Kleinpeter v. Kleinpeter

• Decision Date: 26 June 2017
• Docket Number: S-16-0269
• Citation: 397 P.3d 189
• Parties: Mandi Lynn KLEINPETER, n/k/a Mandi Lynn DeLeon, Appellant (Plaintiff), v. Dedrick Ray KLEINPETER, Appellee (Defendant).
• Court: Wyoming Supreme Court

397 P.3d 189

Mandi Lynn KLEINPETER, n/k/a Mandi Lynn DeLeon, Appellant (Plaintiff),

v.Dedrick Ray KLEINPETER, Appellee (Defendant).

S-16-0269

Supreme Court of Wyoming.

June 26, 2017

Representing Appellant: Wendy S. Owens, Casper, WY.

Representing Appellee: No appearance.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL, Justice.

[¶1] Mandi Kleinpeter, n/k/a Mandi DeLeon (Mother), and Dedrick Kleinpeter (Father) divorced after having two children together. About four months after entry of the Decree of Divorce, Father filed a motion for an order to show cause why Mother should not be held in contempt for failing to allow Father in-person and telephonic visits with the couple's children. Following an evidentiary hearing, the district court found Mother in contempt of the Decree's provisions allowing Father reasonable visitation with the children and requiring that both parents make reasonable efforts to insure the children free access to and unhampered contact with both parents. We affirm.

ISSUES

[¶2] Mother states the issues on appeal as follows:

1. Did the District Court err in finding Appellant in civil contempt of court with regard to supervised visitation?

2. Did the District Court err in finding Appellant in civil contempt of court with regard to telephonic contact?

FACTS

[¶3] Mother and Father were married on May 3, 2009 and had two children together: RMK, born in 2010, and JCK born in 2011. On March 16, 2015, Mother filed a complaint for divorce, and on February 9, 2016, the district court entered a Decree of Divorce (hereinafter Divorce Decree or Decree). The Decree stated that the parties generally agreed and stipulated that, among other facts:

5. * * * [Mother] is a fit and proper person to have the legal and physical care, custody of the minor children of the parties; and it is in the children's best interests to be placed in the legal and physical custody of [Mother] with [Father] having rights of reasonable visitation as agreed by both parties upon reasonable notice with the initial six months of visitation to be supervised by a third party such as the Casper Family Connections paid for by [Father].

[¶4] With regard to custody of the children, visitation, and the obligation to cooperate, the Decree ordered:

3. That [Mother] is awarded the legal and physical custody of the parties' children * * * ; and that [Father] will be entitled to reasonable visitation upon reasonable notice with the first six months of visitation to be supervised by a third party such as the Casper Family Connections paid for by [Father]. Following the successful completion of the supervised visitation [Father] can have visitation with reasonable notice for alternate weekends and alternate holidays. In order for visitation to be utilized [Father] must not utilize in any fashion alcohol or illegal/synthetic drugs or in any way improperly utilize drugs whether the drugs are prescribed to [Father] or not. [Father] will be responsible for any transportation costs in exercising his visitation.

* * * *

10. Obligation to Cooperate . Neither of the parents shall complain about or malign the other nor the others' family. Neither shall either directly or indirectly cause the child[ren] to lose respect for or alienate the affection of said child[ren] toward the other parent. The parents shall cast each other in the most favorable light before the child[ren] and shall recognize the great importance of the other's parent/child relationship. Either parent has the right to petition to enforce or revise this decree with regard to the care, custody, visitation and maintenance of the child[ren] as the circumstances of the parents and the benefit of the child[ren] requires in accordance with W.S. 20-2-201 through 20-2-204 and 30-2-311(d). Any breach of this instruction shall constitute a material violation of this order. Additionally, both parents shall:

* * * *

(b) Make every reasonable effort to insure free access of the child[ren] to and unhampered contact with both parents.

[¶5] On June 13, 2016, Father filed a motion for order to show cause in which he alleged that Mother had violated the Decree by denying reasonable visitation and by denying him access to the children by telephone. The district court entered an order to show cause, and Mother responded with her traverse, which stated, in part:

5. While [Father] wishes that visitation be supervised by SueAnn Tavener, LPC, it is in the children's best interest that visitation be supervised through Casper Family Connections as recommended in the Decree of Divorce. It is further in the children's best interest that [Father] not graduate to standard visitation until he has completed six months of consistent, regular, supervised visitation through Casper Family Connections.

6. No specific visitation schedule was ordered, particularly regarding the six months of supervised visitation. There is no effective visitation schedule to be violated or enforced. [Father] cannot claim a violation of a non-specific order.

