Ellen Walter , 346 P.3d 961 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 53
APRIL TERM, A.D. 2015
April 6, 2015
ELLEN WALTER,
Appellant
(Defendant),
v. S-14-0188
MARK WAYNE WALTER,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Tad T. Daly and Matthew R. Sorenson, Daly, Davidson & Sorenson, LLC, Gillette,
Wyoming.
Representing Appellee:
Jill D. LaRance, LaRance & Syth, PC, Billings, Montana.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.
[¶1] In this appeal from a Decree of Divorce, Ellen Walter (“Mother”) challenges the
district court’s decisions on child custody and child support, its rulings relating to the
guardian ad litem, and a modification to the original findings of fact and conclusions of
law. Finding no reversible error, we will affirm.
ISSUES
[¶2] Mother presents four issues for our review, which we have reordered to facilitate
discussion:
1. Did the district court abuse its discretion in awarding
primary physical custody to Father?
2. Did the district court abuse its discretion in requiring
the parties to split the children’s medical costs not covered by
health insurance?
3. Did the district court err in permitting the guardian ad
litem to withdraw?
4. Did the district court abuse its discretion by modifying
its original Findings of Fact and Conclusions of Law?
FACTS
[¶3] Mother and Father were married in 2004. Three children were born to the couple,
JRW in 2004, JMW in 2010, and LCW in 2011. Father filed a complaint for judicial
separation on August 21, 2012, and later amended his complaint to seek a divorce.
[¶4] The parties stipulated to an order for temporary arrangements for the children.
The district court entered the temporary order giving Mother primary physical custody of
the children, with liberal visitation to Father. It ordered Father to pay child support and
spousal support. A guardian ad litem was appointed for the children. A few months
later, but before the trial, the district court allowed the guardian ad litem to withdraw.
[¶5] Trial began on March 12, 2014. Evidence indicated that Father was employed as a
psychiatrist during the marriage. Mother did not work outside the home, and was the
primary caregiver for the children. All three children have special needs. JRW is a high-
functioning autistic child also diagnosed with high anxiety and ADHD. JMW was
developmentally delayed in his motor skills as an infant, though he largely caught up as a
toddler. He still has delayed speech development and orthopedic problems, and recently
1
started to exhibit some indications of autism or ADHD. LCW suffers from an
undiagnosed developmental disorder, and has significant developmental delays. All three
children have participated in various medical, therapy, and counseling programs.
[¶6] Following a three day trial, the district court issued Findings of Fact and
Conclusions of Law. It concluded that the best interests of the children would be served
by granting primary custody to Father and liberal visitation to Mother. Mother was
ordered to pay child support. Prior to entry of the decree, Mother filed a motion asking
the district court to modify its findings and conclusions by reducing the amount of child
support she was to pay. Mother asserted that, under the proposed findings, she would
have the children for more than 40% of the year so child support should be calculated as
set forth in Wyo. Stat. Ann. § 20-2-304(c) (LexisNexis 2013).1 The district court
declined to adopt Mother’s proposed change and instead reduced Mother’s visitation
below the 40% statutory threshold. The Decree of Divorce entered by the district court
reflected this modification, but was otherwise consistent with the original findings and
conclusions. Mother filed this timely appeal.
STANDARD OF REVIEW
[¶7] Our standard of review in domestic relations matters is well established:
Custody, visitation, child support, and alimony are all
committed to the sound discretion of the district court. . . .
A court does not abuse its discretion unless it acts in a manner
which exceeds the bounds of reason under the circumstances.
Pinther v. Pinther, 888 P.2d 1250, 1252 (Wyo. 1995)
(quoting Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo. 1993)).
1
That statute provides an alternative formula for calculating child support when both parents have
custody more than 40% of the time:
When each parent keeps the children overnight for more than forty
percent (40%) of the year and both parents contribute substantially to the
expenses of the children in addition to the payment of child support, a
joint presumptive support obligation shall be determined by use of the
tables. After the joint presumptive child support obligation is derived
from column three of the tables, that amount shall be divided between
the parents in proportion to the net income of each. The proportionate
share of the total obligation of each parent shall then be multiplied by the
percentage of time the children spend with the other parent to determine
the theoretical support obligation owed to the other parent. The parent
owing the greater amount of child support shall pay the difference
between the two (2) amounts as the net child support obligation.
