Summary 2013 WY 149

Summary of Decision December 10, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: CHRISTOPHER HARIGNORDOQUY v. LEE ANN BARLOW

Docket Number: S-13-0076

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

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

Representing Appellant: Christopher Harignordoquy, pro se.

Representing Appellee: Lea Kuvinka of Kuvinka & Kuvinka, P.C., Jackson, Wyoming.

Date of Decision: December 10, 2013

Facts: The parties to this appeal were divorced in the District Court for the Ninth Judicial District (Teton County). Appellant Christopher Harignordoquy contends that the district court erred in exercising child custody jurisdiction, in the determination as to whether his children might be entitled to possible dual citizenship as that finding might relate to child custody, in requiring a bond to permit visitation and limiting visitation to Teton County, and in other respects.

Issues: 1) Did Wyoming have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act so as to permit the district court to make a custody determination? 2) Did the district court abuse its discretion in its custody and visitation decision because it found it unlikely that the parties’ children would obtain dual French citizenship if it awarded Appellant custody or increased visitation? 3) Are any of Appellant’s other arguments adequately supported by pertinent authority or cogent argument so as to permit review? 4) Is Appellee entitled to an award of sanctions under Wyoming Rule of Appellate Procedure 10.05?

Holdings/Conclusion: We find no error in the district court’s rulings, and we therefore affirm. We also award Appellee costs, attorney fees, and damages against Appellant as provided in Wyoming Rule of Appellate Procedure 10.05.

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 quotation, 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 2013 WY 44

Summary of Decision April 17, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: WENDY WILLIS, f/k/a WENDY DAVIS v. CHAD DAVIS

Docket Number: S-12-0176

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

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

Representing Appellant: M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming

Representing Appellee: Matthew D. Winslow of Keegan & Winslow, P.C., Cody, Wyoming

Date of Decision: April 17, 2013

Facts: The appellant, Wendy Willis (hereinafter Mother), appealed the district court’s decision to deny her motion for modification of custody and visitation. She claimed that the district court’s order did not comply with the statutes regarding child custody and visitation and that the district court improperly denied the admission of the children’s treating counselor’s notes and written opinion into evidence at the motion hearing.

Issues: 1. Did the district court abuse its discretion when it denied Mother’s motion for modification of custody and visitation?

2. Did the district court abuse its discretion when it determined that the treating counselor’s notes and written opinion regarding her counseling sessions with the children were inadmissible hearsay?

Holdings: The district court’s conclusion that Mother failed to demonstrate a material change in circumstances surrounding the custody and visitation order was supported by the facts presented at the hearing. For that reason, the district court was not required to engage in an analysis of whether a change in custody or visitation was in the best interests of the children. Finally, the Court declined to consider Mother’s argument that the counselor’s notes and written opinion were admissible as business records under W.R.E 803(6) because that issue was being raised for the first time on appeal. The Court affirmed the district court’s order denying Mother’s motion to modify custody and visitation.

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 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 .

[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.]

Summary 2010 WY 114

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: JS v. MB

Citation: 2010 WY 114

Docket Number: S-09-0200

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing JS: Donna Sheen, Cheyenne, Wyoming.

Representing MB: Richard L. Harden, Casper, Wyoming.

Facts/Discussion: JS (Father) challenged the district court’s order requiring the parties to exchange child visitation on a weekly basis when the child reaches age 5 in 2013.
Father argued that the district court abused its discretion by ordering what amounts to shared custody, although each party sought primary custody.
In this case, as per the court order, the sharing is of visitation, not of custody, the parties must operate in terms of visitation as they might if the court had ordered shared custody. When the district court’s exercise of discretion in custody matters involves splitting custody of children between parents, it must provide an explanation of its reasoning and place its findings on the record. The Court noted the district court’s order explained the reasoning and analysis in full. The Court stated the primary concern in the instant case was the extent to which the parents are able to communicate and work together to promote the child’s best interest.

Conclusion: The district court did not abuse its discretion in ordering the parties to alternate weeks with the child beginning at age five. In ordering as it did, the court simply modified the current visitation arrangement to accommodate the growing child, which is routinely done in long-term custody and visitation plans.

Affirmed.

J. Hill delivered the decision.

C.J. Kite specially concurring: The Chief Justice concurred but wrote separately to point out that the jurisprudence provides that divided custody is not favored and should not be imposed simply because both parents are equally qualified to be awarded custody. Although the Justice concurred, she stated she did not believe the case should be relied upon as indicating a deviation from the Court’s long line of cases disfavoring divided custody and requiring exceptional circumstances.

