Heidi Gjertsen , 347 P.3d 1117 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 56APRIL TERM, A.D. 2015
April 14, 2015
HEIDI GJERTSEN,
Appellant
(Defendant),
v. S-14-0106
HERMAN TER HAAR,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Amanda K. Roberts of Lonabaugh & Riggs, LLP, Sheridan, Wyoming.
Representing Appellee:
Rene Botten of Botten Law Office, Sheridan, Wyoming.
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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] Pursuant to a California court order, Herman Ter Haar (Father) has sole legal and
physical custody of the parties’ child (the child), subject to limited visitation by Heidi
Gjertsen (Mother). Mother appeals from the district court’s order denying her petition for
modification of the California order pertaining to custody, care and visitation with the
child. We conclude the district court erred by failing to give full faith and credit to the
terms of the California order which specifically allowed a change in the terms of
visitation when it would be in child’s best interests, but it correctly concluded there was
no material change in circumstances to justify a change in custody. Consequently, we
reverse and remand in part and affirm in part.
ISSUES
[¶2] Mother presents the following issues on appeal, which we rephrase:
1. Did the district court err by failing to recognize that the foreign custody
order allowed the visitation terms to be altered based on the best interests of the child
without a showing of a material change in circumstances?
2. Did the district court err by finding no material change in circumstances to
justify a change in custody?
Father presents a single issue:
1. Did the district court abuse its discretion when it denied
Mother’s petition to modify child custody, support,
visitation and bond requirement by finding that she had
failed to demonstrate a material and substantial change of
circumstances as required by Wyoming law?
FACTS
[¶3] This case presents a unique set of facts and course of proceedings. Neither Father
nor Mother is a United States citizen although they both have permanent residence (green
card) status. One child was born as issue of their marriage in 2006. The parties were
divorced by the district court in 2009; however, the issues of child custody, visitation and
support were not addressed by the Wyoming court because California was the child’s
home state at that time. Prior to the California court’s determination of child custody,
etc., Mother removed the child from the United States to her native country, Norway,
without Father’s consent and in violation of a court order. Father proceeded under the
2
Hague Convention on the Civil Aspects of International Child Abduction1 to have the
child returned to the United States and, after several months, he was successful.
[¶4] With the child back in the United States, the California court held a number of
hearings on the outstanding issues, and the parties were eventually able to reach an
agreement regarding custody, visitation and child support. The stipulated judgment
stated that Father and the child had relocated to Sheridan, Wyoming and recognized that
Mother had plans to move there, as well. Father also married Carmela Ter Haar
(Stepmother) and adopted her son (Stepbrother). The California order specifically
recognized that, given the child would be living in Wyoming with Father, Wyoming
would be her home state commencing September 1, 2010.
[¶5] The California order stated in relevant part:
5. Whereas, [Father] is relocating to Sheridan, Wyoming,
and on February 19, 2010, the Court granted his request that
the minor child be permitted to move with him;
6. Whereas, [Father] relocated to Wyoming on or about
March 29, 2010, with [the child];
....
8. Whereas, [Mother] intends to relocate to Sheridan,
Wyoming;
....
11. Child Custody. [Father] is awarded sole legal and
physical custody of the minor child . . . . The parties stipulate
that this order is in the best interests of [the child]. The
parties stipulate that this is a final and permanent
determination of custody, meeting the requirements of
Montenegro v. Diaz (2001) 26 Cal 4th 249. . . . See also
paragraph 27 herein.
12. Visitation Schedule. The minor child shall reside
with [Father] at all times not set out below:
....
1
The Hague Convention establishes the “legal rights and procedures for the prompt return of children
who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.”
22 U.S.C. §§ 9001(a)(4).
3
b. It is anticipated that [Mother] will move to
Wyoming before September 1, 2010. Therefore commencing
on September 1, 2010 or the first day of the month following
[Mother’s] relocation to Wyoming, whichever is sooner, the
parties stipulate and the Court orders the following visitation
schedule:
c. [Mother] shall have visitation with [the child]
on alternating weekends for the time periods setout herein
below; in the event the parties are unable to determine an
alternating weekend schedule, the schedule shall be
determined by providing [Mother] all even-numbered
weekends during a calendar year of 52 weeks, for the
following time periods:
i. Saturday: from 10 a.m. to 4:00 p.m.
ii. Sunday from 10 a.m. to 4:00 p.m.
