Jacobson v. Kidd

• Decision Date: 17 September 2018
• Docket Number: S-17-0332
• Parties: Matthew T. JACOBSON, Appellant (Defendant), v. Aimee V. KIDD f/k/a Aimee V. Jacobson, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

426 P.3d 813

Matthew T. JACOBSON, Appellant (Defendant),

v.Aimee V. KIDD f/k/a Aimee V. Jacobson, Appellee (Plaintiff).

S-17-0332

Supreme Court of Wyoming.

September 17, 2018

Representing Appellant: Linda J. Steiner and Abigail E. Fournier, Steiner Law, LLC, Cheyenne, Wyoming.

Representing Appellee: No appearance.

Guardian Ad Litem: Jacqueline K. Brown, Brown Law Office, P.C., Casper, Wyoming.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

[¶1] Appellant Matthew T. Jacobson (Father) appeals from the district court’s order denying his petition to modify the order granting Appellee Aimee V. Kidd (Mother) primary custody of their children. Father claims the district court abused its discretion by concluding he had not shown a material change in circumstances to warrant modification of the order. Mother did not file a brief on appeal.¹

[¶2] We reverse and remand.

ISSUE

[¶3] The dispositive issue in this case is: Did the district court abuse its discretion by concluding that Father had not demonstrated a material change in circumstances to justify re-opening the custody and visitation order?

FACTS²

[¶4] Mother and Father married in 2007, and two daughters were born to them – MJ in 2007 and KJ in 2008. Mother already had two sons from a prior marriage to Chris Jones – CJ and ZJ. Mother and Father divorced in 2009, and the district court awarded Mother primary physical custody of the girls. Father was awarded visitation in a complicated order organized around his work schedule, but generally included visitation from Thursday at noon until Sunday at 4:00 p.m. on alternating weeks. Also, during the "off week" (when Father did not have the girls from Thursday to Sunday), Father was entitled to one overnight visitation. The order included a holiday visitation schedule and a summer visitation schedule which allowed longer consecutive periods of visitation as the girls got older. In addition, the order stated that "[e]ach party shall have the right of first refusal for watching the children when the other parent is in need of child care for a period of more than two (2) consecutive hours."

[¶5] On August 15, 2011, Father filed a petition to modify the divorce decree to give him sole custody of the girls. He alleged:

1) Mother had attempted suicide by taking an overdose of medication while the children were in her care;

2) Mother filed a false report that, while working as a registered nurse, Father stole medication from his employer;

3) On June 9, 2010, while having custody of the children, Mother was arrested for public intoxication and urinating on Father’s ex-girlfriend’s lawn; and

4) Mother did not abide by the visitation requirements of the divorce decree.

[¶6] The parties reached a settlement during a September 22, 2011 hearing on Father’s modification petition. For reasons not evident in the record, an order on the settlement agreement was not entered for eight and one-half months. On June 5, 2012, the district court entered a stipulated and modified decree of divorce. The order continued the provisions of the original decree not modified, including that Mother was the primary custodian, but contained the following changes:

1) Father was given visitation with the girls every other Wednesday from approximately 3:30 p.m. to Sunday at 5:00 p.m.

2) If Father moved to Casper (which he did), he was given "the option of two overnight[ ]s (3:30 p.m. to 8:00 a.m.) with the children in his ‘off-week’ (not consecutive and not on the weekend)."

3) Mother was required to engage in professional counseling and provide Father with sufficient evidence that she was "attending counseling as recommended by the counselor of her choosing."

4) Mother and Father agreed to "contact each other immediately in the event any situation arises whereby they are unable to personally care for the children. Should this situation arise, the parent who cannot personally care for the children shall allow the other parent to have the children during this time.

[¶7] On September 29, 2015, Father filed the current petition to modify custody, visitation and child support, requesting primary custody of the girls. He asserted that there had been a material change in circumstances since the 2012 modification because Mother had attempted suicide for a second time and she was "unstable and unfit to have primary custody of the children." On January 8, 2016, Father filed a motion to show cause as to why Mother should not be held in contempt of court. He alleged Mother violated the terms of the modified decree in numerous instances.

[¶8] The district court held an evidentiary hearing on Father’s modification petition and motion to show cause on May 9-10, 2017. At the hearing, evidence was presented showing the following incidents involving Mother:

• In March 2012, Mother’s boyfriend, Ty Lorenzen, held her and MJ hostage inside his house with a gun.³ Mother texted Father during the standoff, and he retrieved the child through a window. Father called the police to report the incident and they arrived with "rifles and guns" and blocked off the street. The police got Mr. Lorenzen out of the house, and Mother "was safe at that point."