Link: http://tinyurl.com/2bwh7e7 .

[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.]

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.]

Summary 2009 WY 58

Summary of Decision issued April 28, 2009

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

Case Name: Steele v. Neeman

Citation: 2009 WY 58

Docket Number: S-08-0117

Appeal from the District Court of Campbell County, the Honorable Dan. R. Price II, Judge.

Representing Appellant Steele (Mother): Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee Neeman (Father): DaNece Day and Christopher R. Ringer of Lubnau & Bailey, PC, Gillette, Wyoming.

Facts/Discussion: Mother sought an upward modification of child support against Father. The district court modified the child support amount but downward to less than half the statutorily determined presumptive amount. The district court cited the child’s poor relationship with the father which included lack of visitation as the reason for deviation.

Deviation from presumptive child support amount: Wyo. Stat. Ann. § 20-2-304 established a method for determining child support amounts based on the parents’ incomes. The amount determined is rebuttably presumed to be the correct amount of child support to be awarded in any proceeding to establish or modify temporary or permanent child support amounts. Section 20-2-307(b) established the method by which the determining court might deviate from the presumptive amount. As the Court stated in Sharpe, lack of visitation and negative feelings between a noncustodial parent and child are not proper factors that a court may consider in determining whether to deviate from the presumptive support guidelines. The amount of time a child spends with each parent is relevant only in regard to calculating the expenses each parent incurs when physically in custody of a child.

Conclusion: A parent is supposed to be a financial resource for his/her child. It is a responsibility of parenthood. This responsibility exists regardless of visitation or negative feelings between parent and child. The district court erred when it used those criteria as the basis for deviating from the established presumptive child support.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/d6ykwj .

[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 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.]

Summary 2008 WY 135

Summary of Decision issued November 14, 2008

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

Case Name: Buttle v. Buttle

Citation: 2008 WY 135

Docket Number: S-08-0090

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

Representing Appellant Amy: Dameione S. Cameron and Dean R. Winegar of Parsons & Cameron, PC, Cheyenne, Wyoming.

Representing Appellee Joshua: Donald A. Cole of Cole & Cole Law Firm, Cheyenne, Wyoming.

Facts/Discussion: In divorce proceedings between Amy Jean Buttle (Mother) and Joshua John Buttle (Father) the district court ordered that Mother should have primary physical custody for decision making purposes but then determined the parties should share physical custody of their four-year-old son.

Evidence of Spousal Abuse: Considering the evidence presented in the action below and the district court’s statements in their entirety, the Court held the district court did not abuse its discretion in declining to base its custody determination on the evidence of abuse. While there was no question from the evidence that the parties fought, their fights involved physical confrontations and such confrontations were contrary to the best interest of the child, the Court concluded the district court could have reasonably determined from the totality of the evidence that Mother should have primary legal custody subject to liberal visitation by Father. In determining custody in the best interest of a child, evidence of spousal abuse is only one of the factors district courts are required to consider. The Court noted that the district court is in the best position to weigh the testimony and assess the witnesses’ credibility.
Shared Custody: When a district court’s exercise of discretion in custody matters involves splitting custody of children between parents or other unconventional approaches, it must provide an explanation of its reasoning and place its findings on the record so that, upon review, the Court can be sure that a comprehensive evaluation of all relevant factors occurred prior to determining custody. The decree shed no light on the district court’s reasoning for its findings. The Court’s review of the district court’s order is limited to deciding whether it abused its discretion in ordering shared custody. The Court decides whether the arrangement imposed will promote stability in the child’s environment, which is of the utmost importance to his well-being. The shared custody arrangement in the instant case required the child to spend at least three hours every fourth day traveling between Saratoga and LaGrange, attend two different daycare centers and to be separated from his primary caretaker every fourth day for a four-day period. There was nothing in the record supporting the shared custody arrangement. Mother and Father have no history of effective communication or cooperative decision making. These skills would be necessary to facilitating such a shared custody arrangement. In addition, the district court left undetermined how custody would work when the child begins to attend school in 2009. The shared custody arrangement imposed did not provide the framework that best served the child. The district court abused its discretion in ordering shared custody.

Holding: Neither party appealed the district court’s order granting Mother primary physical custody for final decision-making authority. Consequently, that order will remain in effect. The Court reversed the district court’s shared custody order and remanded with directions to enter an order awarding Mother primary physical custody and Father reasonable visitation taking into consideration the geographic distance between the parties. In addition, the district court will re-calculate the presumptive child support obligation on the basis of the new custody arrangement.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/5rdh7e .