....
d. Commencing on September 1, 2010, [Mother]
shall have visitation with [the child] on every Wednesday
evening from 5:30 p.m. to 7:30 p.m.
e. In the event that a visitation is missed due to
travel, including consecutive weeks of vacation travel, or
other obligations, it will be “made up” at the earliest mutually
agreeable available date.
f. [Holiday visitation set out].
g. Supervised Visitation. Until [Mother]
provides $50,000 in cash as security in the event of a re-
abduction of [the child], . . . [Mother’s] custodial time shall
be supervised by a mutually agreed upon nonprofessional
provider. . . .
h. Travel. [Mother] must have written permission
from [Father] or a court order to take [the child] out of the
state of Wyoming. [Mother] must have a court order to take
[the child] out of the United States.
4
[Additional provisions pertaining to transportation,
Mother’s citizenship, notifications of authorities of order,
restrictions on Mother’s travel with the child and the security
bond].
17. Country of Habitual Residence. The country of
habitual residence of [the child] is the United States. [The
child’s] home state is California.
18. Change of Home State. Following their move to
Wyoming, the parties stipulate and the court so finds that [the
child’s] home state shall be Wyoming, as California will be
an inconvenient forum as neither [the child] [n]or the parties
will be residents of California. Commencing September 1,
2010, Wyoming shall be the home state for [the child],
pursuant to Wyoming Statute 20-5-301 and 20-5-307.
19. Change of Residence. [Father] shall not relocate with
[the child] more than thirty (30) miles from the Sheridan,
Wyoming court house without the written permission of
[Mother] or an order of court.
[Provisions pertaining to child support, health care expenses,
custody of child’s passports, restrictions on discussion of the
other parent and/or any litigation pertaining to the child in the
presence of the child, and attorney fees].
27. Final Judgment. The orders herein are final and
permanent; a material change of circumstances is required to
modify these orders. However, [Mother’s] visitation schedule
may be adjusted on request by either party, without the
necessity of proving a change of circumstances, as is in the
best interests of [the child] as the Court, in its discretion, may
believe proper.
Father registered the California judgment in the district court in Sheridan.
[¶6] While Mother was still in California and the child was in Wyoming, visitation was
conducted through Skype. Mother felt that her ability to communicate with the child was
hampered because Father or Stepmother was always present during the Skype sessions.
5
Mother moved to Sheridan in January 2011 and began supervised visitation with CASA2
monitoring. At some point, CASA advised it would not able to monitor the lengthy
weekend visits. Mother posted bond in June 2012, and the parties began transitioning to
unsupervised visitation.
[¶7] The visitation exchanges were contentious, often involving disagreements between
Mother, Father and Stepmother over documenting when the child was dropped off and
picked up. In addition, the parties disagreed over Father’s and Stepmother’s discussion
with the child of Mother’s abduction or “kidnapping” of her and their disciplining the
child by forcing her to take cold showers or eat hot sauce. Both parties called law
enforcement on various occasions to address their disputes. The officers recommended
the parties use CASA or at least a neutral site for exchanges. The child became anxious
and sometimes refused to go to visits. At other times, she had tantrums while in Mother’s
care. The parties began video recording their interactions with each other and the child.
[¶8] On February 22, 2013, Mother filed a petition to modify the California order. She
asserted there had been material changes in circumstances since the California order was
entered and sought modification of the custody, child support, visitation and bond
provisions. Father contested Mother’s petition and counterclaimed, requesting that his
obligation to pay child support be removed and an order entered requiring Mother to pay
him child support.3
[¶9] In the spring of 2013, Father enrolled the child in counseling with licensed
counselor, Deiadra (Dee) Smidt. Ms. Smidt gave all of the parties a list of rules for
relating to each other and the child. These rules were designed to help the child’s
emotional state and included: no audio or video recording of the child; Father was not to
threaten Mother with trespass when she came to his home; no unnecessary calls to law
enforcement; no use of the techniques of cold showers or hot sauce to discipline the child
(which the counselor characterized as “abuse”); Father and Mother, rather than
Stepmother, would discipline the child unless they were not available; no quizzing the
child; no “bad mouthing” each other in front of the child; and Father and Stepmother
were to cease saying that Mother was mentally ill. The counseling was effective in
helping relieve the child’s anxiety about visitation with Mother. By the time of trial in
November 2013, the mother/daughter relationship had improved and the exchanges were
less contentious. In fact, law enforcement had not been asked to intervene for several
months prior to trial.
