Gardels v. Bowling

Decision Date19 January 2023
Docket NumberS-22-0143
Citation522 P.3d 1047
Parties Laura Christine GARDELS n/k/a Laura Christine Birt, Appellant (Petitioner), v. Phillip Joseph BOWLING, Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellant: Tracy L. Zubrod, Zubrod Law Office, P.C., Cheyenne, Wyoming.

Representing Appellee: M.J. Hall, Lance & Hall LLP, Cheyenne, Wyoming.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

KAUTZ, Justice.

[¶1] The district court granted Phillip Joseph Bowling's (Father) petition to modify a child custody order which granted Laura Christine Gardels n/k/a Laura Christine Birt (Mother) primary custody of the parties’ daughter, HB. The court's new order establishes shared custody of HB. Mother claims the district court abused its discretion by finding a material change of circumstances since the original order and by determining shared custody was in HB's best interests. Finding no abuse of discretion, we affirm.

ISSUES

[¶2] The issues for our review are:

1. Did the district court abuse its discretion by finding a material change in circumstances sufficient to reopen the original custody and visitation order?
2. Did the district court abuse its discretion by concluding shared custody was in HB's best interests even though the parties were unable to effectively communicate with one another?
3. Did the district court abuse its discretion by failing to adequately consider HB's sibling relationships in its best interests analysis?
4. Did the district court abuse its discretion by failing to adequately consider Mother's status as HB's primary caregiver in its best interests analysis?
FACTS

[¶3] HB was born in April 2018. Because Mother and Father were not married and had ended their relationship, they utilized a paternity action to determine their respective parental rights and obligations. On January 9, 2019, the district court entered an order which established Father's paternity of HB, placed custody of HB with Mother, granted Father visitation, and detailed the parties’ obligations to communicate and cooperate with each other regarding many decisions about HB. The court created a graduated visitation schedule which, as relevant here, gave Father two overnight visits every other week and required the parties to communicate and jointly decide on Father's visitation times. If the parties were unable to agree, the order specified Monday and Tuesday as Father's default visitation nights and deferred to Mother's parenting decisions. The Monday and Tuesday nights originally worked for Father because, as a realtor, he often had to work on weekends. Under the original order, Father was also entitled to 14 total days of summer visitation; however, he could not exercise it for "more than four (4) consecutive days[.]"

[¶4] The parties experienced difficulties implementing the visitation and parenting provisions, and Father filed a petition to modify the order in August 2019. He claimed the original order had proved unworkable due to ambiguity in its terms governing the parties’ exchanges of HB and Mother's attitude toward him. At the trial on his petition to modify, Father testified that, because his work schedule had become more flexible, he occasionally requested weekend overnight visits with HB rather than the default Monday and Tuesday nights provided in the order, but the "majority of the time it's always a fight." At the time of trial, HB was nearly three and a half years old and Mother had never permitted Father an entire weekend with her except during his summer visitation. Mother refused Father weekend visits even when she was working and unable to personally supervise HB. As a result of Mother's inflexibility with the visitation schedule, HB missed events with Father's family, including birthday and retirement parties, and the opportunity to develop relationships with her cousins on Father's side. During overnight visitation, Mother insisted on FaceTime calls with HB, even when Father and HB were involved in other activities. On one occasion, Mother's insistence on daily FaceTime contact resulted in her calling police for a "welfare check," even though Father had informed her by text that HB was busy with her grandparents at a large social event. Police interrupted the event and interrogated HB.

[¶5] The original order also required the parties to "consult with each other with respect to ... medical procedures whenever possible and ... advise each other at all times of any issues affecting the welfare of the minor child." Father testified Mother refused to identify HB's dentist and excluded Father from decisions about inoculations, medical check-ups, and treatment of illnesses. One disagreement between the parties over HB's medical treatment escalated to Mother calling Father an "idiot" and a "sperm donor" in the presence of HB. Mother also informed Father he "would never be as good of a father as [her new husband]" in front of HB. At other visitation exchanges, Mother told HB Father was "a mean daddy," HB was "scared" of him, she was "sorry" HB had to go with Father for visitation, and she was "so sorry you [HB] have to be here." Unsurprisingly, HB demonstrated anxiety around visitation exchanges.