• Father testified that he talked to Mother after the event about "why this can’t happen" and "he [Mr. Lorenzen] can’t be around our kids anymore." Mother testified that she continued her relationship with Mr. Lorenzen for only one week after the March 2012 incident.

• However, on September 1, 2012, Mother was arrested for being a pedestrian under the influence on a roadway when she was found walking down the highway intoxicated. She had been in a pickup with Mr. Lorenzen, and he was arrested for driving while under the influence. Mother resisted the deputies’ attempts to place her in the patrol vehicle. She later claimed Mr. Lorenzen had beaten her.

• On Labor Day 2012 or 2013,⁴ Mother was arrested. She claimed that Mr. Lorenzen beat "the crap" out of her and she thought the police were going to help her. Instead, they arrested her and eventually "hogtied her."

• In November 2012, a report was made to police that Mr. Lorenzen was suicidal. At the evidentiary hearing in this case, Mother denied that Mr. Lorenzen was suicidal. She apparently told the officers that Mr. Lorenzen had grabbed her by the throat, but then explained that they were "trying to get [Mr. Lorenzen] out of [trouble for] beating the crap out of [her]" by saying Mr. Lorenzen was suicidal. Mother initially refused to give a statement to the police. She eventually gave a statement, although she admitted she "certainly didn’t want to." She stated that she had a visible injury, but she refused to allow the police to photograph it.

• On January 18, 2013, a friend of Mother’s called the police for a welfare check on Mother. The friend reported that Mother "was in a bad relationship with a male named [Mr.] Lorenzen" and she had told him to "call police immediately if [the friend] knew Lorenzen was at [Mother’s] residence." When the police arrived at her house, Mother confirmed Mr. Lorenzen was there and said that they "had worked out their issues and were back together."

• In January 2013 or 2014, Mother called the police asking for a civil standby while Mr. Lorenzen removed his belongings from her residence. She stated that she wanted to get the children away from the residence before he came to get his belongings.

• In March 2013 or 2014, Mr. Lorenzen shot himself in the head while Mother was present. Shortly after that incident she requested a protection order because he was harassing her by calling her from the Wyoming Behavioral Institute. She also posted on Facebook that if Mr. Lorenzen ever came near her or her children she would kill him. Mother stated it was "the last straw" and "he couldn’t be around us anymore."

• In early 2014, Mother had a child, BK, with Sergio Hernandez. She denied having an on-going romantic relationship with Mr. Hernandez and stated that her other children did not know him until after she was pregnant.

• On January 10, 2014, Mother called the police alleging that Father had dropped KJ off at her house when she was not home. Father claimed that Mother was home and was just trying to get him in trouble.

• On June 28, 2014, Mr. Hernandez told police that Mother arrived at his residence drunk and tried to have sex with him.

• On October 18, 2014, Mr. Hernandez died of an apparent drug overdose. Mother testified that Mr. Hernandez was "over served alcohol, blood poison. He had sleep apnea

, and I believe he had some narcotics on board as well." She also testified that, more than once, she let Mr. Hernandez "sleep it off" on her couch. Mother, however, denied that the children were aware of "his issues."

• On February 21, 2015, the police were called to a fight at a bar in Casper. It is unclear from the record whether Mother was involved in the fight, but she was at the bar during the fight and was required to leave. An officer testified that Mother was intoxicated and, had she not taken a taxi home, "she probably would have wound up going to jail for public intoxication."

• On September 7, 2015, another of Mother’s ex-boyfriends, Christopher Edmonds, called the police to report that Mother came to his house unannounced. She drank "a few beers" and tried to get in bed with him. He got out of bed and told her to go home. He stated that Mother then locked herself in the bathroom, where later he found her lying on the floor with an empty bottle of hydrocodone nearby. When the police arrived, Mother and Mr. Edmonds were sitting on the couch. She denied taking the pills and stated she was just "trying to coerce Mr. Edmonds into showing her love and give her affection." Mother was arrested for interference with a peace officer because she gave the officer false information about her name, date of birth and telephone number.

• On October 10, 2015, Father enrolled the girls in counseling. When Mother found out, she called the counselor and said she was the...