2
CASA stands for “court appointed special advocate.” Wyoming Rules of Procedure for Juvenile Court,
Rule 8.
3
Under the terms of the parties’ agreement and the California order, Father was required to pay Mother
$200 per month in child support even though he had physical custody of the child.
6
[¶10] The district court held a two day trial and ruled Mother was required to establish a
material change of circumstances in order to warrant a change in custody or visitation and
she had not met that burden. The district court, therefore, denied her modification
motion, although it also indicated a change in the terms of visitation may be in the child’s
best interests. Mother appealed the district court’s denial of her modification motion and
Father appealed the district court’s failure to rule on his counterclaim for modification of
the child support obligation. We remanded to the district court for a determination of
Father’s counterclaim. The district court entered an order terminating Father’s child
support obligation and ordering Mother to pay Father $50 per month in support. There
was no subsequent appeal of the child support order by either party, and Father
voluntarily dismissed his cross-appeal.
STANDARD OF REVIEW
[¶11] We review the district court’s order on a petition to modify child custody for abuse
of discretion.
We will not interfere with the district court’s decision
regarding modification of custody absent a procedural error
or a clear abuse of discretion. In determining whether the
district court has abused its discretion, we must decide
whether it could reasonably conclude as it did. Judicial
discretion is a composite of many things, among which are
conclusions drawn from objective criteria; it means exercising
sound judgment with regard to what is right under the
circumstances and without doing so arbitrarily or
capriciously.
Gray v. Pavey, 2007 WY 84, ¶ 8, 158 P.3d 667, 668 (Wyo. 2007) (citations
omitted). The issue of whether the district court erred by failing to give full faith
and credit to the California order is a matter of law which we review de novo.
Witowski v. Roosevelt, 2009 WY 5, ¶ 14, 199 P.3d 1072, 1076 (Wyo. 2009).
DISCUSSION
1. General Law on Modification of Custody and Visitation Awards
[¶12] Wyoming law on modification of an order on the care, custody and visitation of
children is set forth in Wyo. Stat. Ann. § 20-2-204 (LexisNexis 2013):
(a) Either parent may petition to enforce or modify any
court order regarding custody and visitation.
....
7
(c) A court having jurisdiction may modify an order
concerning the care, custody and visitation of the children if
there is a showing by either parent of a material change in
circumstances since the entry of the order in question and that
the modification would be in the best interests of the children
pursuant to W.S. 20-2-201(a). In any proceeding in which a
parent seeks to modify an order concerning child custody or
visitation, proof of repeated, unreasonable failure by the
custodial parent to allow visitation to the other parent in
violation of an order may be considered as evidence of a
material change of circumstances.
[¶13] Section 20-2-204(c) mandates a two-step inquiry in deciding whether to grant a
petition to modify an order.
The first step requires a showing that there has been “a
material change in circumstances since the entry of the order
in question.” § 20–2–204(c). Because of the res judicata
effect afforded custody orders, such a finding is a threshold
requirement. Hertzler v. Hertzler, 908 P.2d 946, 949–50
(Wyo.1995). The district court does not properly acquire
jurisdiction to reopen an existing custody order until there has
been a showing of “a substantial or material change of
circumstances which outweigh society's interest in applying
the doctrine of res judicata” to a custody order. Kreuter v.
Kreuter, 728 P.2d 1129, 1130 (Wyo.1986). In short, unless
the district court finds a material change in circumstances, it
cannot proceed to the second step—determining whether a
modification would be in the best interests of the child.
Hanson v. Belveal, 2012 WY 98, ¶ 18, 280 P.3d 1186, 1193 (Wyo. 2012), quoting In re
TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006) (some citations omitted). See
also Olsen v. Olsen, 2013 WY 115, ¶ 9, 310 P.3d 888, 891 (Wyo. 2013).
2. Effect of California Order
[¶14] The California order contains a unique provision allowing modification of
visitation upon a showing that it is in the child’s best interest, without requiring the
petitioner to show a material change of circumstances. That provision states:
27. Final Judgment. The orders herein are final
and permanent; a material change of circumstances is
required to modify these orders. However, [Mother’s]
8
visitation schedule may be adjusted on request by either
party, without the necessity of proving a change of
circumstances, as is in the best interests of [the child] as the
Court, in its discretion, may believe to be proper.
