Baer v. Baer
| Decision Date | 30 December 2022 |
| Docket Number | S-22-0052 |
| Citation | 522 P.3d 628 |
| Parties | Elisha Schlafke BAER, Appellant (Defendant), v. John S. BAER III, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Letitia C. Abromats, Letitia C. Abromats, P.C., Greybull, Wyoming.
Representing Appellee: Christopher J. King, APEX Legal, P.C., Worland, Wyoming.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] The district court granted John S. Baer, III's (Father) petition to modify the parties’ divorce decree by awarding him primary physical custody of the children and restricting Elisha Schlafke Baer's (Mother) visitation with the children. Mother appeals that decision and a temporary custody and visitation order entered while the modification action was pending. We find no abuse of discretion and affirm.
[¶2] The issues for our review are:
[¶3] Mother and Father married in 2013 and had two children – TJB (a son born in 2014) and ERB (a daughter born in 2016). The parties divorced in 2019. They appeared before the district court pro se and agreed on the terms of the divorce decree which granted Father "sole legal and physical custody" of the children. In explaining this choice of custody, they stated: Despite their agreement Father would have sole physical custody of the children, the visitation provisions of the decree stated the parties would have alternating weeks of custody.1 The parties also agreed neither of them would pay child support. The district court signed the decree without modifying any of these terms.
[¶4] On June 22, 2020, Father filed a petition to modify the parties’ divorce decree to limit Mother's visitation with the children and require her to pay child support. Father alleged a material and substantial change in circumstances had occurred since the divorce which warranted modification of the decree because, although the decree awarded each party equal time with the children, he had been caring for the children "more than 80% of the time." He additionally claimed Mother "fail[ed] to inform [him] of where the minor children [were] located" when they were in her custody, "fail[ed] to provide adequate supervision" of the children, was "often at the bar to late hours" while the children were in her care, and was "acting erratically and not in a stable manner." Father also filed a motion to temporarily modify Mother's visitation with the children pending final resolution of his petition. Besides the allegations in his petition, Father asserted in his temporary custody motion that Mother had returned the children to him with injuries and inadequate clothing.
[¶5] Mother filed an answer and counterclaim seeking primary physical custody of the children and child support. She stated that, since the divorce, she had "settled into a job and home." She claimed Father was withholding the children from her, had coerced her to sign the divorce decree and misled her about its terms, and was physically abusive during their marriage. Mother also contested Father's request for a temporary modification of her visitation rights and sought custody of the children and child support while the action was pending.
[¶6] On August 25, 2020, the district court held an evidentiary hearing to address temporary custody of the children. Father presented evidence demonstrating that, until recently, he and his girlfriend, Brandy Holloway, had watched the children while Mother worked during her custodial weeks. Mother was often late dropping the children off in the mornings and picking them up after work. Frequently, they were not ready for school because they were not dressed in appropriate clothes, were dirty and had messy hair, and were hungry. Father voiced concern the children were not being properly supervised while in Mother's care because they had arrived at his house with various injuries, some of which Mother did not "even know where they came from." Father stated Mother had recently found another person to provide childcare while she worked, but she had refused to provide him with the provider's name, phone number, or location.
[¶7] Father also testified Mother did not have a suitable residence for the children. He stated Mother lived with her boyfriend, James Bidleman, in a place that lacked sufficient bedrooms. Both children had slept in a bed with Mr. Bidleman's six-year-old son until Father expressed concern about ERB sleeping with two boys. Mother then moved her to the couch to sleep. Father was also concerned about Mother's alcohol use. He had witnessed her car parked outside a bar on multiple occasions while the children were in her custody, and she did not inform him of who was watching the children while she was at the bar. Father testified Mother consumed significant amounts of alcohol while they were married but, based upon the amount of time she was spending in the bar, he believed her alcohol consumption had increased. During the Greybull Days of ’49 celebration in June 2020, Father took the children from Mr. Bidleman when he saw Mr. Bidleman drinking alcohol and Mother was "nowhere in sight." Father admitted on cross-examination that he had not let Mother see the children since that time.
[¶8] Mother testified she had changed childcare providers because Father had become hostile when she picked up the children. She refused to give Father information about the new provider because she was concerned about what Father would do to the young female provider. This concern originated from her assertion that Father had given her a black eye, "drop-kneed" her, and held her hostage in her own home when they were married. She also testified that, after they divorced, Father pushed her during an exchange of the children.
[¶9] Mother explained Mr. Bidleman was no longer her boyfriend; however, they remained friends and continued to share a bedroom because of a "lack of space" in the residence. Mother testified she and Mr. Bidleman were "planning on putting ... a bigger trailer on [their] property." The new trailer would have three bedrooms so Mr. Bidleman would have his own room, the two boys would share a room with bunkbeds, and Mother and ERB would share a room.
[¶10] Mother acknowledged she went to the bar "quite a bit" but claimed she did so to practice playing darts because she was interested in joining a dart league. She admitted to leaving the children with Mr. Bidleman's mother "maybe twice" to go to the bar but said the children were already asleep when she left. When asked about her "pattern of drinking," Mother testified she "frequent[ed] the bar a lot more" when she did not have the children. She admitted to having "one tall can" of an alcoholic beverage each night after the children went to bed when they were in her care.
[¶11] In its oral ruling immediately after the hearing, the district court ordered Mother not to use alcohol while she was with the children. The written temporary custody order retained Father as sole legal and physical custodian of the children. It changed Mother's visitation to three weekend days and two weekdays per month but forbade her from keeping the children overnight. The court justified the order by stating:
[T]he [c]ourt has concerns related to [Mother's] use of alcohol and [Mother's] living situation and specifically the sleeping arrangements within the home and based upon those concerns believes the stability of the children [would be] better served with a resolution of the living arrangements.
However, the district court also ruled that "[u]pon modification of the sleeping arrangements and notice thereof [it] may hold an additional hearing on modification of visitation." True to its word, when Mother obtained suitable housing, the court modified the temporary custody order to allow Mother overnight weekend visitation with the children.
[¶12] The trial on the parties’ competing petitions for modification of custody and visitation proceeded with the same general themes. Ms. Holloway testified she believed Mother was still drinking alcohol because she had recently received two middle-of-the-night calls from Mother for no reason. This was "similar in pattern and behavior to when [Mother] was going to the bars at all hours." Father testified he believed Mother was still drinking because the people she surrounded herself with were "[j]ust the normal drunks at a bar that go daily, nightly." Mother denied having a drinking problem. She testified she had rarely been to the bar since the temporary custody hearing. She said she no longer drank when the children were in her care and only consumed "half a beer to a beer after work" when they were not with her. Mother admitted to making one late-night call to Ms. Holloway, but said it was a mistake because she had intended to call her boyfriend.
[¶13] Ms. Holloway and Father testified the children's lives had improved since the temporary custody orders were in place. Ms. Holloway stated that, when Mother had custody on alternating weeks, she often did not pick the children up until...
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Gardels v. Bowling
...for the parties to have "50/50 visitation with HB," which amounted to shared custody. See Baer v. Baer, 2022 WY 165, ¶ 3 n.1, 522 P.3d 628 (Wyo. 2022) (awarding parents equal time with children is properly characterized as joint or shared custody rather than visitation) (citations omitted).......