2
Reavis v. Reavis, 955 P.2d 428, 431 (Wyo. 1998).
DISCUSSION
1. Primary Physical Custody
[¶8] Mother contends that the district court abused its discretion in awarding primary
physical custody to Father. Wyo. Stat. Ann. § 20-2-201(a) provides a list of ten factors
the district court must consider in determining custody. The district court considered all
of the ten factors, but Mother contends that it placed unnecessary weight on certain
factors and ignored others. The primary error, Mother asserts, is that the district court
placed insufficient weight on the fact that Mother had been the children’s primary
caregiver.
[¶9] Mother contends that her role as primary caregiver should have been given
particular emphasis because of the children’s special needs. Mother points out that she
was the one primarily responsible for obtaining medical care and providing in-home
therapies to the children. She asserts that Father’s full-time work schedule will preclude
him from providing those therapies or performing many of the activities necessary to the
children’s well-being and development.
[¶10] In its findings and conclusions, the district court provided an eight-page discussion
of the ten required statutory factors. It acknowledged that all three children have special
needs. It recognized that Mother has been the primary caregiver, and that she was closely
involved in their medical care and therapies. It also recognized that Father would need to
enroll the children in daycare if he had primary physical custody. It concluded its
explanation as follows:
The Court also gave great consideration to the fact that
Mother has been the primary caregiver for the children since
birth. The Court generally awards primary physical custody
to the parent who has taken on this role throughout the
children’s lives. However, in light of Mother’s history of
mental instability, lack of credibility, inability to
communicate with Father, refusal to foster a positive
relationship between Father and the children, and her inability
to respect Father’s rights and responsibilities the Court cannot
award primary physical custody to Mother. This decision
was made based on the evidence that was introduced at trial,
and was not made lightly. Throughout the separation, Father
has shown that he is the more stable parent, and he is capable
of providing a safe environment for the children.
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On this basis, the district court concluded that it was in the best interests of the children
for Father to have primary physical custody.
[¶11] Mother’s claim that the district court ignored her role as primary caregiver or
failed to give it appropriate weight is demonstrably incorrect. Moreover, her assertion
that the district court gave this factor insufficient weight is an invitation for us to reweigh
the evidence. “This Court, however, does not reweigh evidence.” Hayzlett v. Hayzlett,
2007 WY 147, ¶ 8, 167 P.3d 639, 642 (Wyo. 2007) (citing Hall v. Hall, 2005 WY 166,
¶ 15, 125 P.3d 284, 289 (Wyo. 2005)). An abuse of discretion occurs when a material
factor deserving significant weight is ignored. Buttle v. Buttle, 2008 WY 135, ¶ 15, 196
P.3d 174, 178 (Wyo. 2008). The district court did not give Mother’s role as primary
caregiver the weight Mother would like, but it did not ignore that factor.
[¶12] Mother also contends that the district court gave insufficient weight to evidence of
spousal and child abuse by Father. However, the record shows that the district court did
consider this factor. Its findings and conclusions include this explanation:
At trial Mother alleged that Father had physically
abused both her and the children, particularly [JRW]. The
Court must consider evidence of spousal abuse or child abuse
as being contrary to the interests of the children. [Wyo. Stat.
Ann.] § 20-2-201(c). However, during the marriage Mother
never reported the alleged incidents of domestic violence to
anyone, even her own psychiatrist. . . . Mother also admitted
that she exaggerated several of the incidents that she used to
support her application for the Protection Order. As
mentioned above, Mother’s credibility was impeached on
several occasions, and the Court cannot find that her
accusations of spousal abuse are credible.
The Court also considered her allegations of child
abuse. Once again, these alleged incidents were never
officially reported to the police or the Department of Family
Services (“DFS”). . . . In addition, Father’s counsel pointed
out that each alleged incidence of abuse corresponded to an
event that happened in the litigation (i.e. Father asking for a
custody evaluation). The Court notes that the children have
seen several doctors, therapists, counselors, teachers, etc. who
are trained to notice child abuse, and not one of these
individuals has ever reported suspected abuse at the hands of
either parent.