[¶15] Mother argues on appeal that the district court erred by failing to give full faith
and credit to this provision of the California order and, instead, requiring her to establish
a material change of circumstances occurred subsequent to entry of the order before it
would conduct a best interests analysis to determine if her visitation rights should be
extended. Father maintains Mother waived this argument by failing to present it to the
district court. “[I]ssues raised for the first time on appeal generally will not be considered
by this court unless they are jurisdictional or issues of such a fundamental nature that
they must be considered.” Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d 671, 674
(Wyo. 2003).4 Our case law does not define with precision what issues are of “such a
fundamental nature that they must be considered.” Id., ¶¶ 10-11, 78 P.3d at 674. The
fact that the issue is constitutional does not necessarily make it fundamental. For
example, in DG, 916 P.2d at 997-98 and TR, 736 P.2d at 719-20, we refused to address
issues concerning the constitutionality of the parental rights termination statutes. In
contrast, we considered in Kordus v. Montes, 2014 WY 146, ¶ 10, 337 P.3d 1138, 1141
(Wyo. 2014), a claim that application of the statute of limitations to a minor’s medical
malpractice action violated the fundamental right to access to courts even though the
issue was not raised at trial. In Zupan v. Zupan, 2010 WY 59, ¶ 34, n.4, 230 P.3d 329,
338, n.4 (Wyo. 2010) we ruled Mother’s argument that the residency provision in the
divorce decree violated her constitutional right to travel could be considered on appeal
even though it was not raised at trial.
[¶16] Although we recognize the lack of clarity of this precedent, we do not need to
specifically address whether an argument that the district court did not give full faith and
credit to another state’s decree is a fundamental issue because Father registered the
California order in Wyoming and, in response to mother’s modification petition, asked
the district court repeatedly throughout the proceedings to enforce the terms of the
California order. In fact, Father asked the trial court to modify the child support
provision of the California order without requiring a material change in circumstances
because the order specifically allowed such a change.
[¶17] It is troubling that the precise issue presented by Paragraph 27 of the California
order was not presented to the district court, particularly in light of the district judge’s
repeated requests for the parties to provide him with authority showing that the visitation
4
We have also on occasion said the plain error standard applies in cases where a constitutional issue was
not raised below. See, e.g., WR v. Natrona Co. Dep’t of Family Servs. (In re DG), 916 P.2d 991, 998
(Wyo. 1996); TR v. Washakie County Dep’t of Public Assistance and Social Servs., 736 P.2d 712, 720
(Wyo. 1987).
9
provision of the order could be modified without showing a change of circumstances.
However, as we carefully read the California order, the significance of the provision
which allowed changes in visitation in the best interest of the child without a showing of
material change of circumstances is clear to this Court.
[¶18] United States Const. Art. 4, § 1 states:
Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.
Application of the principle of full faith and credit presents unique challenges in the
context of child custody and support cases because the orders are often subject to future
modification. Acting under its authority in Art. 4, § 1, Congress enacted 28 U.S.C. §
1738A to ensure states give full faith and credit to other states’ custody orders. Section
1738A(a) provides: “[t]he appropriate authorities of every State shall enforce according
to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of
this section, any custody determination or visitation determination made consistently with
the provisions of this section by a court of another State.” (Emphasis added.)
Subsections (f), (g), and (h) of § 1738A prevent forum shopping by allowing a court to
modify a custody order only when it otherwise has jurisdiction and another court does
not.
[¶19] In addition, all of the states in the union have adopted some version of the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which in
Wyoming is codified at Wyo. Stat. Ann. §§ 20-5-201 through § 20-5-502. 24A Am. Jur.
2d, Divorce & Separation, § 1124 (2015). Under the UCCJEA, a child’s home state
makes the initial custody determination. See Wyo. Stat. Ann. § 20-5-301. “Home state”
is defined as: [T]he state in which a child lived with a parent or a person acting as a
parent for at least six (6) consecutive months immediately before the commencement of a
child custody proceeding.” Section 20-5-202(a)(vii).
