GGV v. JLR

• Decision Date: 07 February 2002
• Citation: 39 P.3d 1066,2002 WY 19
• Parties: GGV, Appellant (Respondent), v. JLR, individually and on behalf of RR, a minor child, Appellee (Petitioner).
• Court: Wyoming Supreme Court

39 P.3d 1066

2002 WY 19

GGV, Appellant (Respondent), v. JLR, individually and on behalf of RR, a minor child, Appellee (Petitioner).

No. C-01-1.

Supreme Court of Wyoming.

February 7, 2002.

JoAnn Fulton of Fulton Law Office, P.C., Laramie, WY, Representing Appellant.

Mary Elizabeth Galvan of Mary Elizabeth Galvan, P.C., Laramie, WY, Representing Appellee.

Mary Chinnock Petroski of Mary Chinnock Petroski, P.C., Laramie, WY, Guardian Ad Litem.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

HILL, Justice.

[¶ 1] Appellant, GGV (hereafter Mother), solicits review of the district court's order, issued in the context of a paternity action, which concluded that a material change of circumstances warranted modification of a prior custody order. The result of that order was that RR (hereafter Child) continued to be in the primary custody of Appellee, JLR (hereafter Father). Mother and Father lived together for several years but were never married to one another. Mother contends: that the district court erroneously admitted evidence which established her responsibility for life-threatening injuries that were inflicted on Child when he was just over three years of age;¹ that the district court failed to follow proper procedures in modifying the parties' child support obligations; that the district court further failed to take into account Mother's ability to pay for a portion of the cost of treatment and therapy for Child, as well as for extensive guardian ad litem and evaluation fees incurred in this custody dispute; and that the fees charged by the guardian ad litem and by evaluators were unreasonable. Father contends that there was no reasonable cause for Mother's appeal and seeks monetary sanctions under W.R.A.P. 10.05.

[¶ 2] We will affirm and impose sanction against Mother for this appeal.

ISSUES

[¶ 3] Mother states these issues:

1. Did the trial court err in allowing Rule 609 evidence to be presented in this modification of paternity action?

2. Did the trial court err in failing to follow proper procedure in modifying the child support retroactively and when it failed to abate Appellee's child support and offset the abatement by amounts owed by Appellant?

3. Did the trial court err in failing to acknowledge Appellant's ability to pay for ongoing and extensive treatment and counseling for R.R.?

4. Did the trial court err in ordering Appellant to pay exorbitant Guardian ad litem fees and professional custody evaluation fees for which she had no ability to pay?

Father contends these are the issues we must decide:

A. Did the district court err in admitting evidence of child abuse of the minor child by the Appellant as evidence of a material change of circumstances for purposes of modification proceedings?

B. Did the district court err in enforcing the child support provisions of an existing juvenile court order?

C. Did the district court err in ordering Appellant to contribute to the expenses of court ordered counseling for the minor child in the absence of evidence supporting a finding that Appellant is unable to contribute to those expenses and the absence of any objection thereto by Appellant?

D. Did the district court err in ordering the Appellant to contribute to the fees of the Guardian Ad Litem and for the fees associated with a custody evaluation, in the absence of any objection thereto by the Appellant or evidence of her inability to pay such fees?

E. Is the Appellee entitled to sanctions against the Appellant and her attorney[?]

[¶ 4] The guardian ad litem (GAL) also filed a brief in which it is contended that, in the absence of a transcript of the proceeding conducted below, there is no basis for a finding that the district court abused its discretion. The GAL also asks that sanctions be imposed in her favor pursuant to W.R.A.P. 10.05.

FACTS

[¶ 5] The facts are a bit difficult to sort out, in part because the hearing transcript was not designated as a part of the record, and in part because there are discrepancies in the various versions of the often troubling and tragic events that have led to this juncture and to what we hope is a conclusion to the custody dispute. The facts we set out below are those we deem necessary to an understanding of the current posture of this case and to the resolution of the issues brought to this Court by the parties. In keeping with the applicable standard of review, portions of this factual summary are posed in a light most favorable to the determinations made by the district court and giving Father the benefit of all favorable inferences and leaving out of our consideration the evidence presented by Mother. In many circumstances, both in the legal arena and in the counseling arena, Mother and her attorneys failed to give adequate recognition to the reality that the various trial courts acted as fact-finders, and Mother's subjective version, or viewpoint, of many of the pivotal factual sequences were no longer of pertinence to the resolution of the issues at hand.

