Gjertsen v. Haar

• Decision Date: 14 April 2015
• Docket Number: No. S–14–0106.,S–14–0106.
• Citation: 347 P.3d 1117,2015 WY 56
• Parties: Heidi GJERTSEN, Appellant (Defendant), v. Herman Ter HAAR, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

347 P.3d 1117

2015 WY 56

Heidi GJERTSEN, Appellant (Defendant)

v.Herman Ter HAAR, Appellee (Plaintiff).

No. S–14–0106.

Supreme Court of Wyoming.

April 14, 2015.

Representing Appellant: Amanda K. Roberts of Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

Representing Appellee: Rene Botten of Botten Law Office, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

KITE, Justice.

[¶ 1] Pursuant to a California court order, Herman Ter Haar (Father) has sole legal and physical custody of the parties' child (the child), subject to limited visitation by Heidi Gjertsen (Mother). Mother appeals from the district court's order denying her petition for modification of the California order pertaining to custody, care and visitation with the child. We conclude the district court erred by failing to give full faith and credit to the terms of the California order which specifically allowed a change in the terms of visitation when it would be in child's best interests, but it correctly concluded there was no material change in circumstances to justify a change in custody. Consequently, we reverse and remand in part and affirm in part.

ISSUES

[¶ 2] Mother presents the following issues on appeal, which we rephrase:

1. Did the district court err by failing to recognize that the foreign custody order allowed the visitation terms to be altered based on the best interests of the child without a showing of a material change in circumstances?

2. Did the district court err by finding no material change in circumstances to justify a change in custody?

Father presents a single issue:

1. Did the district court abuse its discretion when it denied Mother's petition to modify child custody, support, visitation and bond requirement by finding that she had failed to demonstrate a material and substantial change of circumstances as required by Wyoming law?

FACTS

[¶ 3] This case presents a unique set of facts and course of proceedings. Neither Father nor Mother is a United States citizen although they both have permanent residence (green card) status. One child was born as issue of their marriage in 2006. The parties were divorced by the district court in 2009; however, the issues of child custody, visitation and support were not addressed by the Wyoming court because California was the child's home state at that time. Prior to the California court's determination of child custody, etc., Mother removed the child from the United States to her native country, Norway, without Father's consent and in violation of a court order. Father proceeded under the Hague Convention on the Civil Aspects of International Child Abduction¹ to have the child returned to the United States and, after several months, he was successful.

[¶ 4] With the child back in the United States, the California court held a number of hearings on the outstanding issues, and the parties were eventually able to reach an agreement regarding custody, visitation and child support. The stipulated judgment stated that Father and the child had relocated to Sheridan, Wyoming and recognized that Mother had plans to move there, as well. Father also married Carmela Ter Haar (Stepmother) and adopted her son (Stepbrother). The California order specifically recognized that, given the child would be living in Wyoming with Father, Wyoming would be her home state commencing September 1, 2010.

[¶ 5] The California order stated in relevant part:

5. Whereas, [Father] is relocating to Sheridan, Wyoming, and on February 19, 2010, the Court granted his request that the minor child be permitted to move with him;

6. Whereas, [Father] relocated to Wyoming on or about March 29, 2010, with [the child];

....

8. Whereas, [Mother] intends to relocate to Sheridan, Wyoming;

....

11. Child Custody. [Father] is awarded sole legal and physical custody of the minor child.... The parties stipulate that this order is in the best interests of [the child]. The parties stipulate that this is a final and permanent determination of custody, meeting the requirements of Montenegro v. Diaz (2001)[,] 26 Cal.4th 249 [109 Cal.Rptr.2d 575, 27 P.3d 289].... See also paragraph 27 herein.

12. Visitation Schedule. The minor child shall reside with [Father] at all times not set out below:

....

b. It is anticipated that [Mother] will move to Wyoming before September 1, 2010. Therefore commencing on September 1, 2010 or the first day of the month following [Mother's] relocation to Wyoming, whichever is sooner, the parties stipulate and the Court orders the following visitation schedule:

c. [Mother] shall have visitation with [the child] on alternating weekends for the time periods setout herein below; in the event the parties are unable to determine an alternating weekend schedule, the schedule shall be determined by providing [Mother] all even-numbered weekends during a calendar year of 52 weeks, for the following time periods:

i. Saturday: from 10 a.m. to 4:00 p.m.

ii. Sunday: from 10 a.m. to 4:00 p.m.

