Inman v. Williams

• Decision Date: 09 April 2009
• Docket Number: No. S-08-0113.,S-08-0113.
• Citation: 2009 WY 51,205 P.3d 185
• Parties: Walker Patterson INMAN, Jr., Appellant (Plaintiff), v. Daisha Loraine WILLIAMS, f/k/a Daisha Loraine Inman, Appellee (Defendant).
• Court: Wyoming Supreme Court

205 P.3d 185

2009 WY 51

Walker Patterson INMAN, Jr., Appellant (Plaintiff), v. Daisha Loraine WILLIAMS, f/k/a Daisha Loraine Inman, Appellee (Defendant).

No. S-08-0113.

Supreme Court of Wyoming.

April 9, 2009.

Representing Appellant: John D. Bowers and Joshua T. Smith of Bowers Law Firm, P.C., Afton, Wyoming.

Representing Appellee: William L. Combs of Combs Law Office, LLC, Evanston, Wyoming.

Before GOLDEN and HILL, JJ., and KAUTZ, DONNELL, and PERRY, DJJ.

HILL, Justice.

[¶ 1] Appellant, Walker P. Inman, Jr. (Father), appeals from a district court order which settled several matters that were in dispute between Father and Daisha Loraine Williams (fka Inman) (hereafter Mother). We will affirm the district court's order.

ISSUES

[¶2] Father raises these issues:

I. Did the district court abuse its discretion when it entered an order restricting [Father's] rights in caring for his children not supported by the evidence and/or a violation of his fundamental rights to associate [with] and raise his children?

II. Did the district court abuse its discretion in ordering [Father] to post a bond in the amount of $50,000.00 in the event he moves to South Carolina?

III. Did the district court abuse its discretion and violate [Father's] fundamental constitutional right concerning the care, custody and control of his minor children when it precluded him from selecting a counselor of his own choosing for the minor children?

IV. Did the district court err as a matter of law when it stated that under certain conditions, it would "reopen" [Mother's] petition to modify custody?

V. Did the district court abuse its discretion in ordering [Father] to pay [Mother] a per diem when she exercises her visitation?

VI. Did the district court err as a matter of law by permitting the guardian ad litem to indirectly testify?

VII. Did the court abuse its discretion in finding that visitation was in the best interests of the child[ren] when the evidence did not support such a finding?

VIII. Did the district court err as a matter of law in not ordering [Mother] to pay child support?

IX. Did the district court abuse its discretion in conditioning custodial rights upon the conduct of the non-custodial parent?

Mother addresses the issues raised by Father somewhat superficially and posits these contentions:

I. The order issued on December 10, 2007, is not an appealable order.

II. Sanctions are appropriate, and should be awarded, for [Father's] pursuit of this appeal.

III. Even if found appealable, [Father's] arguments are so devoid of merit as to warrant dismissal or affirmance.

In his reply brief, Father asserts that the instant appeal is from an appealable order, that there is no basis for sanctions, and that his arguments have merit.

FACTS AND PROCEEDINGS

[¶3] We have reviewed this matter on a previous occasion, and it is necessary to consult that opinion for a summary of the facts and circumstances that have led up to this juncture in the proceedings. Inman v. Williams, 2008 WY 81, ¶¶ 3-9, 187 P.3d 868, 869-74 (Wyo.2008) (Inman I).¹ Although we dismissed that appeal because the order from which the appeal was taken was not an appealable order, we made some specific findings that are pertinent to this appeal and, under our supervisory authority, we issued directives to the lower court:

After careful consideration of the parties' respective contentions, we find that Mother's arguments are more persuasive. We hold the order in question is not an appealable order under W.R.A.P. 1.05(b). The true thrust of the court's order is to provide therapeutic counseling to the parties' children so that eventually Mother's long-delayed visitation with her children can be determined and established. Until the children's therapeutic counseling has reached the point at which Mother's visitation can be determined and established, the terms of that visitation have not been fixed. Because the order does not hold Father in contempt and does not fix the terms of Mother's visitation, the order does not determine the action.

Although the order contains language that the children's therapeutic counselor, in consultation with the guardian ad litem, shall determine the terms of Mother's visitation when the children have been prepared for that visitation, in the exercise of this Court's supervisory authority, we direct the therapeutic counselor and the guardian ad litem to recommend such terms to the district court and that court shall establish, with all deliberate speed, the appropriate terms of visitation as provided by statute. [Emphasis added.]