[¶6] After the trial on Father's petition, the district court found a material change of circumstances had occurred since the original order and it was in HB's best interests 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). The court adopted a stepped custody schedule to help HB adjust to "spending extended periods of time away from Mother (who has been HB's primary caregiver since birth) ..., [her] half-sibling (who resides in Mother's home full-time) and [her] step-siblings (who reside in Mother's home part-time)." Until HB entered kindergarten, the parties would alternate "on a two-week structured (4/3; 3/4) schedule" which granted Mother custody of HB from Sunday at 6 p.m. to Thursday at 6 p.m. one week and from Sunday at 6 p.m. to Wednesday at 6 p.m. the next week. After HB entered kindergarten, the parties would have "alternating week-on-week-off [custody] with exchanges to occur each Friday." Mother filed a timely notice of appeal.

STANDARD OF REVIEW

[¶7] Custody and visitation decisions are committed to the sound discretion of the district court, and we do not overturn those decisions unless the court abused its discretion or violated a legal principle. Meehan-Greer v. Greer, 2018 WY 39, ¶ 14, 415 P.3d 274, 278-79 (Wyo. 2018) (citing Stevens v. Stevens, 2014 WY 23, ¶ 8, 318 P.3d 802, 805-06 (Wyo. 2014) ) (other citations and quotation marks omitted). See also, Sears v. Sears, 2021 WY 20, ¶ 13, 479 P.3d 767, 772 (Wyo. 2021). A court abuses its discretion if it acts "in a manner which exceeds the bounds of reason under the circumstances." Meehan-Greer, ¶ 14, 415 P.3d at 278-79 (other citations omitted). See also, Johnson v. Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 2018) ("A district court does not abuse its discretion if it could reasonably conclude as it did."). When our review includes evaluation of the sufficiency of the evidence to support the district court's decision, we give the prevailing party's evidence every favorable inference and omit from consideration any evidence presented by the unsuccessful party. Meehan-Greer, ¶ 14, 415 P.3d at 279 (citations omitted). See also, Taulo-Millar v. Hognason, 2022 WY 8, ¶ 15, 501 P.3d 1274, 1279 (Wyo. 2022) (citing Meehan-Greer ). However, "[f]indings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained." Meehan-Greer, 415 P.3d at 279 (citations omitted). A court may also abuse its discretion by ignoring a material factor which deserves significant weight. Walsh v. Smith, 2020 WY 25, ¶ 10, 458 P.3d 58, 63 (Wyo. 2020) (citations omitted). We review questions of law de novo. Kimzey v. Kimzey, 2020 WY 52, ¶ 64, 461 P.3d 1229, 1246 (Wyo. 2020) ; Gjertsen v. Haar, 2015 WY 56, ¶ 11, 347 P.3d 1117, 1122 (Wyo. 2015).

DISCUSSION

[¶8] Under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2021), a court can "modify an order concerning the care, custody and visitation of the child[ ] 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 child[ ] pursuant to [ Wyo. Stat. Ann. §] 20-2-201(a)." Consequently, courts use a two-step analysis when considering a petition for a change in custody or visitation. Jacobson v. Kidd, 2018 WY 108, ¶ 16, 426 P.3d 813, 820 (Wyo. 2018). See also, Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 8, 297 P.3d 768, 772 (Wyo. 2013) (citing In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006) ). "The first step requires proof of a material change in circumstances since the most recent final custody order." Jacobson, ¶ 16, 426 P.3d at 820 (citing § 20-2-204(c) ). " ‘Because of the res judicata effect afforded custody orders, such a finding is a threshold requirement. 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[s] society's interest in applying the doctrine of res judicata to a custody order.’ " Id. (quoting Bishop v. Bishop, 2017 WY 130, ¶ 11, 404 P.3d 1170, 1173 (Wyo. 2017) ) (other citations and quotation marks omitted). After finding a material change of circumstances, the court moves to the second step of the analysis which requires it to determine, based on the totality of the evidence, whether modification of the custody or visitation order would be in the child's best interests. Gutierrez v. Bradley, 2021 WY 139, ¶ 23, 500 P.3d 984, 989-90 (Wyo. 2021) ; Joh...

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