Jackson v. Jackson, 03-220.

• Decision Date: 26 August 2004
• Docket Number: No. 03-220.,03-220.
• Citation: 96 P.3d 21,2004 WY 99
• Parties: Misty Schanell JACKSON, Appellant (Plaintiff/Respondent), v. Kevin Wayne JACKSON, Appellee (Defendant/Petitioner).
• Court: Wyoming Supreme Court

96 P.3d 21

2004 WY 99

Misty Schanell JACKSON, Appellant (Plaintiff/Respondent), v. Kevin Wayne JACKSON, Appellee (Defendant/Petitioner).

No. 03-220.

Supreme Court of Wyoming.

August 26, 2004.

Representing Appellant: Laurie Brooke Seidenberg of Seidenberg Law Office, Laramie, Wyoming.

Representing Appellee: Tony S. Lopez, Laramie, Wyoming.

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

KITE, Justice.

[¶ 1] Alleging a material change of circumstances, Kevin Jackson filed a petition for modification of a custody order which granted his former wife, Misty Jackson, primary physical custody of their two children. The district court granted the petition and awarded Mr. Jackson primary physical custody of the children because he had substantially improved his life and had become more stable, whereas Ms. Jackson had not. Ms. Jackson appeals the order, and we affirm.

ISSUES

[¶ 2] The parties agree that the issues presented are as follows:

1. Did the trial court abuse its discretion when it found that a material change in circumstances had occurred despite the lack of significant or compelling evidence to support that finding?

2. Did the court abuse its discretion when it found that it would be in the best interests of the children to award custody to father?

3. Did the trial court abuse its discretion when it failed to consider the evidence of spousal abuse presented to it, and when it failed to make arrangements for the children that best protected the children from further harm, as mandated by Wyoming Statute, § 20-2-201(c)?

FACTS

[¶ 3] Kevin and Misty Jackson were married on December 11, 1999, in Las Vegas, Nevada, and divorced on November 7, 2000, in Laramie, Wyoming. The couple has two children together, a girl born on January 2, 1998, and a boy born on June 16, 2000. The divorce decree ordered joint custody and awarded primary physical custody of the children to Ms. Jackson. The court granted Mr. Jackson reasonable visitation and ordered him to pay child support.

[¶ 4] Despite their divorce, the Jacksons continued to live together until June 2002. However, their relationship during that time remained troubled. In August 2001, Ms. Jackson filed a petition for a restraining order against Mr. Jackson pursuant to the Family Violence Protection Act after Mr. Jackson attacked a man with whom she had been dancing in a bar. No hearing was held. However, a stipulated order was to be prepared by Father's attorney and submitted to the court. An order was never entered, but both parties testified they believed one was in effect and acted accordingly. Ultimately, the couple reunited and moved to Wendover, Nevada in October 2001 to "start over." While in Wendover, Ms. Jackson worked as a waitress and Mr. Jackson worked for a cable company. However, in June 2002, in what would be their final separation, Ms. Jackson and the children moved back to Laramie, while Mr. Jackson remained in Wendover. Ms. Jackson lived with her parents in their home, together with her brother and sister-in-law.

[¶ 5] From September to December 2002, Ms. Jackson changed jobs five times. In February 2003, after being unemployed for over two months, she enrolled in cosmetology school. She left that program, and enrolled in a different school a few months later. While Ms. Jackson was at school, the children attended daycare. Mr. Jackson remained in Wendover and continued working for the cable company. He made significant improvements in his lifestyle including quitting drinking, smoking, and chewing and ending his association with "bad influences." He received a promotion at work and was able to provide health insurance for the children. He also developed a stable relationship with a woman whom he ultimately married less than two weeks before the hearing on his petition for modification of custody.

[¶ 6] In January 2003, Mr. Jackson filed a petition for modification of custody and support alleging it was in the best interests of the children that he be granted primary physical custody of them. Ms. Jackson filed an answer and counterclaim requesting that the court dismiss Mr. Jackson's petition and increase his child support obligation.¹ At a hearing on June 13, 2003, the district court heard testimony from both parties, as well as their friends and family. The district court issued its decision letter on July 1, 2003, finding "a change of circumstances sufficient to warrant modification of custody and support and that such modification is in the best interests of the minor children." Ms. Jackson timely filed this appeal.

STANDARD OF REVIEW

[¶ 7] In custody matters, the welfare and needs of the children must be given paramount consideration. We recently stated our standard of review in JRS v. GMS, 2004 WY 60, ¶ 10, 90 P.3d 718, ¶ 10 (Wyo. 2004) (some citations omitted):

That which is in the best interests of the child is a question for the trier of fact, and we will not overturn the decision of a trial court unless we are persuaded that an abuse of discretion is present or that there has been a violation of some legal principle. Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998). When we are asked to review the action of a district court, in the context of the abuse of discretion standard, the core of the inquiry we must make is the question of the reasonableness of the choice made by the trial court. Judicial discretion is a composite of many things. Among these are conclusions drawn from objective criteria. It means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We must ask whether or not the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. The party seeking to modify established child custody provisions of a divorce decree has the burden of showing that a material change in circumstances that affects the child's welfare occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the best interests of the affected child.

DISCUSSION

[¶ 8] Ms. Jackson argues the district court abused its discretion when it found that a material change in circumstances had occurred and that it would be in the best interests of the children to award primary physical custody to Mr. Jackson. She also claims the court erred when it failed to consider evidence of spousal abuse in making its determination. This Court has prescribed the following test to be applied in such situations:

A party who is seeking to modify the child custody provisions of a divorce decree has the burden of showing that a substantial or material change in circumstances, which affects the child's welfare, occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the child's best interests.

Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (citations omitted). Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis) sets forth the factors the court must consider in making custody determinations. The statute states the court shall consider, but is not limited to, the following factors:

...

(i) The quality of the relationship each child has with each parent;

(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;

(iii) The relative competency and fitness of each parent;

(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;

(v) How the parents and each child can best maintain and strengthen a relationship with each other;

(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;

(vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;

(viii) Geographic distance between the parents' residences;

(ix) The current physical and mental ability of each parent to care for each child;

(x) Any other factors the court deems necessary and relevant.

[¶ 9] The district court found "that there has been a change of circumstances sufficient to warrant modification of custody and support and that such modification is in the best interests of the minor children of the parties." The court found there was no real change in Ms. Jackson's circumstances, citing she "continues to live with her parents, and they continue to provide for her and her children. She has been through numerous jobs, none of which have worked out .... there is no prospect of employment for at least another year. She continues to prowl the bars at least two nights each week, sometimes more, while her parents look after the children." On the other hand, the court found "significant" changes in Mr. Jackson's circumstances, including: regular employment for over 18 months, financial responsibility for himself and his children, and lifestyle changes which enhanced his ability to parent his children. The court found, "None of these changes have been of long-standing duration and none of them would be sufficient, standing alone, to justify a finding that there has been a significant change in circumstance." Yet, the court concluded the combined changes were significant enough to warrant custody modification.

Change in Circumstances

[¶ 10] In considering requests for custody modification, the courts are usually faced with changes in circumstances that cause the custodial parent's situation to deteriorate in some way to the detriment of the children. However, in some cases neither parent deteriorates, but one parent improves substantially, while the other...