Mace v. Nocera
| Decision Date | 07 December 2004 |
| Parties | MARTHA LOU MACE, Appellant (Plaintiff), v. MICHAEL ARTHUR NOCERA, Appellee. (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Raymond D. Macchia, Cheyenne, Wyoming.
Representing Appellee: Robert T. Moxley of Gage & Moxley, P.C., Cheyenne, Wyoming.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶1] Appellant, Martha Lou Mace (Mother), seeks review of an order of the district court issued upon the parties' cross-motions to modify their divorce decree with respect to child custody. In that order, the trial court placed the parties' son (Child) in the primary custody of Michael Arthur Nocera (Father). Mother contends that the district court failed to afford her procedural due process with respect to her motion for a change of judge pursuant to W.R.C.P. 40.1(b), as well as in not removing himself as the presiding judge. She also contends that the trial court erred in allowing a custody evaluator, who was not licensed in Wyoming, to testify at trial, and in failing to take into account the living environment in Father's home. We will affirm.
[¶3] The parties were married on January 4, 1993. Child was born on October 12, 1992. On April 7, 1994, Mother filed a complaint for divorce. A Decree of Divorce was entered on May 13, 1994. With respect to custody of Child, the decree provided: "...
[¶4] In October 1994, Mother left Wheatland to pursue enhancement of her career, as well as a romantic interest. As a result of that change of circumstances, Father sought and was awarded "sole temporary custody" of Child. On October 17, 1994, Father filed a petition to permanently modify custody, asking that he be awarded primary custody of Child with Mother having visitation. Mother contested the matter. After a hearing on Father's petition, the district court issued a decision letter that summarized the divorce proceedings and the original custody arrangements. The district court noted that the custody arrangements, to which the parties stipulated, operated smoothly so long as both parties lived and worked in Platte County. The district court also noted that Father and Mother were involved in domestic violence incidents, but eventually both parties dropped those matters. At that time Mother resided in Deer Lodge, Montana, with her boyfriend, Kenneth Holkan, whom she met while he was incarcerated in Wheatland for aggravated assault and battery (Mother worked as a jailer while in Wheatland).
[¶5] Employing the "best interests of the child" standard, the district court noted that neither parent had consistently demonstrated good judgment and that each considered Child "a prize to be won." However, finding Mother's testimony not to be credible and that Father was the parent "most likely to provide the child with stability, security, and an open attitude toward the other parent," the court awarded custody to Father and visitation to Mother. Mother sought reconsideration of the modification order, which was denied. When her attorney withdrew from his representation of her, she continued her battle pro se. Eventually, a middle ground was reached and another order modifying custody and visitation, again in favor of Father, was entered on December 8, 1995. The parties reconciled to some degree by 1997, and the district court approved a stipulation that provided for "joint custody" of the Child.
[¶6] On January 19, 2000, Father filed a petition for change of custody, and on February 10, 2000, Mother filed a counter-petition for change of custody. Mother also sought to have the case transferred to the First Judicial District in Cheyenne because all parties resided in Laramie County. Father opposed the transfer. However, the district court agreed that the matter should be transferred to Laramie County, and an order to that effect was entered on April 20, 2000.
[¶7] On August 8, 2000, the parties entered into a stipulation settling the matter of temporary custody pending further hearings, and the district court entered an order effectuating that stipulation on August 15, 2000. Although it is apparent that there were additional proceedings below, so far as the record on appeal shows, the next significant development in this matter occurred on April 12, 2002, when the parties, now including a guardian ad litem, stipulated to a custody evaluation to be done by Jorge L. Figueroa, Ph.D., a licensed psychologist practicing in Fort Collins, Colorado.2 On December 6, 2002, after Dr. Figueroa's report had been made available to all parties, Mother filed a motion for an additional custody evaluation. Mother contended that she did not "know" Dr. Figueroa was licensed only in Colorado, and not Wyoming, and that his report indicated "an unfair bias" against her. Dr. Figueroa reached a conclusion that Child should be in the primary custody of Father because his was the more stable of the two homes, and Father was the parent most likely to encourage Child's relationship with the other parent. On December 10, 2002, based on Dr. Figueroa's report, as well as other materials in the voluminous record of this case, Father filed a motion for temporary custody. In a decision letter filed of record on December 31, 2002, the district court declined to order a second custody evaluation and set a schedule for a pretrial conference and a trial.
[¶8] The trial in this matter was conducted on three days: March 5, 2003, April 16, 2003, and April 30, 2003. On March 5th, the district court heard some brief testimony from Mother, mostly about her contentions that she had obtained a "no contact" order from the police to protect her from Father because he had been threatening her, harassing her by phone, and stalking her. She also repeated her allegations about Father's alcoholism, mental illness, neglect of Child, and general bad character. Rocklon Edmonds, a prosecutor for the City of Cheyenne, testified about his handling of criminal complaints filed by Mother against Father. With respect to those complaints, prosecution of Father was deferred and he was placed on probation. Later, a petition to revoke probation was filed but was dismissed because Mother was not available to testify at the hearing on the motion. Edmonds also testified that he had never issued a "no contact" order for Mother, and against Father, except for perhaps an "informal" suggestion to police to tell people quarreling in circumstances such as those presented in this case, to stay away from each other temporarily. The district court also heard testimony from Dr. Figueroa, the gist of which already has been set forth. Martha Schilling, Ph.D., also testified as a witness that day. She was called on behalf of Mother. Her practice is limited to doing evaluations, including custody evaluations. Her testimony was limited to a critique of Dr. Figueroa's report, which she considered lacking in some respects. However, the source of some of her concerns was information provided to her by Mother that had not been otherwise validated or investigated (nor had much of it been previously reported by Mother in other court proceedings). Mother also called Gina John as a witness. She had been asked to treat Child at the Cheyenne Children's Clinic in 2000-2001, at Mother's behest, but without Mother first seeking Father's consent. John related that she did therapy but did not do custody evaluations and declined to enter into a therapeutic relationship with Child unless both parents fully consented to it and agreed to cooperate in the process. At the time, she felt she did not have "permission" from Father, although she conceded in cross-examination that she had no reason to believe that Father was opposed to the proposed counseling with her. She also conceded that she did not have a very good recollection of those events and that, because she was no longer employed by the clinic, she did not have access to the records created at the time of these events. In any event, her contact with Child was very limited.
[¶9] Father called Reanne White as a witness. For a time in 1990, the parties lived directly across the street from White. She and her husband continued to be friends with Father even after he moved away (and Mother remained at that location, whereas Father lived six or eight blocks away). She also knew Mother's...
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