Father testified that Mother’s allegations of abuse “have no merit.” We have often said
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that the credibility of witnesses is for determination by the trial court. E.g., Hench v.
Robinson, 75 Wyo. 1, 12, 291 P.2d 417, 421 (Wyo. 1955). In light of Father’s denial,
and the district court’s findings regarding Mother’s credibility, it was reasonable for the
district court to give the allegations of abuse less weight than Mother would like. Mother
has not demonstrated an abuse of discretion in granting primary physical custody to
Father.
2. Splitting of Medical Costs
[¶13] The district court ordered that Father should continue to provide health insurance
for the children, and that “[a]ny uncovered medical expenses should be divided equally
between the parties.” Citing the disparity in their incomes, Mother asserts that Father
makes a minimum of ten times more than she does. Mother contends that the district
court abused its discretion by ordering an equal split of medical expenses not paid by
insurance.
[¶14] The record demonstrates that the district court had a reasonable basis for its
decision. Both Father and Mother testified about the special needs of the children, but
they disagreed about the amount of medical care, therapy, and other services the children
needed. For example, Father testified to a “prominent disagreement” with Mother about
JRW’s speech therapy. He believed that the school was providing adequate therapy,
while Mother wanted JRW to continue receiving additional therapy from a private
source. Father also disagreed with Mother over whether JMW needed continuing
physical therapy. He expressed his concern that the children had been subjected to
“overtreatment and redundant therapies,” and his belief that overemphasizing their
disabilities kept them “too much in the sick role.” He testified that an even split of
uncovered medical expenses would help discourage Mother from seeking a level of
services that Father believed was unnecessary and possibly harmful.
[¶15] The district court apparently found Father’s testimony credible, and accepted an
equal split of uncovered medical expenses. This decision did not exceed the bounds of
reason under the circumstances. It was not an abuse of discretion.
3. Withdrawal of Guardian Ad Litem
[¶16] Several months after the divorce proceedings were initiated, Father filed a motion
for the appointment of a guardian ad litem to represent the best interests of the children.
The district court granted that motion, indicating that Mother had stipulated to the order.
Nine months later, the guardian ad litem filed a motion to withdraw, and the district court
granted the motion. Mother claims that the district court abused its discretion when it
permitted the guardian ad litem to withdraw without participating fully in the remainder
of the proceedings.
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[¶17] The record reflects that Mother agreed to the guardian ad litem’s withdrawal. The
guardian ad litem’s motion stated that she had consulted with counsel for Mother and
Father, “and they have both given their consent to Counsel’s withdrawal as Guardian Ad
Litem in this matter.” Mother never asserted in the district court that the guardian ad
litem should not be allowed to withdraw, and “we generally decline to review issues
raised for the first time on appeal.” Kordus v. Montes, 2014 WY 146, ¶ 10, 337 P.3d
1138, 1141 (Wyo. 2014) (citing In re Lankford, 2013 WY 65, ¶ 28, 301 P.3d 1092, 1101
(Wyo. 2013) and Jones v. State, 2006 WY 40, ¶ 7, 132 P.3d 162, 164 (Wyo. 2006).
[¶18] Mother recognizes this rule, but relies on Rowan v. Rowan, 786 P.2d 886, 889
(Wyo. 1990) to claim that our “usual rule” is that an “issue raised for the first time on
appeal will not be considered by this court absent special circumstances.” She claims
that special circumstances exist in this case. She analogizes this case to Clark v.
Alexander, 953 P.2d 145 (Wyo. 1998), in which we reviewed the admissibility of the
guardian ad litem’s testimony, even though neither party had objected to the evidence
being admitted by the district court.
[¶19] The special circumstances in Clark were that the “‘definition of the precise roles
of the attorney and the guardian ad litem for children is still evolving and not without
difficulty.’” Id. at 151 (quoting S.S. v. D.M., 597 A.2d 870, 877 (D.C. 1991)). We noted
that, in Wyoming, the role of an attorney or guardian ad litem in custody cases is not
addressed by statute, and that our case law had not clearly delineated the duties of a
guardian ad litem. “Given the lack of clear direction provided to those who must fulfill
this role in Wyoming, and our certainty that the issues in this case will reappear in the
future,” we chose to address those matters in our opinion. Clark, 953 P.2d at 151. Those
special circumstances are not present in Mother’s case. She presents, and we find, no
other circumstances justifying our consideration of an issue raised for the first time on
appeal.