[¶20] In this case, California was the child’s home state at the time of the initial custody
determination. However, the parties and the California court recognized that the parties
would be relocating to Wyoming, which would become the child’s home state. As the
child’s home state, Wyoming had authority to modify the California order under
UCCJEA. Sections 20-5-301, 20-5-303. Wyoming law typically requires a material
change of circumstances to modify a custody or visitation determination. However,
under the Supremacy Clause, U.S. Const. art. I, cl.2, federal law preempts state law in
proper cases. Here, federal law requires we give full faith and credit to the California
order as long as it is in effect. See generally, Quenzer v. Quenzer, 653 P.2d 295 (Wyo.
10
1982) (recognizing primacy of federal full faith and credit law in § 1738A over uniform
state laws like the UCCJEA). Pursuant to 28 U.S.C. § 1738A, the California order has to
be enforced according to its terms, and those terms, which were stipulated by the parties
and approved by the California court, state that Mother’s visitation rights may be altered
upon a showing that it is in the best interests of the child, even though no material change
of circumstances has occurred. California law specifically authorizes such provisions to
promote flexibility in visitation orders. See, e.g, In re Marriage of Lucio, 74 Cal.Rptr.3d
803 (Cal. Ct. App. 2008), citing In re Marriage of Brown & Yana, 127 P.3d 28 (Cal.
2006).
[¶21] We addressed a comparable situation in Witowski, 2009 WY 5, 199 P.3d 1072.
That case involved a Virginia child support order which required the father to pay child
support until the child was twenty-three years old as long as she was a full time college
student. We recognized the provision was inconsistent with Wyoming law but stated that
we are required under federal law, 28 U.S.C. § 1738B, to enforce the other state’s child
support order in accordance with its terms until such time as it was properly modified.
Id., ¶¶ 20-21, 199 P.3d at 1077-78. Applying those principles here, the California order
must be enforced according to its terms, including the provision which incorporates the
lower standard for visitation alteration, until that term is properly modified.
[¶22] Furthermore, it is not completely unheard of in Wyoming for a court to allow
minor changes to the terms of a visitation order without a showing of a material change
of circumstances, particularly when the parties have agreed to allow the court to make
such changes. In Zupan, the parties entered into a child custody agreement which
alternated residential custody of the children on an annual basis. By its own terms, the
agreement expired after five years. Zupan, ¶¶ 4-5, 230 P.3d at 332. When the agreement
expired, the parties attempted mediation but it was not successful. The parties then
petitioned the court to determine the future custodial arrangement for the minor children.
Id., ¶ 7, 230 P.3d at 332. Although the district court did not find a material change of
circumstances and, therefore, left the custody arrangement the same, it did revise the
visitation provisions of the agreement. Id., ¶¶ 18, 26, 230 P.3d at 334, 336-37. We
recognized the change of circumstances requirement on appeal, but affirmed the district
court’s changes to visitation as being in the best interests of the children. Id., ¶ 36, 230
P.3d at 339.
[¶23] Similarly, in Inman v. Williams, 2009 WY 51, 205 P.3d 185 (Wyo. 2009), we
affirmed, in all relevant respects, the district court’s order which found no material
change of circumstances had been shown for change of custody but ordered changes to
the visitation provisions of the decree. Of particular interest, we recognized in Inman that
visitation provisions may need to be flexible in order to meet the best interests of the
children. Id., ¶ 4, 205 P.3d at 188-89. See also Basolo v. Basolo, 907 P.2d 348, 355
(Wyo. 1995); Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1 (1926) (approving flexibility in
visitation orders).
11
[¶24] Under the particular circumstances presented here, including the California court’s
and the parties’ recognition that the visitation provisions of the order may be revised to
promote the child’s best interest without a material change of circumstances, we conclude
the district court had authority to revise those portions of the decree as appropriate. On
remand, the district court shall conduct a best interests analysis to determine if
modification of the visitation provisions of the California order is warranted. Given the
contentious nature of the parties’ relationship and these proceedings, perhaps
consideration should be given to appointment of a guardian ad litem to represent the
child’s best interests.
3. Material Change of Circumstances
[¶25] Although we have already ruled that a material change of circumstances was not
required for the district court to revise the visitation provisions of the California order, we
still must address whether Mother established a material change of circumstances to
justify modification of the custody provision of the order. The district court concluded
Mother had not met the threshold requirement because she had not proven a material
change of circumstances had occurred since entry of the order.
