Arnott v. Paula

Decision Date28 December 2012
Docket NumberNo. S–12–0089.,S–12–0089.
PartiesJeffrey R. ARNOTT, Appellant (Defendant), v. Paula a/k/a Polly A. ARNOTT, Appellee (Plaintiff).
CourtWyoming Supreme Court


Representing Appellant: Leah K. Corrigan and James K. Lubing, Lubing & Corrigan, LLC, Jackson, Wyoming.

Representing Appellee: Anne B. Ashley, Anne B. Ashley, LLC, Jackson, Wyoming.

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

Before KITE, C.J., HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.

BURKE, Justice.

[¶ 1] Appellant, Jeffrey Arnott (Father), challenges the district court's order denying his petition for modification of the parties' divorce decree, which granted primary physical custody of the parties' two daughters to Appellee, Paula (Polly) Arnott (Mother). Father sought modification of custody after Mother gave notice of her intention to relocate to Virginia with the children. Relying on this Court's decision in Watt v. Watt, 971 P.2d 608, 614 (Wyo.1999), the district court applied a “strong presumption in favor of the right of a custodial parent to relocate with her children” and determined that Father had failed to establish a material change in circumstances warranting an analysis of whether modification would be in the best interests of the children.

[¶ 2] On appeal, Father contends that our decision in Watt should be overturned. He asserts that application of that precedent undermines his constitutionally protected parenting rights and the state's interest in promoting the best interests of the children. We agree and hold that application of a presumption favoring the relocating custodial parent should not be applied in determining whether there has been a material change in circumstances. To the extent that our decision in Watt mandates application of such a presumption, it is hereby overturned. Because the district court applied this presumption in determining that Father had failed to meet his burden of proving a material change in circumstances, we reverse and remand for further proceedings consistent with this opinion.


[¶ 3] Father presents the following issues for our consideration:

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

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

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

Mother states the issues as follows:

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

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

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


[¶ 4] The parties were married in 2001 and lived together in Jackson, Wyoming until their divorce in 2010. Their first daughter, AGA, was born on June 6, 2003, and their second daughter, ALA, was born on June 30, 2005. At the time of their divorce, the parties agreed that they would share joint legal custody of the children, and that Mother would have primary physical custody, subject to Father's reasonable visitation. The parties agreed to “consult with each other regarding major decisions involving the children, including but not limited to their education, health, and other issues involving the children's welfare.” The parties agreed that Father would have visitation every other weekend, as well as on alternating Thursdays. They also agreed to Father's visitation on alternating holidays and during two two-week periods in the summer. The decree of divorce required Mother to provide notice if she intended to relocate.

[¶ 5] On July 8, 2011, Mother filed a notice of intent to relocate, indicating that she intended to move with the children to Mechanicsville, Virginia on August 13, 2011. Ten days later, Father filed a petition for modification of custody alleging that Mother's anticipated move constituted a material change in circumstances with respect to custody and visitation. The petition also alleged that it was in the best interests of the children for Father to have primary residential custody. On Father's motion, the court issued a temporary order enjoining Mother from removing the children from Wyoming pending a hearing on the merits of Father's petition.

[¶ 6] Mother moved to dismiss the petition to modify custody and visitation, asserting that under this Court's decision in Watt, relocation by a custodial parent, by itself, is not a material change in circumstances sufficient to justify a modification of child custody. The district court converted the motion to dismiss to a motion for summary judgment after Father filed an affidavit with his response to the motion, and the court invited the parties to supplement their pleadings and provide additional evidence. After a hearing, the court denied Mother's motion, finding there were issues of material fact as to “whether the circumstances surrounding [Mother's] proposed move to Virginia would constitute a material change of circumstances justifying a modification of the parties' custody arrangement.” A hearing on Father's petition was held in early November, 2011.

[¶ 7] The district court began the hearing by noting that Watt and its progeny had established a presumption in favor of the custodial parent's right to relocate with the children:

Whether you disagree with it or whether you agree with it and whether you like it or not, the law is very clear in Wyoming when it comes to considering whether a material and substantial change of circumstances exists sufficient to modify custody when a custodial parent wishes to relocate with [the] children.

It's a high standard, the—there's a strong presumption in Wyoming in favor of the right of a custodial parent to relocate with [the] children, assuming certain criteria are satisfied....

During the hearing, the court received testimony from several witnesses, including the parties, the children's dual-language immersion teacher, a nurse from their pediatrician's office, Mother's sister, and a close personal friend of Father's. At the conclusion of the hearing, the court issued its ruling from the bench.

[¶ 8] The court found that the children had “an outstanding set of parents” and “an incredibly involved father whose life revolves around his relationship with his children.” The court noted that both Mother and Father were exemplary parents, that the children were “thriving” in their current environment, and that the “arrangement here in Jackson has worked incredibly well.” The court further commented that “If I had my wish it would be that Ms. Arnott would find some way to stay here or nearer so that the extraordinary relationship that Mr. Arnott has with his children could continue to blossom in a similar fashion.” But the court again noted that Wyoming precedent had created a “strong presumption in favor of allowing the custodial parent to move with [the] children” and had placed a “difficult burden” on the noncustodial parent to show a material change in circumstances based on the custodial parent's relocation.

[¶ 9] Following the criteria set forth in Watt, the district court determined that Mother's motives for the relocation were legitimate, sincere, and in good faith. The court also found that Mother's relocation would still permit Father's reasonable visitation if visitation was expanded. The court concluded that Father had not established that Mother's relocation constituted a material change of circumstances sufficient to warrant consideration of a change in custody. The court's oral ruling was memorialized in a written Order Denying Defendant's Petition for Modification of Custody and Visitation, issued on December 27, 2011. Mother moved to Virginia with the children shortly thereafter.

[¶ 10] After both parties submitted proposals for a revised visitation schedule, the court ordered a visitation plan for Father that increased his summer visitation to eight weeks, and expanded visitation during school holidays and during a week in February. The visitation plan also allowed Father to visit the children at any time in Virginia with advance notice. Father appeals from the district court's order.


[¶ 11] Father contends the district court misapplied Wyoming law with respect to whether an interstate relocation constitutes a “material change in circumstances” sufficient to warrant modification of child custody. This Court reviews questions of law de novo. Willis v. Davis, 2010 WY 149, ¶ 10, 243 P.3d 568, 570 (Wyo.2010). Father also claims the district court's decision abridged his constitutional right to raise his children, and asks this Court to overrule the decision in Watt. We review constitutional issues de novo. Hanson v. Belveal, 2012 WY 98, ¶ 12, 280 P.3d 1186, 1191 (Wyo.2012). Finally, Father asserts that the district court exceeded “the bounds of reason” in determining that Mother's relocation would still permit reasonable visitation. On this issue, we review for an abuse of discretion. “The trial court has discretion in determining custody and visitation issues to be in the best interests of the children: ‘Custody, visitation, child support, and...

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