* * * *

9. [Mother] has not willfully violated this Court's Orders, and therefore the Motion for Order to Show Cause should be denied.

[¶6] Following an evidentiary hearing, the district court entered an order holding Mother in contempt. The court concluded Father had proved by clear and convincing evidence that the Decree was an effective order directing visitation and requiring the parties to make every reasonable effort to insure free access of the children to and unhampered contact with both parents. The court further concluded Father had proved by clear and convincing evidence that Mother was aware of these Decree provisions, that she failed to comply with the provisions, and that her failure to comply was willful. The court's underlying findings were:

a. [Mother] permitted approximately six in-person visitations between [Father] and the children between March 2016 and early July 2016. Visitations took place at the Natrona County Public Library, [Father's] sponsor's home, Highland Park Community Church, a park at which a Juneteenth celebration was taking place, and the Eastridge Mall. [Mother] supervised some of the visitations; at others, she dropped the children off with [Father] without a clear understanding of who would be supervising the visitations.

b. At some point, [Mother] informed [Father] that she would no longer allow visitations except as supervised by Casper Family Connections.

c. [Father] has not been allowed to see the children since approximately July 3, 2016.

* * * *

e. In February or March, 2016, shortly after [Father] moved from the Therapeutic Community program to the Adult Community Corrections program at Caper Re-Entry Center, the parties reached an agreement whereby [Father] would have telephonic visitation with the children on Tuesdays, Thursdays, and Saturdays. The agreement was not reduced to a court order.

f. [Father] exercised some telephonic visitation with the children.

g. At some point, [Mother] stopped taking [Father's] phone calls and stopped returning his calls. [Father] has not been allowed to exercise telephonic visitation with the children since that point.

[¶7] Based on these findings, the district court held Mother in contempt of court. It ordered:

[Mother] may purge her contempt by allowing alternating weekend and alternating holiday visitation in accordance with pages 2-3, paragraph 3, of the Decree of Divorce , beginning the weekend following August 9, 2016. This date is chosen as it will be six months from the entry of the Decree of Divorce .

[¶8] Mother timely filed a notice of appeal, which included a statement that the contempt hearing was not reported. Mother thereafter filed her proposed statement of the evidence and proceedings pursuant to W.R.AP. 3.03. Father filed no objection or proposed amendments to Mother's proposed statement, and on November 10, 2016, the district court entered a Statement of Proceedings Pursuant to W.R.A.P. 3.03. The district court's statement noted that Mother's proposed statement accurately reflected a portion of the parties' testimony but omitted portions on which the court relied in its ruling. The court detailed that testimony in its statement of the proceedings, and the record reflects no objection to the court's recitation.

STANDARD OF REVIEW

[¶9] We review civil contempt orders in domestic relations cases for the following:

This Court does not interfere with an order holding a party in civil contempt of court in a domestic relations case "absent a serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion." Roberts v. Locke , 2013 WY 73, ¶ 14, 304 P.3d 116, 120 (Wyo. 2013). See also Munoz v. Munoz , 2002 WY 4, ¶ 6, 39 P.3d 390, 392 (Wyo. 2002) ; Olsen v. Olsen , 2013 WY 115, ¶ 33, 310 P.3d 888, 896 (Wyo. 2013). In reviewing the exercise of a district court's broad discretion under its contempt powers, we must determine whether the court reasonably could have concluded as it did. Roberts , ¶ 14, 304 p.3d [P.3d] at 120, citing Stephens v. Lavitt , 2010 WY 129, ¶ 18, 239 P.3d 634, 639 (Wyo. 2010).

Waterbury v. Waterbury , 2017 WY 11, ¶ 7, 388 P.3d 532, 534-35 (Wyo. 2017) (quoting Shindell v. Shindell , 2014 WY 51, ¶ 7, 322 P.3d 1270, 1273 (Wyo. 2014) ).

DISCUSSION

[¶10] We have outlined the findings a district court must make to support a civil contempt order.

A civil contempt order must be supported by clear and convincing evidence. McAdam v. McAdam , 2014 WY 123, ¶ 14, 335 P.3d 466 at 470 ; Shindell , ¶ 10, 322 P.3d at 1274. Clear and convincing evidence is "evidence that would persuade a finder of fact that the truth of the contention is highly probable." Id . The elements of civil contempt are: "1) an effective court order that required certain conduct by the alleged contemnor; 2) the contemnor had knowledge of the order; and 3) the alleged contemnor disobeyed the order." Id . Once these elements are proven, the burden shifts to the person charged with contempt to show he or she was

...