[¶26] Initially, Mother argues the district court erred by requiring her to meet a higher
burden for showing a material change of circumstances in this case. She directs us to the
following comment made by the district court during the trial in this case:
[G]iven the nature of this case, whatever happened in
California – I mean, this is an extraordinarily unusual order
from California. I have to assume . . . there is a basis for it. I
don’t want to get into that can of worms and re-litigate it, but,
you know, it is what it is.
So, in the context of that order and whatever behavior
got to that point, material change of circumstances may be,
you know, a very high burden in this case as opposed to
another case. And I think that’s the law, you know, material
change of circumstances is factual driven, factual specific to
each case. And this case, you know, one could argue, and I
will likely find that in this case material change of
circumstances is higher than some of the other cases I preside
over.
[¶27] Mother’s claim has no merit; the district court’s order denying her petition for
modification does not indicate that it imposed a higher burden upon Mother than the law
requires for showing a material change of circumstances. It recited the correct standard
12
and, as we will explain below, it properly applied its discretion in determining that
Mother had not established a material change of circumstances to modify custody. The
district court’s comment was likely a reference to the language in the California order,
which was stipulated by Mother and Father, recognizing that Mother had previously
taken the child without Father’s approval to Norway and did not return until several
months later after Father had obtained relief in a Hague Convention proceeding.
[¶28] Mother seems to refuse to take responsibility for her actions and, in fact, referred
to the Hague Convention laws regarding international child abduction as
“extremely unfair.” She insisted that she had to leave with the child to escape the
Father’s domestic violence. However, there apparently was no finding by any
international or California court that the alleged violence ever took place or, perhaps
more importantly, that any such abuse justified Mother’s actions. Abduction of a child
by a parent is always wrong and weighs against custody and visitation privileges. See,
e.g., Basolo, 907 P.2d at 354-55. The district court correctly recognized the significance
of this history in conducting its material change of circumstances analysis.
[¶29] A district court’s determination of whether a material change in circumstances has
occurred is primarily factual and entitled to great deference. Hanson, ¶ 13, 280 P.3d at
1192. We decide whether, “examining the record in the light most favorable to the
successful party, the district court could have reasonably concluded as it did.” Id.,
quoting Morris v. Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo. 2007). In order to
be considered material and justify reopening the decree, the change in circumstances
must affect the welfare of the child. Hanson, ¶ 34, 280 P.3d at 1197; Kappen v. Kappen,
2015 WY 3, ¶ 15, 341 P.3d 377, 382 (Wyo. 2015).
[¶30] Mother argues that a number of circumstances had changed since the California
order was entered and they were sufficiently material to justify modification of the
custody provision. First, she asserts that she and the child had a good relationship prior
to the California order, but their relationship had deteriorated since. She directs us to a
transcript from the California proceedings in which one of the visitation monitors
testified that the child enjoyed visitation with Mother. The transcript was part of a packet
that Father requested the district court judicially notice at trial. Mother actively contested
Father’s motion, and the district court refused to take judicial notice of the whole packet
but told the parties that if they wanted a certain document to be considered, they should
present it as evidence at the hearing, give the opposing party the opportunity to object,
and the district court would rule on its admissibility. Neither party offered the transcript
as evidence at trial. Given the information was not part of the trial evidence, the district
court certainly cannot be said to have abused its discretion by failing to consider it.
[¶31] Next, Mother asserts that Father’s and Stepmother’s efforts to alienate the child
from her amount to a material change of circumstances. She claims the evidence showed
that Father and Stepmother interfered with the Skype communications before Mother
13
moved to Wyoming and improperly required that she provide various documentation,
such as copies of her driver’s license and automobile insurance and proof of residency
and immigration status, before allowing her to exercise visitation in Wyoming. Father
also contacted the United States Department of Immigration to have Mother deported.
The district court properly ruled this evidence was insufficient to show a material change
of circumstances because Father’s actions were not ongoing at the time of trial. Remote
and isolated instances of conduct do not usually satisfy the requirements for establishing
a material change of circumstances. Hanson, ¶ 43, 280 P.3d at 1199.
[¶32] Mother also directs us to evidence that the child began to refer to Stepmother as
“mommy” and Mother as “Heidi,” as evidence of Father’s efforts to alienate her from the
child. Confusing a child about the identity or position of the non-custodial parent is not
appropriate and could, in proper circumstances, establish parental alienation to the point
of being a material change in circumstances. Gaines v. Doby, 773 P.2d 442, 446 (Wyo.