Id., ¶¶ 17-18, 187 P.3d at 876.

[¶4] It suffices here to note that the problems between the parties with respect to child visitation have still not been fully resolved. The instant proceedings were initiated by Father's petition to relocate his primary residence and that of the children to South Carolina. Mother objected to that petition and set out in detail the enormous and continuing problems she has had obtaining her court-ordered rights to visitation with the children, during times when both parties and the children were residing within miles of one another in Wyoming.

[¶5] The district court held a hearing on September 26, 2007, to address the petition to relocate, as well as to address other matters which the parties had been unable to resolve over the preceding seven years. On December 10, 2007, the district court issued this order:

1. That this Court has jurisdiction of the parties and the subject matter of this action.

2. A Decree of Divorce was entered on August 29, 2000, in the Eighth Judicial District Court which incorporated the Parties' Property Settlement and Child Custody and Visitation Agreement. [Father] was granted primary care and custody of the parties' two minor children, subject to [Mother] having visitation pursuant to the provisions set forth in the Recommendations of the Guardian ad Litem for [the children], dated July 12, 2000.

3. On June 25, 2001, a Stipulated Order Modifying Visitation Provisions of Decree of Divorce was entered wherein [Mother's] visitation was modified and set forth in great detail. However, in essence all visitation was to occur in the presence of, and with the assistance of, a Qualified Care Provider; further, visitation was altered to occur every Saturday from 10:00 am until 4:00 pm, alternating holidays from 10:00 am until 6:00 pm, telephone visitation every Monday, Wednesday and Friday from 6:00 pm until 6:20 pm.

4. The Court file reflects numerous filings thereafter concerning visitation and the lack thereof.

5. [Father] filed Notice of Intent to Relocate pursuant to the Court's January 2, 2007, order. [Mother] objected to the relocation and filed for temporary custody of the children.

6. The Wyoming and the United States Constitutions provide parents with a constitutional right to travel, including the right to relocate. The Wyoming Supreme Court, citing Love v. Love, 851 P.2d 1283 (Wyo.1993), held in Watt v. Watt, 971 P.2d 608 (Wyo.1999), that courts must consider whether a relocating parent's motives for proposing the move are legitimate, sincere, in good faith, and whether reasonable visitation is possible for the remaining parent. The Court reiterated this principle in Resor v. Resor, 987 P.2d 146 (Wyo.1999), stating that the right to travel should not be denied, impaired, or disparaged unless clear evidence demonstrates an additional, substantial, and material change of circumstances and the detrimental effect the move would have on the children.

7. This Court is satisfied that legitimate good faith motives exist for [Father's] proposed move to South Carolina. However, the Court is concerned with establishing and maintaining reasonable visitation for [Mother who is] remaining in Wyoming.

8. [Mother] has failed to show a material and substantial change of circumstances warranting a change of primary custody at this time.

9. The Court finds that the course of pre-visitation counseling previously ordered by the Court, which was intended to prepare and facilitate the (re)establishment of visitation between the parties' minor children and [Mother] has not been effective, and in fact has had the opposite effect.

10. The Court finds that [Father] has been less than diligent in making the children available for counseling, and in some instances has actively discouraged the children from participating, and in general his relationship with the counselor selected by the Court to provide services has caused the counselor to terminate the relationship.

11. At the same time, [Mother's] lifestyle and relationships, particularly with Randy Williams, raise legitimate concerns about her judgment and commitment to a relationship with her children.

12. The Court finds that it is in the children's best interest that some contact occur and reasonable visitation be established between [Mother] and her minor children immediately and prior to [Father's] relocation to South Carolina.

13. In the absence of some reasonable degree of visitation prior to [Father's] proposed relocation to South Carolina it is extremely doubtful that [Mother] will have the opportunity to exercise visitation which would not be in the best interests of the minor children.

14. The Court finds that even if some degree of visitation takes place prior to [Father's] relocation and is successful that after the [Father] relocates, [Mother] will be, because of the parties' relative financial positions² and the previous history of this relationship, at a clear disadvantage in pursuing and enforcing her right to visitation with her children.

IT IS HEREBY CONSIDERED, ORDERED ADJUDGED AND DECREED as follows:

1. [Father] shall make the parties' minor children immediately available for visitation with their [Mother] ... beginning no later than January 1, 2008.

2. Said visitation shall be supervised by persons and at a location approved by the Guardian ad Litem. In the absence of...