Mecartney v. Mecartney

• Citation: 501 P.3d 197
• Decision Date: 29 December 2021
• Docket Number: S-21-0105
• Parties: David Laurence MECARTNEY, Appellant (Plaintiff), v. Kelly Cornell MECARTNEY, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

501 P.3d 197

David Laurence MECARTNEY, Appellant (Plaintiff),
v.
Kelly Cornell MECARTNEY, Appellee (Defendant).

S-21-0105

Supreme Court of Wyoming.

December 29, 2021

Representing Appellant: Alexandra Mijares Nash, DeFazio Law Office, LLC, Jackson, Wyoming; Lauren B. Browne, Mannen Browne LLC, Jackson, Wyoming.

Representing Appellee: Richard J. Mulligan, Mulligan Law Office, Jackson, Wyoming; Heather Noble, Attorney at Law, Jackson, Wyoming.

Guardian ad Litem: No appearance.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, Justice.

¶1] Mr. David Laurence Mecartney (Father) appeals from two district court orders—Decree of Divorce – Custody Order (Custody Order) and Decree of Divorce – Visitation and Transition Order (Visitation Order). He claims the district court abused its discretion when: (1) awarding primary custody to Ms. Kelly Cornell Mecartney (Mother) during the transition period to joint custody; (2) implementing a fifteen-month, five-phase transition plan; and (3) requiring Father to submit to regular alcohol testing during the transition. Father also claims the

[501 P.3d 199

delay of more than seven months prior to the entry of the orders is reversible error. While the district court abused its discretion in ordering a strict regime of alcohol testing, we affirm the district court's orders in all other respects.

ISSUES

¶2] The issues are:

1. Did the district court abuse its discretion in awarding primary custody to Mother?

2. Did the district court abuse its discretion in ordering a fifteen-month step up visitation which included a requirement that Father submit to regular alcohol testing?

3. Did the district court err in taking more than seven months after the final hearing to enter its custody and visitation orders?

FACTS

[¶3] Mother and Father married in 2004. Their only child, D., was born in May 2007. The couple had several homes, including a primary marital residence in Jackson, Wyoming. Father frequently traveled for his work as majority partner and president of an aviation consulting company. When D. was born, Mother sold her businesses to become D.'s primary caretaker.

[¶4] The marriage was contentious from the beginning. Mother and Father would argue, separate, and reconcile. Many of these arguments occurred in D.'s presence. In 2017, the animosity between Mother and Father escalated. Although they sought counseling to improve their communication skills, any improvement was temporary. In January 2019, Father returned an expensive necklace he had bought for Mother. Shortly thereafter, Mother filed for two protective orders claiming domestic abuse.¹ Father denied the charges and filed for divorce on March 8, 2019.² The court appointed a guardian ad litem (GAL) on May 6, 2019. The complaint for divorce requested joint legal custody with Mother having primary residential custody.

[¶5] Initially, neither Father nor Mother contested the prayer for joint legal custody or primary residential custody with Mother. They did contest the parameters of visitation. The district court entered a temporary visitation order in December 2019. At the time of this order, Mother had prevented Father from visiting D. since September.³ The temporary order identified inappropriate coparenting conduct by Mother occurring from 2017 through 2019. This conduct included Mother's interference with communication between Father and D.; filming videos of D. disparaging Father and sending these to Father; coaching D. in what to say to Father; sending Father numerous texts telling him he will never get custody; and sharing the details of the divorce with D. The district court made clear that Mother's estrangement and alienation efforts were to stop immediately. The court wrote:

This is a distressing case. Each parent is, individually, a multimillionaire. As a result, their child has privileges other children only see in daydreams and movies. This child should, ideally, be set up for success. And yet the GAL's credible offer of proof is that this child has been exposed to more details of this divorce than any child ever should. The video recording of the child explaining he overheard Mother's conversation with the Department of Family Services and others about this case corroborates that offer of proof. Mother's offer of proof included a representation

[501 P.3d 200

that the child is now suffering digestive issues and sleep disorders. The child is suffering. The shockwaves of this case are affecting the physical, mental, and emotional well-being of the child. Including the child in the details of the break up of his nuclear family is damaging to the child.

The estrangement and alienation efforts must stop and visitation must begin immediately. Asking a twelve-year-old boy to be deprived of his [f]ather for five or more months while the parents wage their war on each other in this case is entirely inappropriate.