[¶ 6] In 1985, Mother and Father met in Laramie and began a lengthy, but ultimately unsuccessful, relationship. During the course of that relationship, they lived in Laramie, Denver, and Jackson. At times, Father worked for a company owned by Mother's father in both Denver and Jackson. Child was born in Jackson on December 26, 1989. The couple separated permanently in 1990, and, from that time until Father assumed custody of Child, he paid support to Mother. At first those support payments were voluntary, but eventually, on January 9, 1992, the district court issued an order establishing Child's paternity. That order also provided for visitation by Father with Child, for the payment of child support by Father in the amount of $400.00 a month, for Father to pay various expenses associated with Child's birth and the paternity proceedings, as well as for Father and Mother to "seek and maintain counseling." The record demonstrates that Father has always met his support obligations but did not meaningfully pursue the mandated counseling. Mother did pursue counseling with more earnestness but ultimately with results that were largely contrary to the intended purpose of counseling.

[¶ 7] Shortly after the termination of her relationship with Father, Mother began a second relationship with another man. That relationship produced a second child, although she and the father of that child did not marry either. In March of 1993, in part because of Child's misbehavior and in part because of postpartum depression suffered after the birth of her second child, Mother committed abusive acts on Child that resulted in life-threatening injuries, including a subdural hematoma (shaken baby syndrome) and severe genital bruising. Child was hospitalized in Salt Lake City for about one week.² At the conclusion of the hospital stay, Child was placed in foster care for about three months. When Child was taken from Mother's care and placed in foster care, Mother fled to Las Vegas, Nevada, where she was eventually arrested and returned to Wyoming for the purpose of a criminal prosecution arising out of the abuse and neglect suffered by Child. Beginning in June of 1993, and continuing to this day, Child has been in the primary custody of Father. At the time Father assumed custody of Child, no determination was made with respect to child support (i.e., Mother was not ordered to pay child support, and Father was not specifically relieved of his court-mandated support obligation of $400.00 a month to Mother). Mother has enjoyed visitation throughout most of this later time period, beginning with brief supervised visits and culminating in the liberal visitation that she now enjoys.

[¶ 8] Mother was prosecuted for the abuse and neglect set out above. As a sentence, she was placed on probation for three years under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2001) (emphasis added).³ By order entered on May 16, 1996, Mother was discharged from probation, and under the terms of the governing statute, her criminal record would not reflect this incident as a conviction. On December 13, 1993, the juvenile court found Child to be a neglected child and temporarily placed him in Father's custody. By order entered on March 24, 1995, that custody was formalized, and the juvenile court directed the parties to file financial affidavits so that the district court could determine how much support Mother should pay to Father. By order entered on June 30, 1995, Mother was directed to pay Father child support in the amount of $50.00 a month. By order entered on June 12, 1996, the Department of Family Services was relieved of its supervisory responsibilities with respect to Mother's visitation with Child. On July 8, 1997, counsel for the parties entered into a "Memorandum of Understanding" which purported to settle all issues between the parties with respect to visitation and child support (the parties themselves did not sign the Understanding, and the district court held that the parties were not contractually bound by it). It was Mother's contention that she never did agree to that "Memorandum of Understanding," and she did not abide by it.

[¶ 9] From 1993, through the present time, Father lived in Laramie and Mother lived in Jackson, Lander, or Denver. At times Mother did not have a permanent address or phone number. In August of 1999, Mother relocated to Laramie to attend school. Because of Mother's refusal to abide by the "Memorandum of Understanding," especially with respect to visitation (but also with respect to paying child support and generally refusing to conform her conduct to that expected of parents in custody matters such as this one), an "Amended Petition to Enforce and/or Modify Custody and Visitation Provisions of Judgment and Order of Paternity" was filed in the district court in Albany County.⁴ Mother's initial efforts were addressed to frustrating the proceedings in Albany County. She filed a motion to dismiss, which...