1989). However, the evidence did not establish that Father improperly encouraged the
child to view Stepmother as her primary maternal figure. Stepmother testified they did
not inappropriately influence the child in that manner. Instead, she testified that the child
began addressing Stepmother as “mommy” because the child’s stepbrother did. This was
a reasonable explanation because, when the child returned from Norway, she did not
speak English and the stepbrother helped her learn the language.
[¶33] The district court made the following findings regarding Mother’s parental
alienation claims:
54. Mother did present some evidence that Father and
Stepmother have attempted to alienate the child from her.
They have repeatedly informed [the child] that she was
kidnapped as an infant and have given the child “kidnapping
training” to make sure that she knows what to do if she is ever
re-abducted. This has made the child fearful and anxious to
be left alone with Mother. Father has also tried to have
Mother deported.
55. Mother likewise has engaged in some behavior that
could alienate the child from Father. She has repeatedly
asked the child if Father ever says or does anything to hurt the
child and consistently quizzes the child about the way she is
treated in Father’s house and about Father’s lifestyle. Her
behavior borders on coaching the child into thinking she is
being abused by Father.
56. Mother did present some evidence that Father has
engaged in some conduct that makes the visitation exchanges
14
contentious. However, Father also presented evidence that
Mother has also engaged in behavior that contributes to the
conflict at these exchanges, including secretly videotaping the
child and questioning her about Father’s lifestyle.
[¶34] The trial evidence included the parties’ testimony and videotapes of various
interactions between the parties and the child. As the district court noted, the evidence
shows poor judgment by both parties and attempts by each to convince the child that the
other parent has mistreated her. The district court’s findings are supported by the
evidence and Mother does not demonstrate that they are incorrect or amount to an abuse
of discretion. Instead, Mother’s argument focuses on her evidence and perspective on the
facts, which is actually the opposite of our standard of review requiring us to give the
facts all reasonable inferences to support the prevailing party’s view. See Willis v. Davis,
2013 WY 44, ¶ 7, 299 P.3d 88, 91 (Wyo. 2013). The district court aptly summed up the
situation with this finding:
57. While the behavior of both parties has sometimes been
appalling, and is definitely not in the best interests of the
child, it does not amount to a material change in
circumstances. These parties have had an antagonistic
relationship since Mother took the child to Norway in 2008.
If anything, their relationship and behavior has improved with
the assistance of Ms. Smidt.
[¶35] As the district court recognized, the parties’ behavior toward one another was not
a new development or, in other words, a material change of circumstances. The
California order contains the following provision:
24. No Discussion in Presence of Minor Child. The
parties shall not discuss the other parent or the child custody
litigation and proceedings with the minor child or with
another within the hearing distance of the minor child.
Neither parent shall make derogatory remarks about the other
parent or the parent’s family in the presence of the minor
child or within the hearing distance of the minor child.
The fact that this provision was included in the California order shows that the acrimony
between the parties was long standing and pervasive.
[¶36] Mother also argues a material change of circumstances occurred because there was
no longer any risk she would abscond with the child. Mother asserts that the protections
in place, including the $50,000 bond, her inability to access the child’s passports, and
Mother’s status as a permanent resident of the United States, eliminate any concern about
15
a future wrongful taking of the child. The district court specifically found it was not
convinced Mother was no longer a flight risk. The evidence supports that finding.
Mother has had only sporadic employment since moving to Sheridan, her primary means
of support appears to be gifts or loans from her parents in Norway, she does not own any
real property in Sheridan, and there was no evidence that she has any family or other
support network in Sheridan. It appears that her only tie to the community is the child.
Given her history of illegally removing the child from the country and keeping her from
Father and Mother’s lack of ties to the Sheridan community, the district court properly
rejected Mother’s claim that she was no longer a flight risk. 5
[¶37] Mother also argues that she established a material change of circumstances based
upon violence in Father’s household. As we stated earlier, Mother asserted that Father’s
abuse of her prompted her to flee with the child to Norway, but that allegation was never
accepted by any court. She claims, however, there is evidence of on-going abuse in
Father’s home and that amounts to a material change in circumstances. The trial
evidence included testimony and a police report about an instance where Father hit
Stepmother on the head with his open hand for using his work computer. Father was
arrested for “unlawful touch,” but the charges were dropped. In addition, Father and
Stepmother had disciplined the children by requiring them to take cold showers and/or
eat hot sauce.
