Hays v. Martin

• Decision Date: 01 October 2021
• Docket Number: S-21-0040
• Citation: 2021 WY 107
• Parties: KAREN DM HAYS, Appellant (Plaintiff), v. TERRANCE R. MARTIN, Appellee (Defendant).
• Court: Wyoming Supreme Court

2021 WY 107

KAREN DM HAYS, Appellant (Plaintiff), v. TERRANCE R. MARTIN, Appellee (Defendant).

No. S-21-0040

Supreme Court of Wyoming

October 1, 2021

This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

Appeal from the District Court of Fremont County The Honorable Bill Simpson, Judge

Representing Appellant: Patricia L. Bennett of Bennett Law Group, PC, Laramie, Wyoming.

Representing Appellee: Katherine A. Strike of Stanbury &amp Strike, PC, Lander, Wyoming.

Guardian ad Litem: Margaret P. Miller, Laramie, Wyoming.

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

BOOMGAARDEN, Justice.

[¶1] Karen DM Hays (Mother) appeals the district court's child custody modification order awarding Terrance R. Martin (Father) primary physical custody of their son HRM. Mother claims the district court abused its discretion when it denied her motion to remove the guardian ad litem (GAL) and when it failed to adequately consider her abuse allegations against Father. Father and the GAL both argue that the district court acted appropriately. We affirm.

ISSUES

[¶2] The issues are:

I. Did the district court abuse its discretion when it denied Mother's request to remove the GAL?

II. Did the district court abuse its discretion by failing to adequately consider Mother's abuse allegations when it modified custody?

FACTS

[¶3] HRM was born to Mother and Father in May 2013. Mother and Father married in December 2013, and Mother filed for divorce in August 2015. Mother got a protection order against Father in May 2016, after alleging he physically and mentally abused her, HRM, and her older son KDH. The district court appointed a GAL to investigate Mother's claims and represent HRM's best interests during the divorce proceedings. The court issued a divorce decree in September 2017 that approved and incorporated the parties' custody agreement. It awarded the parties joint legal custody of HRM, gave Mother primary physical custody, and ordered them to split parenting time evenly-with HRM rotating between their homes on a weekly basis.

[¶4] This dispute began in September 2018, when Mother filed a petition to modify custody and an emergency motion for temporary custody based on new abuse allegations. Mother attached her 2016 protection order, a 2018 protection order, and a seven-page affidavit detailing Father's alleged abuse. Her affidavit made a few general references to child abuse without providing context, then focused mainly on an incident that occurred between Mother and Father around 1:00 a.m. on August 24, 2018. Mother claimed she went to Father's house to confront him about approaching HRM at a public concert earlier that day during her visitation week. She said that when she arrived, Father attacked her, yelled at her, and pushed her into a porch railing. Mother then began denying Father contact with HRM in early September.

[¶5] In response, Father filed a motion to enforce the existing custody and visitation schedule and counterclaimed for custody modification, requesting primary legal and physical custody of HRM. Father attached an affidavit detailing his account of the August 24 incident. He claimed that after Mother burst inside his house at 1:00 a.m., he "placed [his] hands on her shoulders and directed her back outside" then locked his door. He further claimed he never touched Mother in a rude or hostile manner, Mother willfully interfered with his relationship with HRM, and Mother purposely tried to defame him.

[¶6] The GAL also filed a motion to enforce the existing custody and visitation schedule pending the modification proceedings. Citing her earlier investigation, she explained that Mother previously prevented visitation between HRM and Father during the divorce proceedings based on abuse allegations that were found to be baseless. She feared that Mother was engaging in "parental alienation" and expressed her opinion that HRM "loves and needs BOTH of his parents[.]"

[¶7] Mother then moved the court to remove and replace the GAL. She claimed the GAL filed her motion to enforce visitation without investigating the new abuse allegations and argued that doing so was indicative of the GAL's bias against Mother.

[¶8] The district court held a hearing on the motions in December 2018. The court first heard testimony and arguments regarding Mother's motion to remove the GAL. Mother called three friends who testified that, based on their respective interactions with the GAL, they felt the GAL was aggressive, protective of Father, negative toward Mother, and not focused on what was best for HRM. Neither Father nor the GAL called any witnesses. The court decided to reserve its ruling on Mother's motion and allow the GAL to participate in the modification proceedings.

