Hanson v. Belveal

• Decision Date: 19 July 2012
• Docket Number: S–11–0131.,Nos. S–11–0130,s. S–11–0130
• Citation: 2012 WY 98,280 P.3d 1186
• Parties: Joshua Jorgen HANSON, Appellant (Petitioner/Plaintiff), v. Melanie Smith BELVEAL, f/n/a Melanie Ann Hanson, Appellee (Respondent/Defendant).
• Court: Wyoming Supreme Court

280 P.3d 1186

2012 WY 98

Joshua Jorgen HANSON, Appellant (Petitioner/Plaintiff),

v.Melanie Smith BELVEAL, f/n/a Melanie Ann Hanson, Appellee (Respondent/Defendant).

Nos. S–11–0130, S–11–0131.

Supreme Court of Wyoming.

July 19, 2012.

Appeal from the District Court of Sublette County; Marvin L. Tyler, Judge.

Representing Appellant: Elizabeth Greenwood and Inga L. Parsons, Attorneys at Law, Pinedale, Wyoming.

Representing Appellee: Sky D. Phifer of Phifer Law Office, Lander, Wyoming.

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

GOLDEN, Justice.

[¶ 1] These combined appeals arise out of post-divorce proceedings. In No. S–11–0130, Father appeals the district court's order denying his petition to modify the parties' divorce decree, which granted mother primary physical custody of their minor child, and to grant him primary physical custody of their child. In No. S–11–0131, Father appeals the district court's order that he pay Mother $4,680 for attorney's fees and costs she incurred in defending Father's petition to modify custody. We affirm both orders.

ISSUES

[¶ 2] Father presents five issues for our review, which we have rephrased for the sake of simplicity as follows:

I. Whether the district court erred in finding unconstitutional a clause in the Stipulated Divorce Decree which provided that a move out of state by either party constituted a material change of circumstances sufficient to seek a modification of custody.

II. Whether the district court erred in finding there had not been a material change in circumstances to justify a change in custody.

III. Whether the district court erred in finding that a modification of custody would not be in the best interests of the child.

IV. Whether the district court reversibly erred in admitting hearsay statements of the child's treating physician and excluding certified copies of the criminal convictions of Mother's brother and her current spouse.

V. Whether the district court erred in awarding Mother reasonable attorney fees.

FACTS AND PROCEEDINGS

[¶ 3] The parties were married in September 2006 in Pinedale, Wyoming, and lived in that area at the time of their divorce in March 2009. Mother brought into the marriage a child from a previous relationship, and the parties' marriage produced one son, CJH, who was born in April 2007. The parties divorced in March 2009, and, pursuant to a Stipulated Decree of Divorce entered by the district court, the parties had joint legal custody of CJH, with Mother being the primary residential custodial parent subject to reasonable liberal visitation by Father. The decree included a relocation provision, which stated:

It is agreed that if one or the other parties move out of the state of Wyoming then for purposes of this agreement, the parties agree that such a move constitutes a material change of circumstance sufficient to seek a modification of this agreement.

[¶ 4] In October 2009, Mother, who was remarried and pregnant with her third child, informed Father of her intention to move with CJH to Driggs, Idaho. Father was residing in Daniel, Wyoming, as he had been for several years. On October 14, 2009, Father filed a petition requesting, among other relief, an order for custody modification granting him residential and physical custody of the parties' minor child, CJH. In the petition, Father alleged Mother's intention to move with CJH to Idaho and, referencing the relocation provision contained in their divorce decree, alleged that the move constituted a material change of circumstance warranting modification of custody. Father also alleged the occurrence of additional changes of circumstance and that those changes of circumstance warranted modification of custody.

[¶ 5] Mother timely responded to Father's petition, alleging, among other matters, that the relocation provision contained in their divorce decree was void and unenforceable; denying the occurrence of additional material changes of circumstance; and asserting a counterclaim which sought, among other relief, modification of Father's visitation and attorney's fees and costs.

[¶ 6] Mother and CJH moved to Driggs, Idaho, in November 2009, but moved back to Wyoming a few months later, in January 2010. In between Mother's move to Idaho and return to Wyoming, the district court held a hearing concerning temporary custody of CJH and determined that physical custody of the child should remain with Mother pending resolution of Father's petition. At that hearing, the district court expressed concern about the divorce decree's relocation provision and directed the parties to brief the issue whether that provision affected the court's subject matter jurisdiction to entertain Father's petition.

