Ianelli v. Camino

• Citation: 444 P.3d 61
• Decision Date: 27 June 2019
• Docket Number: S-18-0165
• Parties: MonteReye IANELLI, Appellant (Respondent), v. Luke CAMINO, Appellee (Petitioner).
• Court: Wyoming Supreme Court

444 P.3d 61

MonteReye IANELLI, Appellant (Respondent),
v.
Luke CAMINO, Appellee (Petitioner).

S-18-0165

Supreme Court of Wyoming.

June 27, 2019

Representing Appellant: Benjamin L. Keller, Kinnaird Law Office, P.C., Sheridan, Wyoming.

Representing Appellee: Tad T. Daly, Daly & Sorenson, LLC, Gillette, Wyoming.

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

BOOMGAARDEN, Justice.

¶1] After learning of Mother’s intent to move from Buffalo, Wyoming, to Plains, Montana (a distance of nearly 600 miles), Father, Luke Camino, petitioned to modify custody and requested primary physical custody of the parties’ four-year-old son, BDC. Mother, MonteReye Ianelli (n/k/a MonteReye Josephson), opposed a change in custody, but counterclaimed to modify Father’s visitation schedule. After a one-day trial, the district court found that Mother’s move constituted a material change in circumstances, and that it was in BDC’s best interests to grant Father primary physical custody. Mother appealed and we reverse and remand.

ISSUES

[¶2] We reframe Mother’s issues:

1. Did the district court abuse its discretion when it determined a material change in circumstances justified reopening its prior custody order?

2. Did the district court abuse its discretion when it determined that transferring custody to Father was in BDC’s best interests?

[¶3] Father raises a threshold jurisdictional issue asserting that Mother failed to timely file her notice of appeal.

FACTS

[¶4] Mother and Father were never married, but had a child together, BDC, who was born in February 2013. Shortly after BDC’s birth, Father filed a petition to establish paternity, custody, visitation, and support. The parties reached an agreement a few months later and the district court entered a stipulated order on August 13, 2013. The district court ordered joint legal custody and named Mother as BDC’s primary physical custodian. The district court also ordered a graduated visitation schedule for Father, which began with supervised visits. Although both parties resided in Buffalo, Wyoming, the order included an alternative visitation schedule in the event either party relocated more than 250 miles from Buffalo.

[¶5] Following entry of the custody order, BDC lived in Buffalo with Mother and his older half-sister, K. Mother owned her home and continued to work as a waitress for a local restaurant, as she had for approximately 16 years. Her mother also lived in Buffalo and provided childcare while Mother worked.

[¶6] Father initially worked as a fencer and lived just outside of Buffalo. He later married. His wife has a daughter from another relationship, R, who is six months older than BDC. In 2014, Father moved his family into their own home on his mother’s ranch near Clearmont, Wyoming—roughly thirty minutes from Buffalo. Father switched employment a year later and worked in water management until his brother-in-law offered him a job with a cattle operation in March 2016.

[¶7] The parties largely adhered to the visitation schedule set forth in the custody order.¹ Father regularly exercised his visitation and the parties worked together to accommodate occasional schedule changes. During Father’s visitation, BDC went to work with Father while Father did ranch

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work. In the summer months, BDC participated in rodeos and in the Johnson County Fair with his cousins. He rode horses, fished, hunted, and spent time with his large extended family during his visits.

¶8] In August 2016, Mother decided to move to Montana in early 2017 to be with her fiancé. She informed Father of her relocation plans and the parties discussed adjusting Father’s visitation schedule. Father did not approve of the move because BDC had lots of friends and family in Buffalo. A few weeks later, Mother filed a notice of her intent to relocate.² Father retained an attorney in November and, on January 26, 2017, he filed a petition to modify custody and a motion for an ex-parte temporary restraining order. The district court did not enter a restraining order and Mother moved to Montana on February 1, 2017, as planned. Mother answered the petition and counterclaimed to modify visitation and child support. The district court set trial for August.

[¶9] After Mother relocated to Montana, she obtained employment as a waitress at a local resort; she worked Thursday through Sunday evenings from 5:00 p.m. to 9:00 p.m. While Mother worked, her husband or their eighteen-year-old niece provided childcare.³ Mother also enrolled BDC in preschool on Mondays and Wednesdays from 12:00 p.m. to 3:00 p.m.