[¶9] The court then took up the issue of temporary custody and visitation. It heard testimony from numerous witnesses, including Mother and Father, about the nature of Mother and Father's relationship and interactions with one another; each party's relationship with HRM and KDH-including specific incidents of alleged abuse; and the events leading up to and following the August 24 incident. At the close of the hearing, the court ordered the parties to resume visitation as outlined in its ruling until the custody modification trial.

[¶10] The custody modification trial took place in January 2020. Mother and Father each testified that they love HRM and that he is a good kid who likes various activities, including fishing and 4-H. Each parent said HRM had his own room in their home; neither consumed alcohol around HRM; and each said they could provide healthy structure, discipline, and meals. Mother also testified that HRM has a great relationship with KDH. Both testified that they believe the other is a good parent. However, Father expressed concern that Mother allowed HRM to bike on busy roads, and that HRM missed a lot of school when in Mother's care.

[¶11] Mother and Father each requested primary custody of HRM. Both testified they communicated with each other mostly by text message because Mother's protection order was still in place.^[1] Father admitted that this made co-parenting difficult. Mother testified that the 50/50 custody arrangement was not in HRM's best interests and that he needed a more structured schedule. Mother's testimony showed her income was somewhat unstable, she had several businesses, including a restaurant and a food truck, but her current monthly income was $0. Father testified he was an attorney with over 20 years of experience, and his current monthly income was about $4, 000. The parties and the GAL filed written closing arguments. In her closing, the GAL recommended a primary placement with Father.

[¶12] The district court issued its decision letter and order in Summer 2020. After thoroughly summarizing the testimony from the 2018 hearing and 2020 trial, it granted the parties joint legal custody of HRM and awarded Father primary physical custody. The court then denied Mother's motion to remove the GAL, finding that the GAL "was doing her job as she always does it" and that she had a "justified reason for proceeding as she did[.]" Mother timely appealed.

DISCUSSION

I. The district court did not abuse its discretion by refusing to remove the GAL.

[¶13] We review a district court's ruling on a motion to remove a GAL for abuse of discretion. "A district court does not abuse its discretion if it could reasonably conclude as it did." Castellow v. Pettengill, 2021 WY 88, ¶ 7, 492 P.3d 894, 897 (Wyo. 2021) (quoting Sears v. Sears, 2021 WY 20, ¶ 13, 479 P.3d 767, 772 (Wyo. 2021)).

[¶14] Mother's argument that the district court abused its discretion when it denied her motion to remove the GAL is two-fold. She first takes issue with the court allowing the GAL to participate in the modification proceedings even though the GAL did not investigate her 2018 abuse allegations. She also claims the GAL was biased against her, and that this bias was clearly evidenced by the GAL's behavior throughout the proceedings. She suggests, without citation to authority, that she was entitled to an unbiased GAL. We will consider Mother's bias argument first because we addressed the same issue in Lemus v. Martinez, 2021 WY 66, ¶¶ 17-30, 486 P.3d 1000, 1007-11 (Wyo. 2021), after Mother filed her appellate brief.

[¶15] Mother generally claims the GAL's bias was "obvious in her pleadings, her statements in court and her argument at trial." Specifically, Mother cites the GAL's response to Mother's motion to have her removed in which the GAL used the term "beloved father," and the GAL's custody modification closing argument where the GAL "affectionately compared [Father] to vanilla ice cream[, ]" and criticized Mother for "requiring HRM to eat the school lunch[.]" Mother also points out that, at the 2018 hearing, the GAL requested the court allow Father's counsel to cross examine one of Mother's witnesses on her behalf because Father's counsel would know what questions to ask. She relies on the testimony of her three witnesses at the 2018 hearing to support her argument and claims the GAL's lack of investigation into her 2018 allegations further indicated the GAL was biased against her. Mother claims her relationship with the GAL had been "difficult and antagonistic" ever since Mother requested an itemized list of the GAL's fees following the divorce proceedings.^[2]

[¶16] Similarly, the father in Lemus claimed the GAL in his case was biased against him and filed a motion to...