme Court Building
2301 Capitol Avenue
Cheyenne, WY 82002

Our physical address is now:

Hathaway Building, Room B24
2300 Capitol Avenue
Cheyenne, WY

Phone: 307-777-7509
Email: library@courts.state.wy.us

Kathy Carlson
Hathaway Building, Room 160B

Meg Martin
Hathaway Building, Room 160A

Katie Jones
Hathaway Building, Room 160C

Amber Bell
Hathaway Building, Room B24

Julie Eatmon
Hathaway Building, Room B24

Wayne DeRaad
Hathaway Building, Room B24

Move update--Nov. 28, 2006

It's happening now, people! The boxes and boxes of books are being emptied and shelved in the basement of the Hathaway building as I type. I've been given a 5 minute break to let you know what's going on--then I am back to the LC classification system.

Our offices have not been moved yet, but it's scheduled for this week. They are currently moving and setting up the Justices' and Staff Attorneys' offices. In the meantime, we are doing all we can to round up slave labor for shelving. We have been lucky only once on that front. However, she left on a flimsy excuse and escaped.

So, Kathy's goal for opening us back up again is now December 15, 2006. The shelving is moving along fairly rapidly. We think this is a pretty realistic date. For the next few days, we have no telephones and limited computer access. The best way to get hold of us is by email.

Pictures--we're almost all packed up!

We finally had an opportunity to catch all the law library staff for more than a minute in one place and decided to preserve the moment. Now you can place a face with the name! Don't be surprised when you see more of Wayne and Julie now. Since we are now only open Monday through Friday from 8am-5pm, we are happy to have them working during the day instead of in the evenings and on weekends.

And we've taken some photos of our packing and moving progress. We haven't been pulling your leg--we really are moving. Take a look!

The move is currently scheduled for the last two weeks in November. We are doing our best to keep treatises available for check-out until the very last minute.

Law Library Move Update

The law library move to the Supreme Court's temporary location in the Hathaway Building has been tentatively scheduled for Thanksgiving week.

Although we will continue to be closed until completion of the move and our (grand) re-opening in the basement of the Hathaway, we are able to lend treatises if you know what you need. Our books have been packed in boxes but we have not sealed them yet.

Another option is to contact the George W. Hopper Law Library at the University of Wyoming.

Reminder

This is just a reminder that the State Law Library is currently closed as we work to prepare for our proposed move date of mid-November. We hope to re-open for use of the treatises and access to Westlaw as we await the actual move. You know how it is…we prepare and then we wait for Hathaway to be ready for us – so we will keep you informed.

Update - Law Library move

Rich Cathcart announced today in the Tribune-Eagle that the Law Library move to their temporary space in the Hathaway Building will be delayed at least two weeks and possibly for two months. The delay is a result of a leak from a newly-installed sprinkler system located on the first-floor.

The packing is progressing well and we expect to close the Law Library doors in the Supreme Court Building on October first. Of course, leaks and other delightful(?) things happen and plans change, so we'll continue to keep you updated!