....

d. Commencing on September 1, 2010, [Mother] shall have visitation with [the child] on every Wednesday evening from 5:30 p.m. to 7:30 p.m.

e. In the event that a visitation is missed due to travel, including consecutive weeks of vacation travel, or other obligations, it will be “made up” at the earliest mutually agreeable available date.

f. [Holiday visitation set out].

g. Supervised Visitation. Until [Mother] provides $50,000 in cash as security in the event of a re-abduction of [the child], ... [Mother's] custodial time shall be supervised by a mutually agreed upon nonprofessional provider....

h. Travel. [Mother] must have written permission from [Father] or a court order to take [the child] out of the state of Wyoming. [Mother] must have a court order to take [the child] out of the United States.

[Additional provisions pertaining to transportation, Mother's citizenship, notifications of authorities of order, restrictions on Mother's travel with the child and the security bond].

17. Country of Habitual Residence. The country of habitual residence of [the child] is the United States. [The child's] home state is California.

18. Change of Home State. Following their move to Wyoming, the parties stipulate and the court so finds that [the child's] home state shall be Wyoming, as California will be an inconvenient forum as neither [the child] [n]or the parties will be residents of California. Commencing September 1, 2010, Wyoming shall be the home state for [the child], pursuant to Wyoming Statute 20–5–301 and 20–5–307.

19. Change of Residence. [Father] shall not relocate with [the child] more than thirty (30) miles from the Sheridan, Wyoming court house without the written permission of [Mother] or an order of court.

[Provisions pertaining to child support, health care expenses, custody of child's passports, restrictions on discussion of the other parent and/or any litigation pertaining to the child in the presence of the child, and attorney fees].

27. Final Judgment. The orders herein are final and permanent; a material change of circumstances is required to modify these orders. However, [Mother's] visitation schedule may be adjusted on request by either party, without the necessity of proving a change of circumstances, as is in the best interests of [the child] as the Court, in its discretion, may believe proper.

Father registered the California judgment in the district court in Sheridan.

[¶ 6] While Mother was still in California and the child was in Wyoming, visitation was conducted through Skype. Mother felt that her ability to communicate with the child was hampered because Father or Stepmother was always present during the Skype sessions. Mother moved to Sheridan in January 2011 and began supervised visitation with CASA² monitoring. At some point, CASA advised it would not able to monitor the lengthy weekend visits. Mother posted bond in June 2012, and the parties began transitioning to unsupervised visitation.

[¶ 7] The visitation exchanges were contentious, often involving disagreements between Mother, Father and Stepmother over documenting when the child was dropped off and picked up. In addition, the parties disagreed over Father's and Stepmother's discussion with the child of Mother's abduction or “kidnapping” of her and their disciplining the child by forcing her to take cold showers or eat hot sauce. Both parties called law enforcement on various occasions to address their disputes. The officers recommended the parties use CASA or at least a neutral site for exchanges. The child became anxious and sometimes refused to go to visits. At other times, she had tantrums while in Mother's care. The parties began video recording their interactions with each other and the child.

[¶ 8] On February 22, 2013, Mother filed a petition to modify the California order. She asserted there had been material changes in circumstances since the California order was entered and sought modification of the custody, child support, visitation and bond provisions. Father contested Mother's petition and counterclaimed, requesting that his obligation to pay child support be removed and an order entered requiring Mother to pay him child support.³

[¶ 9] In the spring of 2013, Father enrolled the child in counseling with licensed counselor, Deiadra (Dee) Smidt. Ms. Smidt gave all of the parties a list of rules for relating to each other and the child. These rules were designed to help the child's emotional state and included: no audio or video recording of the child; Father was not to threaten Mother with trespass when she came to his home; no unnecessary calls to law enforcement; no use of the techniques of cold showers or hot sauce to discipline the child (which the counselor characterized as “abuse”); Father and Mother, rather than Stepmother, would discipline the child unless they were not available; no quizzing the child; no “bad mouthing” each other in front of the child; and Father and Stepmother were to cease saying that Mother was mentally ill. The counseling was...