[¶38] Ms. Smidt addressed the treatment of the children during therapy and with her list
of rules. She told Father and Stepmother that their disciplinary methods were improper
and, in her opinion, constituted abuse and directed them to desist. There is no indication
they failed to follow her directions. Moreover, the Department of Family Services
investigated the incidents and concluded the children had not been abused within the
meaning of the law. See Willis, ¶¶ 16-17, 299 P.3d at 93 (no material change in
circumstances created by stepbrother’s alleged physical abuse of children because the
allegations were not substantiated by the police and custodial parent took steps to assure
the stepbrother was not left alone with the children). With regard to the spousal abuse,
we note that it was a single instance that was quickly dismissed by the county prosecutor.
[¶39] Household abuse is always improper and contrary to the best interests of the
children. Section 20-2-201(c) states:
(c) The court shall consider evidence of spousal abuse
or child abuse as being contrary to the best interest of the
children. If the court finds that family violence has occurred,
the court shall make arrangements for visitation that best
5
This ruling also supports the district court’s refusal to reduce or eliminate the bond requirement. See
Stonham v. Widiastuti, 2003 WY 157, ¶ 28, 79 P.3d 1188, 1197 (Wyo. 2003) (district court has discretion
to impose a bond requirement to ensure parent complies with custody and visitation portions of a decree).
16
protects the children and the abused spouse from further
harm.
While the incidents of violence and improper discipline in Father’s household give us
pause, we generally perceive them to be isolated and remote rather than on-going.
Consequently, we cannot say the district court abused its discretion by failing to find they
amounted to a material change of circumstances. See, e.g., Hanson, ¶ 47, 280 P.3d at
1200 (isolated or remote actions that were not on-going did not justify a change of
custody).
[¶40] Although their precise arguments may have changed over time, in large part, the
parties’ complaints and positions are the same as they were at the time of the California
order. Mother claims Father is abusive, and Father claims Mother is a flight risk. We
rejected a similar type of argument in Hanson, ¶ 48, 280 P.3d at 1200.
Much of Father’s case focused on proving he was a better
parent than Mother. His arguments would have been
appropriate in an initial custody determination. However, the
standard is different in a modification proceeding because
changes in custody are not favored and should not be granted
except in clear cases. See, e.g., Leitner v. Lonabaugh, 402
P.2d 713, 718–19 (Wyo.1965). As we said in CLH, ¶ 9, 129
P.3d at 877: “Under the principles of res judicata, a court does
not have the discretion to reopen a custody order simply
because, looking at the best interests of the child, it believes it
can make a better decision than was made in the prior custody
order.” Father, thus, had the burden of establishing a material
change of circumstances before the best interest analysis was
appropriate. Id., ¶ 11, 129 P.3d at 877. See also, Selvey v.
Selvey, 2004 WY 166, ¶ 16, 102 P.3d 210, 214–15
(Wyo.2004). On this record, we hold the district court could
have reasonably concluded Father failed to establish a
material change of circumstances. Consequently, it did not
abuse its discretion by denying Father's request for a change
of custody.
Id., quoting Morris, ¶ 27, 170 P.3d at 93. See also Kappen, ¶¶ 30-32, 341 P.3d at 385-86.
[¶41] By the time of the trial, the parties’ interactions, the visitation exchanges and the
child’s behavior during visitation had improved considerably. The district court
attributed these changes largely to Ms. Smidt’s assistance. Ms. Smidt testified that her
rules were intended to address the child’s anxiety caused by the parties’ interactions with
17
one another and the child. Her counseling had facilitated better communication and
behavior by the parties and the child.
[¶42] The district court properly recognized the improved conditions. We have said that
in determining whether there has been a material change of circumstances, the court may
consider the situation at the time of trial, rather than at the time of the petition. See
Hanson, ¶¶ 35-36, 280 P.3d at 1197-98 (district court properly ignored Father’s
contention that Mother’s relocation out of state was a material change of circumstances
since she had moved back to Wyoming by the time of the trial).
Given stability in the child’s life is of utmost importance and custody changes are not
favored and should only be granted in clear cases, we conclude the district court did not
abuse its discretion by ruling that Mother had not proven a material change of
circumstances to justify reopening the California custody order. See Kappen, ¶ 12, 341
P.3d at 382.
[¶43] Affirmed in part and reversed and remanded in part for further proceedings
consistent with this opinion.
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