4. Modification of Findings of Fact and Conclusions of Law
[¶20] Following the trial, the district court issued detailed and comprehensive Findings
of Fact and Conclusions of Law. It concluded that Father should have primary physical
custody of the children. Mother was to have liberal visitation, including from
Wednesday afternoon until Monday morning on alternating weeks during the school year,
nine weeks during the summer, and alternating holidays. The district court ordered
Mother to pay child support in the presumptive amount calculated pursuant to Wyo. Stat.
Ann. § 20-2-304(a).
[¶21] Mother filed a motion asking the district court to modify child support. She
claimed that the visitation schedule authorized her to keep the children overnight 43% of
the year, and urged the district court to recalculate child support using the alternative
formula set forth in Wyo. Stat. Ann. § 20-2-304(c). Under the alternative child support
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formula, Father would pay child support to Mother.
[¶22] The district court modified the findings and conclusions, but not in the way
Mother sought. As it explained, “Rather than adopt changes in the child support
calculations as proposed by [Mother], the Court finds that modifying the visitation
schedule such that a shared custody arrangement is avoided is in the best interests of the
children.” The original findings and conclusions provided that Mother would have the
children on alternating weekends during the school year from Wednesday afternoon until
Monday morning. The district court modified that to a period from Friday afternoon
until Monday morning.
[¶23] The district court explained its authority to make the modification this way:
Procedurally, the Court finds that its Findings of Fact and
Conclusions of Law was not intended to be a final order.
Thus, the Court is able to modify such in its discretion prior
to entering a final order irrespective of certain timing or other
limitations set forth under Rules 59 and 60. Broadhead v.
Broadhead, 737 P.2d 731 (Wyo. 1987).
In Broadhead, a divorce case, the district court issued two decision letters, but thereafter
“entered the divorce decree substantially different from provisions of the decision
letters.” Id. at 732. We said that the decision letters were not intended as final orders,
and the district court had discretion to modify its tentative decisions before a final order
was entered. We concluded that the district court did not err in issuing a divorce decree
that differed from the earlier decision letters. Id. at 733.
[¶24] Similarly, in Mother’s case, the district court’s findings and conclusions were not
meant as a final order. They directed Father to prepare and circulate a proposed divorce
decree. Applying the ruling from Broadhead, the district court had discretion to modify
the findings and conclusions before entering a final order. However, Mother seeks to
distinguish her case from Broadhead on several bases.
[¶25] First, she points out that Broadhead involved only property division, while her
case involves child custody and child support. She asserts that Wyo. Stat. Ann. § 20-2-
201 requires a district court to consider a list of ten factors when making child custody
decisions, a requirement that did not apply in Broadhead. She contends that the district
court erred because it did not address how those ten factors affected the decision to
modify the original findings and conclusions.
[¶26] Contrary to Mother’s claim, a district court’s discretion to modify non-final orders
does not depend on the issue being decided. We have recognized this discretion in cases
involving, for example, the appointment of a guardian, In re Lankford, ¶ 26, 301 P.3d at
7
1100, and in a case described only as “civil litigation,” Steranko v. Dunks, 2009 WY 9,
¶¶ 2, 6, 199 P.3d 1096, 1096-97 (Wyo. 2009). We have previously recognized it in a
case dealing with child custody, Parris v. Parris, 2009 WY 44, ¶ 17, 204 P.3d 298, 303
(Wyo. 2009), and in another dealing with child support, Lee v. Lee, 2013 WY 76, ¶ 10,
303 P.3d 1128, 1132 (Wyo. 2013).
[¶27] As to the ten statutorily required factors, the district court’s findings and
conclusions contained a thorough and thoughtful discussion of each of the ten factors and
how they influenced the district court’s decision. That discussion is also incorporated
into the divorce decree, the district court’s final decision on child custody. The district
court did not overlook the ten factors, and Mother has presented no authority indicating
that the district court was required to repeat this lengthy discussion a third time in its
order modifying the findings and conclusions.
