Greer v. Greer

• Decision Date: 30 March 2017
• Docket Number: S-16-0181
• Citation: 391 P.3d 1127
• Parties: Landon Gregory GREER, Appellant (Defendant), v. Alba Rosy GREER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

391 P.3d 1127

Landon Gregory GREER, Appellant (Defendant),

v.Alba Rosy GREER, Appellee (Plaintiff).

S-16-0181

Supreme Court of Wyoming.

March 30, 2017

Representing Appellant: Christopher J. King of Greear Clark King, P.C., Worland, Wyoming

Representing Appellee: Alex H. Sitz, III of Meinecke & Sitz, LLC, Cody, Wyoming

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

DAVIS, Justice.

[¶1] Landon Gregory Greer (Father) and Alba Rosy Greer (Mother) were divorced in October of 2014, while both lived in Cody, Wyoming. Mother received custody of the children, and Father was awarded liberal visitation tailored to his seasonal work schedule. When Mother was unable to find suitable employment in Cody, she found a job in Arizona, and moved there with the children after giving Father notice of the move. Mother filed for a change in Father's visitation, and Father cross-filed for a change in custody and to have Mother held in contempt. The district court declined to change custody or to hold Mother in contempt. Father appealed, contending that both decisions were an abuse of discretion. We affirm.

ISSUES

[¶2] We restate the issues presented as follows:

1. Did the district court abuse its discretion when it did not change custody from Mother to Father after Mother relocated from Cody, Wyoming to Chandler, Arizona?

2. Did the district court abuse its discretion in failing to hold Mother in contempt after Father was unable to exercise visitation ordered in the decree due to her move to Arizona?

FACTS

[¶3] Mother was born in the Dominican Republic, and she and Father met when he was on a church mission there. After his mission was complete and he had returned to the United States, Father went back to the Dominican Republic and asked Mother to marry him. She agreed and immigrated to Cody, Wyoming, where Father resided. They were married a few months later.

[¶4] Mother was able to learn English, obtain citizenship, and complete an online bachelor's degree in criminal justice from the University of Wyoming. During the marriage, Father worked in the family paving business, and Mother was a stay-at-home mom. Father also served on the Cody City Council. The couple had two children, DBG (male, born 2006) and MRG (female, born 2008).

[¶5] The relationship began to unravel, and Mother filed for divorce early in 2014. Custody and financial issues were hotly contested in a two-day divorce trial held in September 2014. The district court entered a comprehensive divorce decree memorializing the above facts on October 21, 2014. The court declined to award joint physical custody as requested by Father, and instead awarded Mother primary physical custody.

[¶6] However, the court awarded Father liberal visitation, including six consecutive weeks during January through March when he was not so busy in the paving business. Mother was awarded the marital home.

[¶7] Mother was unable to obtain suitable employment in Cody after the divorce. She later testified that she applied for approximately thirty jobs, including at a fast-food restaurant and Walmart. She was able to work part-time cleaning houses and teaching Zumba classes. Her employment prospects were probably not enhanced by criminal charges involving an altercation with Father involving a firearm. She was charged with domestic battery and reckless endangerment. She was ultimately allowed to plead guilty to only one of the charges and received a deferred sentence under Wyo. Stat. Ann. § 7-13-301.¹ She later testified that she was placed on probation for a year, which had almost elapsed without a violation at the time of the custody hearing involved in this appeal. The guilty plea was accepted but not entered by the court, and if Mother successfully completes her probationary period, she will not have a criminal record on this charge, as it will be dismissed.

[¶8] Mother was not able to keep up with her financial commitments, and so she made an arrangement with a friend to transfer her an interest in the marital home she had received in the divorce in exchange for a line of credit of up to $100,000. By February of 2016, she had borrowed around $70,000 against the home.

