Hehn v. Johnson, S-21-0236

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBOOMGAARDEN, JUSTICE.
Citation2022 WY 71
PartiesJESSICA J. HEHN, Appellant (Petitioner), v. DAVID V. JOHNSON, II, Appellee (Respondent).
Docket NumberS-21-0236
Decision Date10 June 2022

2022 WY 71

JESSICA J. HEHN, Appellant (Petitioner),
v.

DAVID V. JOHNSON, II, Appellee (Respondent).

No. S-21-0236

Supreme Court of Wyoming

June 10, 2022


Appeal from the District Court of Sheridan County The Honorable William J. Edelman, Judge.

Representing Appellant: Stacy Michelle Kirven, Kirven Law, LLC, Sheridan, Wyoming.

Representing Appellee: No appearance.

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

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BOOMGAARDEN, JUSTICE.

[¶1] Jessica Hehn (Mother) appeals the district court's default order establishing child custody, visitation, and support. David Johnson, II (Father) did not file a brief on appeal. We reverse and remand for further proceedings on visitation and child support.

ISSUE

[¶2] The dispositive issue is whether the district court abused its discretion in establishing visitation and child support.

FACTS

[¶3] The parties never married but are the biological parents of two minor children, born in 2014 and 2018.

[¶4] In August 2019, Mother petitioned to establish custody, visitation, and child support. She requested sole legal and physical custody of the children, as well as child support and medical support. Father was properly served but failed to respond. On Mother's request, the Clerk of District Court entered default against him.

[¶5] In October, the court held a default hearing where Mother appeared in person with counsel. Father, who was in custody on a pending criminal matter, also appeared in person but represented himself. After summarizing the procedural posture of the case, the court asked Mother what orders she sought.

[¶6] Mother requested primary custody, with "a slow, graduated" 15-month visitation schedule for Father.[1] She also requested the court require Father to meet certain requirements during the graduated visitation period because his life had been unstable for

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several years.[2] More specifically, she asserted he had been in and out of jail, had been using drugs, and had unstable housing and employment. As to child support, she asserted Father had been a roofer for approximately 10 years and informed the court that she had researched the median wage of roofers in Wyoming. The court interjected that Father would pay no child support while he was incarcerated and Mother clarified that she would try to impute such income to Father when he was released.

[¶7] At the end of the hearing, the court said Mother's proposed order "sound[ed] relatively reasonable," but "there [was] no way to kick it into gear" until they knew what was going to happen in Father's criminal case. The court thus intended to enter a temporary order.

[¶8] Pursuant to the temporary order, which the court entered in mid-October 2019, Mother had sole physical custody of the children, the parties shared legal custody, and Father paid no child support. In addition, the court ordered Father to inform Mother when he knew what was going to happen in his criminal case so she could request another hearing and the court could reevaluate custody, visitation, and support.

[¶9] Shortly after the court issued the temporary order, Mother informed the court that Father had been sentenced to serve two to four years in prison. She requested the court hold an expedited hearing and enter a permanent order before he was transported to Rawlins, Wyoming, to begin serving his sentence. The court does not appear to have ruled on her request.

[¶10] Approximately a year and a half later, in May 2021, Mother informed the court that Father had been released from prison in April. She requested a default hearing so the court could enter a permanent order.

[¶11] At the default hearing that August, Mother appeared in person with counsel. Father also appeared in person but represented himself. After summarizing the procedural posture of the case, the court turned the floor over to Mother to address her requests. As before, she requested primary custody, with a graduated, 15-month visitation schedule for Father because the children did not know him. As to child support, Mother asserted Father was a roofer by trade and currently worked for a roofing company. She then explained that, in her default order, she calculated Father's net monthly income to be $1, 404 based on the "mean wage for roofers." She thus determined that his child support obligation was $363

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per month and his retroactive child support obligation was $1, 452. Mother expressly acknowledged, however, that Father could testify about his actual income.

