Martin v. Hart

Decision Date31 October 2018
Docket NumberS-18-0019
Citation429 P.3d 56
Parties Heather MARTIN, Appellant (Respondent), v. Christopher HART, Appellee (Petitioner).
CourtWyoming Supreme Court

Representing Appellant: Keith R. Nachbar, Keith R. Nachbar, P.C., Casper, Wyoming.

Representing Appellee: Stacy E. Casper, Casper Law Office, LLC, Casper, Wyoming.

Before DAVIS, C.J., and BURKE* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

FOX, Justice.

[¶1] Heather Martin (Mother) and Christopher Hart (Father) had a brief romantic relationship, which ended before their child was born. Father filed a Petition to Establish Paternity, Custody, Visitation, and Support. The district court awarded primary physical custody to Mother, with a visitation schedule that requires extensive travel between Mother’s residence in Glenrock, Wyoming, and Father’s residence in Mesa, Arizona, until the child reaches school-age, at which time the parties must agree on a new visitation schedule or seek modification from the district court. The order also requires Father to pay child support below the presumptive statutory amount. Mother appeals the district court’s visitation schedule and its child support determination. We reverse and remand.

ISSUES

[¶2] The parties raise three issues on appeal, which we rephrase:

1. Did Mother appeal an order over which this Court has jurisdiction?
2. Did the district court abuse its discretion when it imposed a graduated visitation plan requiring extensive travel that does not specify how visitation will work when the child starts kindergarten?
3. Did the district court abuse its discretion in establishing Father’s child support obligation?
FACTS

[¶3] Father and Mother met in Casper, Wyoming, during the summer of 2015, and began a romantic relationship. That fall, Mother and Father broke up, and Mother learned she was pregnant. Initially Father and Mother communicated about the pregnancy, but in early 2016, Mother changed her phone number and blocked Father on social media "so that he could not reach [her] anymore[.]" Meanwhile, Father moved to Mesa, Arizona, to accept a job. In March, Father filed a Petition to Establish Paternity, Custody, Visitation, and Support in district court.

[¶4] Mother gave birth to a son, LH, in June 2016. Father learned of the birth two days later from his mother, who had seen pictures of the baby on Facebook. Father travelled from Arizona to Wyoming to visit LH in July. He visited again in September, but Mother "kicked [him] out of the house" because he was taking photos after she had asked him not to. In November, Father and Mother entered into a Stipulated Temporary Agreement Establishing Paternity, Child Custody, Visitation and Support that established Father as LH’s biological father, awarded Mother primary physical custody, established monthly visitation for Father, and required Father to pay child support of $646.78 per month during the pendency of the case. However, due to scheduling conflicts between Mother and Father and the expense of travelling from Arizona to Wyoming, Father missed monthly visitation in December 20161 and in January, March, May, June, and July 2017. When he did visit, Father did not spend time alone with LH and never had him overnight.

[¶5] Mother quit working before LH’s birth and did not seek new employment. While she was pregnant with LH, she and her older daughter lived with her mother and then a friend, without paying rent. She and her children then lived with her grandmother, again without paying rent. In 2017, she and her children moved in with her boyfriend, who pays for rent and utilities and bought her a car. Mother receives government assistance via food stamps and Medicaid.

[¶6] At the hearing on Father’s petition, Father testified that he lives in Mesa, Arizona, with his fiancée and their infant son, where he works at an engineering firm. He also testified that he secured a spot for LH at a daycare center in Arizona, took parenting classes, and has a good relationship with LH, but has been prevented from spending more time with him because it was difficult to set up visitation with Mother and because he could not afford the approximately $1,500 cost of each visit. Father’s mother testified that he is a good father to LH and his other son. His fiancée testified similarly, but added that visitation with LH "never goes smoothly" because "[e]very time he tries to get visitation it’s never what he asks for."

[¶7] Father also testified that he could not pay both the cost of his monthly child support and travel costs to visit LH, but that Mother had told him not to worry about child support. Father requested that child support be reduced from the statutorily presumed amount to $300 per month so he could afford transportation costs to visit LH, and expenses for his other son. Father also asked for primary physical custody of LH or, failing that, either three-month rotations between his residence and Mother’s or divided school year and summer visitation with alternating holidays.