[¶9] After taking a trip to Phoenix, Mother eventually decided that she would look into employment in that area. Her preliminary inquiries generated interest from prospective employers—her ability to speak both Spanish and English made her more employable in an area with a larger Hispanic population. She was eventually offered a job as a receptionist at the Maricopa County Public Defender's office in the Phoenix area. It paid around $10.00 per hour and included benefits.

[¶10] Mother notified Father of her intention to move with the children on June 3, 2015, and filed a notice of address change as required by the parties' divorce decree on June 12. She also filed a motion for change of Father's visitation to adjust to the planned move on June 19. Father responded with a petition to modify custody, support, and visitation, asking the court to award him primary custody and to otherwise modify the decree to adjust to this change. He also asked the court to hold Mother in contempt because (we infer) he was not able to exercise his regular visitation due to the move.²

[¶11] Meanwhile, Mother encountered complications with her plan to go to work for the Maricopa County Public Defender's office. Arizona requires a person who works for governmental entities or in child or elder care to have an IVP³ card. We gather from the record that when one applies for such a card, she is fingerprinted and her criminal record is checked. Mother was notified that she did not qualify for a card because of the Cody charges or deferral.

[¶12] However, an exception can be made for good cause. Mother was able to obtain support from members of the Cody community, including the judge who sat on her criminal case, and she eventually received the required card under the good-cause exception. Father points out that she moved to Arizona without a job, because she could not be employed at the public defender's office without the card. She was unemployed from June until September, waiting for the card.

[¶13] In the meantime, Mother found a different job as a substitute teacher at a charter school, working for a private company that supplies substitutes to schools. That job paid $22.00 per hour, with no benefits, on a contract basis. Mother worked 25 to 30 hours per week, which allowed her to get her children ready for school and meet them at the end of the school day. At the time of the custody hearing, she had been offered a permanent position with the charter school at which she had been a substitute. This position will provide benefits. She was not sure of the salary or hourly rate of her new job at the time of the hearing.

[¶14] The children attend a school which has a number of two-week breaks throughout the year, rather than a traditional long summer break. Father is unable to exercise the six continuous weeks of visitation during the slow season for paving that he received under the decree because of the school schedule and distance between the parties.

[¶15] In the meantime, Father's life also changed. He remarried to a woman who has four children by a previous marriage. The couple was expecting another child in June of 2016 when the hearing in this matter was held. The four children are similar in age to Mother and Father's two children, and they get along well and enjoy spending time with each other.

[¶16] The parties transport the children for visitation via an economy airline that flies from Mesa, Arizona to Billings, Montana, and then by automobile. They have had the kinds of disputes about timing, etc., that are common in these emotionally-charged situations when there is not yet a court order specifically delineating the parties' rights and responsibilities.

[¶17] The district court held a hearing on the pending motions on February 19, 2016. It issued a comprehensive order on April 11, 2016. The parties agreed that there had been a material change of circumstances that allowed the court to revisit custody and visitation under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2015). The court therefore analyzed the factors contained in Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2015) :

(i) The quality of the relationship each child has with each parent. The court found that this factor did not weigh in either parent's favor, although it noted that Father could perhaps have done more to maintain the relationship after Mother moved to Arizona.

(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed. The court found that both parents were satisfactory in this area, and that the factor did not weigh in favor of either.

(iii) The relative competency and fitness of each parent. The court found both parents competent and fit. However, it noted that Father would have seven children to care for if custody were changed, and that Mother would have more time and attention to devote to the couple's two children than Father as a result. It therefore weighed the factor slightly in Mother's favor.

(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times. The court found that the parties were willing to accept the responsibilities of parenting, but that Mother has been the primary caregiver for the children, and that removing them from her care would be devastating to them. It noted that the parties had had some disagreements regarding the children after Mother moved. It concluded that the first part of the factor weighed in Mother's favor, and the second was neutral.

(v) How the parents and each child can best maintain and strengthen a relationship with each other. The court found that Mother had done as much as she could to

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