[¶10] The parties attempted to adhere to the alternative visitation schedule, but both parents were concerned about the amount of time BDC spent traveling between the households.⁴ The parties tried to negotiate a new schedule. Father proposed that BDC stay for "four days instead of just like the weekend, or maybe every other week[,]" but Mother declined due to BDC’s preschool schedule. Mother filed a motion to modify visitation in March requesting the court set a new visitation schedule pending trial. The district court held a hearing on the motion in May and issued a temporary order granting Father summer visitation from May 26, 2017, until three days before school commenced, subject to Mother’s visitation on June 8–11, July 1–4, and August 4–7.

[¶11] By the time Father’s summer visitation commenced, Mother was pregnant and developed complications with her pregnancy. Due to her condition and her husband’s busy work schedule, Mother went to Buffalo on June 1, 2017, to stay with her mother for the summer.⁵ Mother resumed her former waitressing job, but planned to return to the resort in Montana after her maternity leave expired. Her mother also planned to move to Montana to be with Mother and her family. While in Buffalo, Mother exercised her four days a month summer visitation and watched BDC participate in his weekly rodeo activities. She requested three additional visits. Father denied her requests, except he allowed Mother to take BDC to see a movie.

[¶12] The district court held a one-day trial on August 2, 2017. The parties submitted proposed findings of fact and conclusions of law shortly thereafter. Several months later, on January 8, 2018, the district court entered its Findings of Fact, Conclusions of Law, and Order . The district court granted Father primary physical custody of BDC commencing February 1, 2018. The court granted Mother visitation the last full week of every month, but did not provide any additional visitation for holidays or extended time in the summer until BDC enters kindergarten. Father testified that if granted custody, he would not enroll BDC in kindergarten until he is six years old.

[¶13] Mother filed a Motion for New Trial or, in the Alternative, Motion to Alter or Amend Judgement (Rule 59 motion) on February 5, 2018 and requested a hearing. The

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district court did not schedule a hearing or enter an order on Mother’s post-judgment motion. Mother filed a notice of appeal on June 6, 2018.

DISCUSSION

I. Jurisdiction

[¶14] We first determine whether we have jurisdiction to consider this appeal. Evans v. Moyer , 2012 WY 111, ¶ 9, 282 P.3d 1203, 1208 (Wyo. 2012). The existence of jurisdiction is a question of law we review de novo. Golden v. Guion , 2016 WY 54, ¶ 11, 375 P.3d 719, 722–23 (Wyo. 2016) (citation omitted). Our jurisdiction is limited to timely appeals from final, appealable orders. W.R.A.P. 1.03(a) ; W.R.A.P. 1.04 ; see also Evans , ¶ 11, 282 P.3d at 1208 (citations omitted). A notice of appeal is timely if filed within 30 days from entry of the appealable order. W.R.A.P. 2.01(a). The district court entered its Findings of Fact, Conclusions of Law, and Order on January 8, 2018. Mother did not file her notice of appeal within 30 days following entry of that order, but instead filed her Rule 59 motion on February 5, 2018.

¶15] A timely-filed Rule 59 motion tolls the time to file a notice of appeal if filed no later than 28 days after entry of the judgment. W.R.C.P. 59(b), (e) ; W.R.A.P. 2.02(a). The time for filing a notice of appeal begins anew after an order granting or denying the Rule 59 motion is entered, or when the motion is deemed denied. W.R.A.P. 2.02(b) ; see also Hodges v. Lewis & Lewis, Inc. , 2005 WY 134, ¶ 20, 121 P.3d 138, 144–45 (Wyo. 2005). Mother timely filed her Rule 59 motion on February 5, 2018; however, Father argues that the motion did not toll the time for filing a notice of appeal because the substance of the motion simply requests reconsideration of the district court’s decision. See, e.g. , Sherman v. Rose , 943 P.2d 719, 721 (Wyo. 1997), overruled by Plymale v. Donnelly , 2006 WY 3, 125 P.3d 1022 (Wyo. 2006), and overruled by Essex Holding, LLC v. Basic Properties, Inc. , 2018 WY 111, 427 P.3d 708 (Wyo. 2018). Father acknowledges that we recently overruled our prior precedent supporting his position, but argues Essex should apply prospectively only. Essex Holding, LLC , ¶ 40, 427 P.3d at 721.

[¶16] Generally, civil case decisions apply retroactively because the "ruling of a court is deemed to state the true nature of the law both retrospectively and prospectively." Harvey By & Through Harvey v. Gen. Motors Corp. , 739 P.2d 763, 765 (Wyo. 1987) (citations omitted). "Whether the general rule should be departed...