[¶8] Witnesses for Mother testified that she is a good parent to both of her children and has a strong support system in the Casper area. Mother testified that she facilitates a relationship between LH and Father’s parents and that, even though she and Father do not always communicate well, she wants Father and LH to develop a father-son bond. However, she was not yet comfortable with overnight visitation because Father and LH had not spent enough time together. Mother also requested primary physical custody with a graduated visitation plan for Father, with LH to begin travelling to Arizona overnight at age four.

[¶9] Applying the factors in Wyo. Stat. Ann. § 20-2-201(a), the district court found:

(i). The quality of the relationship each child has with each parent. The Court finds that the parties are equal in this regard. The testimony is that both of them have positive relationships with the child.
(ii). The ability of each parent to provide adequate care for the child throughout each period of responsibility, including arranging for the child’s care by others as needed. There was testimony that [Mother] is a stay-at-home mom, and [Father] has arranged for childcare for the minor. There was also testimony that [Mother] is completely dependent on her boyfriend for all means of support except for the public assistance that she receives while living with him. So the Court finds that to be a neutral factor between the parties.
(iii). Regarding the relative competency and fitness of each parent, the Court finds that the parties are equal. They both appear competent, fit and able to care for the child.
(iv). The parents’ willingness to accept all the responsibilities, including a willingness to accept care at specified times and to relinquish care to the other parent at specified times. The Court finds that [Mother] has unreasonably restricted visitation for [Father], has unreasonably restricted contact between [Father] and the child and has generally been somewhat inflexible. This factor favors [Father].
....
(viii). The geographic distance between the residences of the parties. [Mother] lives in Glenrock, and [Father] has relocated to Mesa. That is a distance that requires significant hours to drive and a fairly significant flight [ ] between the two locations, which is a consideration for this Court.
(ix). The current physical and mental ability of each parent to care for the child. The parties are equal with regard to that factor.
(x). Any other factors that the Court deems necessary and relevant. That factor would be that the child is almost two (2) and has lived the majority of his life with [Mother] and her significant other. Given the child’s age, the Court finds that factor favors [Mother], only because [Father] had to relocate to take a job.

[¶10] The district court determined it in the best interests of LH to award legal and physical custody to Mother, subject to Father’s reasonable visitation. It ordered a graduated visitation plan, under which Father has seven consecutive days of monthly visitation until LH turns two, ten consecutive days of monthly visitation from age two to three, and fourteen consecutive days of monthly visitation from age three to five. The order awarded Father summer visitation for three consecutive weeks in 2018, four consecutive weeks in 2019, six consecutive weeks in 2020, and eight consecutive weeks from 2021 on. It also established a holiday visitation schedule under which the parties were to alternate spring break and holidays, except Mother’s and Father’s days. It provided that "[a]ll holiday visitation shall supersede monthly visitation," and ordered Father to choose the dates for monthly visitation in odd-numbered years and Mother in even-numbered years. Finally, the district court ordered that "[o]nce the child starts kindergarten, if the parties cannot agree as to a monthly visitation schedule, they shall seek a modification of custody and/or visitation from the Court."

[¶11] The district court gave the parties several options for travel methods and cost allocation. Both parties can drive, bearing their own fuel and mileage costs, and meet halfway to exchange LH. Father can choose to fly to Casper to pick up LH and fly with LH back to Phoenix, Arizona, at his cost. If Father chooses this option, Mother must fly to Phoenix at the end of the visit to pick up LH and return to Casper with him, bearing the cost of these flights. Father can also choose to fly into Denver and have Mother meet him there to drop off LH. Again, Mother must fly to Phoenix at the end of the visit to pick up LH, and she must bear the cost of the drive to and from Denver and the flights into and out of Phoenix. Finally, Father can drive to Wyoming for visitation, and Mother must pay mileage for his return trip to Arizona. Under the order, Father chooses where visitation occurs and which travel method they use.

[¶12] Without stating the presumptive child support amount on the record, the district court deviated downward from statutory...

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