JRS v. GMS, 03-111.

• Decision Date: 26 May 2004
• Docket Number: No. 03-111.,03-111.
• Parties: JRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent).
• Court: Wyoming Supreme Court

90 P.3d 718

2004 WY 60

JRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent).

No. 03-111.

Supreme Court of Wyoming.

May 26, 2004.

Representing Appellant: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.

Representing Appellee: GMS, Pro se.

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

HILL, Chief Justice.

[¶ 1] Appellant, JRS (Father), seeks review of an order of the district court denying his petition to modify a divorce decree so as to grant him primary custody of all four of his minor children. Appellee, GMS (Mother), did not file a brief in this appeal. In the district court proceedings she also filed a petition seeking custody of all four children. The district court found that neither party had demonstrated a material change of circumstances and maintained the status quo, continuing the parties' original stipulation that Father would have custody of the two older children, and Mother would have custody of the two younger children. We will reverse and remand for additional proceedings.

ISSUE

[¶ 2] Father poses this issue for our consideration:

Whether the district court erred when it found that there was no substantial and material change of circumstances as required by law to modify the Stipulated Decree of Divorce and denied [Father's] Petition for Modification of Decree of Divorce.

FACTS AND PROCEEDINGS

[¶ 3] The district court entered its stipulated decree of divorce on October 5, 2000. Custody of the parties' four children was established in the stipulation. Father was awarded custody of the parties' two older children, born May 9, 1990, and February 15, 1992. Mother was awarded custody of the parties' two younger children, born January 9, 1995, and May 1, 1997. Visitation rights were detailed in the decree. The decree included a section devoted to "PARENTAL COOPERATION PROVISIONS:"

Each parent shall:

a. Exercise discretion and cooperate with each other in exercising custodial and visitation rights so the best interest of the children is served.

b. Make every reasonable effort to insure that the children have free access to and unhampered contact with both parents.

c. Encourage the free and natural development of the children's love and respect for both parents and do nothing which may estrange the children from the other parent, or injure the opinion of the children as to the other parent.

d. Keep each other informed as to the location and phone number of the children at all times.

e. Promptly notify the other of any illness, accident or other circumstance seriously affecting the health or welfare of the children. Both parents shall have unlimited visitation privileges, consistent with the circumstances, for so long as the emergency situation continues.

f. Be entitled to complete information from any physician, dentist, psychologist or other specialist attending to the children for any reason whatsoever and shall be entitled to copies of any reports rendered by any such specialist. Neither parent shall do anything to frustrate the other parent's access to any health care records relating to the children.

g. Be entitled to complete detailed information from any teacher, school or college and shall be entitled to copies of all reports or records with respect to the children's education.

h. Consult with each other with respect to all matters of major importance affecting the welfare of the children.

[¶ 4] Initially, there were no difficulties with visitation because both parents continued to reside in Crook County. Not long after the divorce, Mother moved from Crook County to Belle Fourche, South Dakota. Father testified that Mother became uncooperative in allowing visitation. In addition, after the divorce, Father was convicted of battery on his former wife, and traveling to South Dakota was difficult for him because he had to get permission from his probation officer to leave Wyoming and go into another state. Mother would not agree to bring the children to, and pick them up from, the border. Mother denied parts of these assertions. The record reflects that neither parent had a very good specific memory, nor any meaningful records, so as to clarify what visitation had or had not occurred. [¶ 5] On July 8, 2002, Father filed a petition to modify the divorce decree¹ so as to give him primary custody of all four children. He asserted that there had been a material change of circumstances and that it was in the best interests of the children to be in his primary custody. Wyo. Stat. Ann § 20-2-204(c) (LexisNexis 2003) provides:

(c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a).² In any proceeding in which a parent seeks to modify an order concerning child custody or visitation, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances.

On that same date, Father also filed a motion for a temporary restraining order, seeking protection for the children in Mother's custody. That motion was premised on allegations that the parties' youngest daughter had been sexually molested by both Mother's fiancé and her brother. The district court issued a temporary restraining order on July 10, 2002. From that date forward, Mother did not have custody of any of the children, and her visits with the children have been supervised. On September 24, 2002, the district court continued the temporary restraining order pending further information being provided to the court.

[¶ 6] On December 27, 2002, Mother filed an answer to Father's amended petition for modification of the custody arrangements, and in that document also asked that custody be modified to award her custody of all four children.

[¶ 7] In January of 2003, all four children were removed from Father's home when substantiated allegations of child abuse were leveled against Father's new wife (Stepmother). Although Father was not accused of inflicting any abuse on his children, he was found to have failed to protect his children from Stepmother. Father complied with the case plan put into effect by DFS and eventually he regained custody of all four children. Stepmother is not permitted to have any contact with the children, but Father continues to be married to her and has maintained a relationship with her. In light of all these circumstances, a DFS professional who managed the child abuse case testified that placing the children in Mother's full-time care and control would not be in the best interests of the children and that the children expressed a preference to be with Father. Her observations were that the relationship between Mother and the children was strained, and that the children preferred to live with Father. It is a condition of the DFS case plan that Stepmother not be allowed near the children, and Father testified that he would honor that condition.

[¶ 8] A guardian ad litem³ (GAL) was appointed to represent the children. In a report received by the district court the day before trial on these matters began, the GAL summarized his investigation and offered some concrete suggestions to the district court:

Impressions

While all information received was dutifully weighed in preparing my report, I found the comments of and observations of Pam Andrews at CASA, the thoughts and observations of [RS—Father's brother] and the more candid comments of [Father] to be of particular importance in forming my impressions in this matter. If this were a case of first impression with neither party having significant others in their lives complicating their current situations, I would be inclined to say that [Father] is the better parent. But even then, I share [RS's] concern that given the number of children, their age's and [Father's] work schedule, for him to have primary custody of all the children could present problems. More importantly, this is not a case of first impression. The parties both have significant others, who to one extent or another continue to be a part of their lives, which cause me great concern.

I have no problem in concluding that [Stepmother] should be no where near the parties' children now or in the foreseeable future. Unfortunately, this is easier said than done as [stepmother] appears to continue to be lurking in the shadows of [Father's] life and as I do not feel comfortable that [Father] is anywhere close to choosing his children's welfare over the presence and opinions of [stepmother]. While less is known about [BB—Mother's fiancé] and his interactions with the parties' children, I likewise feel, despite [Mother's] claims to the contrary, [BB] continues to be a significant part of [Mother's] life. Though the allegations of sexual impropriety initially leveled against [BB] may be inconclusive enough to prevent the filing of criminal charges, nevertheless I cannot completely ignore this concern. Further, I find [RS's] observations of [BB] as having a quick temper and the admitted use of a cheese board to spank the parties' youngest child as indications that [BB] is not a positive aspect of the children's lives.

I find no easy or good solution to this case. Neither parent before or since their divorce presents a picture of the other that does not raise with me concerns regarding the safety and well being of their children. The parties originally chose, whatever the circumstances may have been, to enter into a split custody arrangement regarding their children. With the notable exception of the problems involving weekend visitation, until the appearance of the parties' respective significant others this arrangement seemed to be working relatively well.

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