¶6] The temporary visitation order required: (1) in-person visitation using a supervisor or facilitator not less than once per week; (2) visitation to graduate to unsupervised or overnight visitation at the recommendation of the child's counselor; and (3) telephone or video visitation to begin immediately with a schedule to be set by Ms. Rebecca Wright, the appointed GAL. Despite the district court's clear admonishments and required visitation, none of the steps occurred as directed by the court.

[¶7] Following the temporary visitation order, D. continued counseling with Dr. Heather Finkel which had begun in October 2019, Mother began counseling with Ms. Jennifer Kandolin, and Father continued counseling with Dr. Julie Elledge, who had been the couple's initial marriage counselor. Mother and Father stipulated to the appointment of a custody evaluator, Dr. Arnold Shienvold. Dr. Shienvold began his investigation in January 2020. On May 26, 2020, he issued a seventy-seven-page report. The report detailed his interviews with friends, teachers, the GAL, medical professionals, and mental health providers, as well as several meetings with Father, Mother, and D. Dr. Shienvold also enumerated the materials he had reviewed, including forty-six videos sent to Father by Mother of D. disparaging Father.⁴

[¶8] Dr. Shienvold's final recommendation was that D. be removed immediately from Mother's care and that Mother receive "intensive therapy around her problems with exaggerations and misperceptions of facts, her problems with dysregulation of emotions, her enmeshment with [D.], and her projection of rage associated with feelings of abandonment and emotional abuse by [Father] onto [D.]" Dr. Shienvold also recommended that Father and D. enter intensive reunification therapy and that D. receive more frequent counseling sessions with Dr. Finkel during the transition. He proposed several steps to accomplish a safe transition of D. to Father's custody. He proposed D. reside with a nonpartisan family for several weeks, but not more than three weeks, while D.'s counselor prepared the foundation for the custody change. He also suggested Father and D. attend an intensive reunification program outside the Jackson area for three to five days to "jumpstart" the process. Father and D. should then continue reunification treatment with a local therapist. Dr. Shienvold concluded:

It is recognized that this is an "extreme" recommendation. However, the factors in this situation dictate these extreme measures to insure that [D.] is to have a healthy, stable relationship with his father. It is believed these interventions will not hurt [Mother's] relationship with [D.] In fact, in the long run they may make it stronger, and will definitely make it healthier. As noted, [Mother] is a good parent when she is not caught-up in her anger and disappointment with [Father]. Hopefully, she will work to resolve those issues and become an equal participant in [D.]'s life.

After receiving Dr. Shienvold's report, Father amended his pleadings to request primary physical custody.

[¶9] A five-day custody trial began on July 20, 2020. Father testified and presented the testimony of the former family physician, the former assistant to Mother and Father who now worked for Father, friends of the family, Dr. Shienvold, and the visitation facilitator for Father's and D.'s visits, Ms. Cheyenne Syvertson. Mother also testified and presented the testimony of Dr. Finkel, family

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friends, the housekeeper who worked for the family and now worked for Mother, Mother's counselor, Ms. Kandolin, and Mr. Barry Goldstein who was called to rebut Dr. Shienvold's testimony. Over the objections of Father and the GAL, the district court conducted an in camera interview with D. where only the court reporter was present.

¶10] Following trial, the district court received post-trial filings, and custody related motions and notices, in August, September, October, November, and December 2020. On January 21, 2021, the GAL learned that Mother had demanded that any communication between the GAL and the family's coparenting therapist be recorded and submitted to the parties' attorneys. On January 26, the GAL learned Mother had imposed the same conditions on her communications with Dr. Finkel and, in addition, required the GAL to copy the attorneys on all emails between Dr. Finkel and the GAL. Mother's conditions were contrary to provisions in the order appointing the GAL.

[¶11] The GAL had received formal correspondence from D.'s counselor, Dr. Finkel, and the visitation facilitator, Ms. Syvertson, "indicating that the effectiveness of visitation and the relationship between Father and [D.] have deteriorated since trial and are becoming increasingly hopeless." In February 2021, Dr. Finkel delivered a letter to the GAL, addressed to the district court, "that she is no longer comfortable making custody recommendations to the Court because" after receiving Mother's conditions and consulting with an attorney in late January 2021, "she has been advised not to do so by her liability insurance company." Dr...