[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 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.]

Summary 2008 WY 104

Summary of Decision issued September 3, 2008

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

Case Name: JT v. KD

Citation: 2008 WY 104

Docket Number: S-08-0002

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Appellant: Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, Sheridan, Wyoming.

Representing Appellee: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Facts/Discussion: After various agreements and orders concerning custody, JT (Mother) filed a petition to modify custody in which she sought primary custody of the parties’ minor child. The district court awarded primary custody to KD (Father). Neither party requested findings pursuant to W.R.C.P. 52(a).
The ultimate issue was whether the court reasonably could have concluded as it did. Mother cannot complain on appeal that the district court did not adequately address the statutory factors or more fully explain its reasoning because she did not request specific findings.
The Court noted the district court’s decision letter contained detailed findings. The Court also noted that the district court’s consideration of the factors enumerated in § 20-2-201(a) were quoted in the decision letter so there was no question that it was aware of what it statutorily was required to consider in making a custody decision.
The Court found that Mother’s claim that the district court improperly based its decision on her past mistakes was without merit. All the past mistakes the district court considered happened during the lifetime of the child. It would have been improper for the district court not to consider them in determining the best interests of the child.

Holding: The district court issued an eight page decision letter containing detailed findings of fact, a thorough discussion of the applicable law, and a separate discussion of the importance witness credibility played in its decision. Although its ultimate ruling was set forth in one sentence, it was clear from the decision letter in its entirety that the district court carefully and thoughtfully considered the evidence, the law and the best interests of the child in awarding primary custody to Father.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5nonh2 .

[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 2008 WY 81

Summary of Decision issued July 15, 2008

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Inman v. Williams

Citation: 2008 WY 81

Docket Number: S-07-0064

Appeal from the District Court of Lincoln County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): John D. Bowers of Bowers Law Firm, Afton, Wyoming

Representing Appellee (Defendant): William L. Combs of Combs Law Office, Evanston, Wyoming

Date of Decision: July 15, 2008

Issues: Whether the district court's order restricting Appellant's rights in caring for his children was not supported by the evidence and/or a violation of his fundamental rights to associate [with] and raise his children

Facts: This appeal brings into focus a non-custodial parent's long-standing effort to secure visitation with her two children which the district court, pursuant to the parents' stipulation, ordered nearly eight years ago. Appellant father, the custodial parent, appeals a district court's order which found that he was not in contempt for failing to follow an earlier order since the failure was neither willful or intentional but also reiterated a number of the same directives made to Father and Mother regarding the children that were contained in that earlier order and made some changes to others. In the appeal, Father asserts that the district court's order with specific directives violates his fundamental rights to associate with and raise his children and is not supported by evidence. While Mother disagrees with Father's assertions, she also raises the issue whether the district court's order is an appealable order as required by W.R.A.P. 1.05 so that this Court has jurisdiction to entertain this appeal.

Holdings: The father and mother are natural guardians of the persons of their minor children. Parents enjoy a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children.. This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6. In the present actions, Appellant Father claims that his right to raise his children and make those decisions is affected by the order's amended directives.

Responding to Father's claims, Mother asserts (1) the order originates from a contempt proceeding in which the court did not hold Father in contempt and, therefore, is interlocutory in nature, not final, and not appealable; (2) the order does not affect Father's substantial rights; (3) the order does not determine the merits of the controversy between Father and Mother; and (4) the order does not resolve all the outstanding issues.

After careful consideration of the parties' respective contentions, the court found that Appellee Mother's arguments were more persuasive. The true thrust of the court's order is to provide therapeutic counseling to the parties' children so that eventually Mother's long-delayed visitation with her children can be determined and established. Until the children's therapeutic counseling has reached the point at which Mother's visitation can be determined and established, the terms of that visitation have not been fixed. Because the order does not hold Father in contempt and does not fix the terms of Mother's visitation, the order does not determine the action.

Although the order contains language that the children's therapeutic counselor, in consultation with the guardian ad litem, shall determine the terms of Mother's visitation when the children have been prepared for that visitation, in the exercise of this Court's supervisory authority, the therapeutic counselor and the guardian ad litem are directed to recommend such terms to the district court and that court shall establish, with all deliberate speed, the appropriate terms of visitation as provided by statute.

Appeal dismissed.

J. Golden delivered the opinion for the court.