[¶ 7] In its decision letter issued on August 5, 2010, the district court ruled that it had jurisdiction to consider the merits of Father's petition. In particular, referencing the divorce decree's relocation provision, the court stated that it

is bound to make an independent determination, after a hearing, as to whether [Father] has carried his burden of proving the existence of “a material change in circumstances” since entry of the Decree and whether “the modification ... would be in the best interests of the children [sic] pursuant to W.S. 20–2–201(a).” [Emphasis in original.]

[¶ 8] On January 26 and 27, 2011, the district court conducted the hearing on Father's petition, receiving testimony and other evidence from both parties. As previously noted, although Mother had moved from the Pinedale area to Idaho in November 2009, which relocation was one of the changes of circumstance Father alleged warranted a custody modification, Mother had moved back to Wyoming a few months later in January 2010 and was living in Lander, Wyoming, at the time of the hearing. Also as previously noted, Father had lived in Daniel, Wyoming, for several years before filing his modification petition and was still living there at the time of the hearing. In addition to this circumstance, the parties presented testimony and evidence concerning Father's allegations of changed circumstances including Mother's instability for having moved several times within Wyoming, and having changed employment; Mother's keeping cats and dogs in her home despite CJH's allergies; Mother's husband having a criminal history and a diagnosed mental condition; Mother's having once exposed CJH to her former boyfriend who allegedly abused the child; and Mother's having occasionally left CJH at her parents' home where her brother, a registered sex offender, resided.

[¶ 9] In a lengthy decision letter dated February 9, 2011, and filed February 11, 2011, the district court issued its decision denying Father's petition for modification. On March 2, 2011, the court entered its order.

[¶ 10] Earlier, while the custody modification action was pending, Mother had filed a motion for an allowance of money to defend the action. The court denied that motion, as it explained in its decision letter filed January 18, 2011. Later, Mother renewed her motion for allowance of money to defend the action, supported by her attorney's affidavit. On February 22, 2011, the court filed its decision letter explaining its decision to award Mother the sum of $4,680.00 for costs and attorney's fees. On March 21, 2011, the court entered its order awarding that sum.

STANDARD OF REVIEW

[¶ 11] The appellate process reduces itself to only three types of review: review of the sufficiency of the evidence to meet the required burden of persuasion at the trial level; review of the exercise of discretion; and plenary review of the choice, interpretation and application of the controlling legal precepts.

Ruggero J. Aldisert, Opinion Writing 53 (West Publishing Co. 1990).

[¶ 12] In this appeal, all three types of review may be applied, depending on the specific issue under discussion. With respect to Father's challenge to the district court's ruling that the divorce decree's relocation provision is unconstitutional, such an issue would normally receive plenary or de novo review. Hageman v. Goshen Cty. Sch. Dist. No. 1, 2011 WY 91, ¶ 5, 256 P.3d 487, 491 (Wyo.2011). We have recognized, however, that a fundamental rule of judicial restraint requires us to forgo addressing a constitutionalissue if we can resolve the case on other grounds. Wilson v. Bd. of Cty. Comm'rs of Cty. of Teton, 2007 WY 42, ¶ 14, 153 P.3d 917, 922 (Wyo.2007); see also In re LePage, 2001 WY 26, ¶ 18, 18 P.3d 1177, 1181 (Wyo.2001); Pisano v. Shillinger, 835 P.2d 1136, 1138 (Wyo.1992); Wheeler v. Parker Drilling Co., 803 P.2d 1379, 1383 n. 1 (Wyo.1991); K N Energy, Inc. v. City of Casper, 755 P.2d 207, 210 (Wyo.1988) (citing cases); and Schoeller v. Bd. of County Comm'rs of Park Cty., 568 P.2d 869, 879 (Wyo.1977).

[¶ 13] With respect to the modification issues, we shall apply our usual standards for reviewing district court findings relating to the required material change of circumstances and the best interests of the children. Regarding the material change of circumstances, this Court has said:

“A district court's finding concerning a material change in circumstances is principally a factual determination to which we accord great deference.” [In re TLJ, 2006 WY 28, ¶ 11, 129 P.3d 874, 877 (Wyo.2006) ], citing Yates v. Yates, 702 P.2d 1252, 1256–57 (Wyo.1985). Our task is simply to determine whether, examining the record in the light most favorable to the successful party, the district court could have reasonably concluded as it did. Id.

Morris v. Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo.2007).

[¶ 14] Our standard for reviewing the district court's findings relating to the best interests of the children is likewise a deferential review.

Decisions pertaining to child custody are within the sound discretion of the district court and will not be disturbed on appeal absent procedural error or a clear abuse of discretion. Selvey v. Selvey, 2004 WY 166, ¶ 15, 102 P.3d 210, 214 (Wyo.2004)....