[¶28] In its original findings and conclusions, the district court concluded that Father
should have primary physical custody. It explicitly concluded that, for several reasons,
“a shared custody arrangement is not appropriate.” It then adopted the visitation schedule
proposed by Father. Mother’s motion for modification indicated that she considered this
visitation schedule to be a shared custody arrangement, or at least coming close to that.
Noting that shared custody is disfavored in Wyoming, the district court adjusted the
details of the visitation schedule to be more consistent with its basic conclusion that
Father would have primary physical custody. Under the circumstances, we cannot
conclude the district court abused its discretion.
[¶29] The second distinction Mother proposes is that the district court in Broadhead
invited the parties to comment and request alternative relief, and held a hearing to
consider further evidence before modifying its decision. The district court did not hold a
hearing, and Mother asserts that the decision “came as a complete and utter surprise.”
Relying on In re MEO, 2006 WY 87, ¶ 38, 138 P.3d 1145, 1156 (Wyo. 2006), she further
contends that the right to familial association is fundamental and constitutionally
protected, and when addressing such a right, courts “must accommodate to the keenest
spirit of procedural due process.” She claims that the district court was required to hold a
hearing and take new evidence, if offered, in order to avoid infringing on her due process
rights.
[¶30] In support of her position, Mother relies on KES v. CAT, 2005 WY 29, 107 P.3d
779 (Wyo. 2005). In that case, we recognized that a parent’s right to associate with his or
her child is a constitutionally protected liberty interest, and in custody litigation, that
interest entitles the parent to procedures that satisfy the requirements of due process. Id.,
¶ 16, 107 P.3d at 783-84. Over the objection of one of the parents, the district court
interviewed the child in private to learn if the child preferred to live with one parent or
the other. We ruled that, “When a judge interviews a child in private without the consent
of a parent, that parent is deprived of due process inasmuch as he or she is unable to hear
8
the evidence, and is not given an opportunity to explain or rebut statements made by the
child.” Id., ¶ 16, 107 P.3d at 784. Mother also relies on BDR v. BEB, 888 P.2d 216, 219
(Wyo. 1995), in which the district court terminated the biological father’s parental rights
and granted another couple’s adoption of the child after holding a “truncated hearing” in
which the biological father “was not allowed to present evidence” relevant to all of the
issues. We concluded that these procedures were inadequate to protect the biological
father’s due process rights.
[¶31] Mother’s situation is different. In making its decision to modify its findings and
conclusions, the district court did not take any evidence outside of the parties’ presence.
It relied on the extensive evidence previously presented in the three day trial. Mother
participated in the trial, with the opportunity to hear, explain, and rebut all of the
evidence. The proceedings were not truncated, and Mother was not prevented from
presenting relevant evidence. Mother fails to indicate what additional evidence could
have been provided, and does not demonstrate how a hearing might have changed the
district court’s decision.
[¶32] In her final argument concerning the district court’s modification of the findings
and conclusions, Mother claims that the district court abused its discretion by ignoring a
factor significant to the decision. At trial, the therapist for JRW testified that children
with autistic disorder, including JRW, have difficulty with transitions. She recommended
that the children should spend significant blocks of time with each parent, with fewer
exchanges of custody. Father agreed that JRW has “transition issues.” Mother contends
that the district court’s original findings and conclusions were consistent with this
evidence because they allowed her visitation with the children from Wednesday
afternoon to Monday morning on alternating weeks. She claims that the modification
overlooked the difficulty of transitions for JRW and thereby ignored the best interests of
the children.
[¶33] However, the modified schedule involves exactly the same number of transitions
as the schedule set out in the original findings and conclusions. The transitions take place
on Friday rather than Wednesday, as in the original findings and conclusions, but the
number of transitions is the same. Accordingly, the two schedules are equally consistent
with the parties’ request to accommodate JRW’s transition issues by requiring relatively
few transitions. The district court did not ignore the evidence regarding JRW’s
difficulties with transitions, and it did not abuse its discretion in modifying the original
visitation schedule.
CONCLUSION
[¶34] We have considered each of Mother’s issues, and find no abuse of discretion or
other reversible error in the district court’s decision. We affirm.
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