[¶12] On the court's inquiry, Father confirmed he had reviewed Mother's proposed visitation order "a little bit" and thought 15 months of supervised visitation was excessive because he had been making an effort to see his children. Mother attempted to clarify that her proposed visitation order spanned 15 months total, with only three months of supervised visitation, followed by three months of monitored visitation. The court suggested they take a brief recess so Father could review Mother's proposed visitation schedule and ask her counsel any questions he had about it. The court added that, if Father agreed with the schedule, the court would sign it; if not, they would decide what to do next. After the recess, Father said he did not agree to six months of supervised or monitored visitation, as he had a stable home and frequently talked to his children.

[¶13] After Father explained his position, the court said it did not "really need evidence" because it understood Mother's request and the basis for it. The court proposed taking Mother's visitation schedule under advisement for modification because it agreed with Father that the transition to standard visitation should occur "a little faster." The court thus heard no evidence.

[¶14] In its default order, the court found it in the children's best interest for Mother and Father to have joint legal custody, Mother to have primary physical custody, and Father to have "reasonable, graduated visitation." Visitation would be as the parties decided was in the children's best interest. But if they could not agree then they must follow the court's schedule.

[¶15] Under the court's schedule, visitation would increase from limited supervised visitation to standard visitation in three months if Father met the requirements Mother requested, see supra n.2. For the first month, he would have three hours of supervised visitation every week. For the second month, he would have eight hours of visitation every week. From then on, he would have standard visitation, including every other weekend during the school year, rotating holidays, and most of summer break.

[¶16] As to child support, the court found Mother's net monthly income was $1, 151, Father's net monthly income was "$1, 404[] (imputed)," and their joint presumptive child support obligation was $839. Mother's share for primary custody was $377, Father's share for primary custody was $461, and his share applying the self-support reserve was $363. The court therefore ordered Father to pay $363 a month in child support, as well as $1, 452 in retroactive support for April to July 2021.

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DISCUSSION

[¶17] Mother challenges the court's visitation and child support determinations. We address her arguments in turn, reversing and remanding for further proceedings on both.[3]

A. Child Custody - Visitation

[¶18] We review child custody determinations for an abuse of discretion. Sears v. Sears, 2021 WY 20, ¶ 13, 479 P.3d 767, 772 (Wyo. 2021) (citing Johnson v. Johnson, 2020 WY 18, ¶ 10, 458 P.3d 27, 32 (Wyo. 2020)). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id. (quoting Johnson v. Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 2018)). "A district court does not abuse its discretion if it could reasonably conclude as it did." Id. (quoting Johnson, ¶ 8, 418 P.3d at 822).

i. Best Interests - Findings

[¶19] Mother complains that, in its default order, the court did not mention the best interest factors under Wyo. Stat. Ann. § 20-2-201(a), make any findings of fact about the children's best interest, or explain why it altered her proposed default order so significantly. Though Mother accurately characterizes what the court did not include in its default order, neither party requested specific findings pursuant to W.R.C.P. 52(a).[4]

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[¶20] "[A] party who fails to request findings of fact prior to trial cannot complain later of the absence of formal findings, including the absence of findings addressing the [best interest] factors enumerated in § 20-2-201(a)." JT v. KD, 2008 WY 104, ¶ 15, 192 P.3d 969, 972 (Wyo. 2008) (citations omitted). "While we encourage district courts to spell out the reasons for their conclusions, they are not required to do so unless a Rule 52 request is made." Id. (citation omitted); see also Castellow v. Pettengill, 2021 WY 88, ¶ 10, 492 P.3d 894, 898 (Wyo. 2021); Kimzey v. Kimzey, 2020 WY 52, ¶ 38 n.2, 461 P.3d 1229, 1241 n.2 (Wyo. 2020). Because she did not request specific findings, Mother cannot be heard to complain on appeal that the district court did not adequately address the statutory best interest factors or more fully explain its reasoning. See JT, ¶ 15, 192 P.3d at 972.

ii. Best Interests - Evidentiary Basis

[¶21] Mother next argues the court erred because it had no evidentiary basis to determine what visitation schedule was in the children's best interest. She asserts that, when it became apparent that Father disagreed with her proposed default order, the court should have set the matter for an evidentiary trial. We conclude the court erred in ruling on visitation without any evidentiary basis to determine the children's best interest.

[¶22] In Noonan, we explained that...

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