Morris v. Morris

• Decision Date: 02 November 2007
• Docket Number: No. S-07-0035.,S-07-0035.
• Citation: 2007 WY 174,170 P.3d 86
• Parties: Dusty Lee MORRIS, Appellant (Defendant), v. Michelle Lynn MORRIS, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

170 P.3d 86

2007 WY 174

Dusty Lee MORRIS, Appellant (Defendant), v. Michelle Lynn MORRIS, Appellee (Plaintiff).

No. S-07-0035.

Supreme Court of Wyoming.

November 2, 2007.

Representing Appellant: DaNece Day of Lubnau & Bailey, PC, Gillette, Wyoming.

Representing Appellee: Matthew R. Sorenson and Rebecca L. Falk of Daly Law Associates, LLC, Gillette, Wyoming.

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

KITE, Justice.

[¶ 1] Dusty Morris (Father) appeals from the district court's order denying his petition to modify the child custody provisions of the decree divorcing him from Michelle Morris (Mother). We conclude the district court did not abuse its discretion and, consequently, affirm.

ISSUE

[¶ 2] Father states the following issue on appeal:

Did the trial court abuse its discretion by finding that the changes that had occurred following the parties divorce were not material pursuant to W.S. § 20-2-204(c)?

Mother's statement of the issue is not significantly different.

FACTS

[¶ 3] Mother and Father divorced in the fall of 2003. They stipulated that Mother would have primary custody of the couple's two sons, subject to reasonable visitation by Father. In 2005, the younger son developed some behavioral issues, including displaying aggressive and violent tendencies. Mother and Father discussed the younger son's problems and decided that, following summer visitation in 2005, he would stay with Father. Mother filled out a pro se modification petition and signed it. She sent it to Father for him to complete and file with the district court. However, before the petition was filed, Mother changed her mind. Although she informed Father of her change of heart, he filed the petition (on behalf of Mother), accepted service of it, and filed an answer and counterclaim, seeking custody of both boys. Mother moved to dismiss the petition and objected to Father's counterclaim.

[¶ 4] The district court held an evidentiary hearing on Father's request to be awarded primary custody of both boys. After hearing from several witnesses on both sides, the district court issued a decision letter and ruled that, although circumstances had changed since the original decree was entered, those changes were not material and did not warrant a change in custody. The district court entered an order denying Father's petition, and he appealed.

STANDARD OF REVIEW

[¶ 5] On appeal, we "will not interfere with the trial court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion." Fergusson v. Fergusson, 2002 WY 66, ¶ 9, 45 P.3d 641, 644 (Wyo.2002).

`Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria.' Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo. 1986)). `In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did.' Matter of Adoption of BGH, 930 P.2d at 377-78 (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982)). In the context of alleged abuse of discretion, the assessment of the circumstances in the case

is tantamount to an evaluation of whether the evidence is sufficient to support the decision of the district court. In review of the evidence, we accept the successful party's submissions, granting them every favorable inference fairly to be drawn and leaving out of consideration conflicting evidence presented by the unsuccessful party.

[In re: Adoption of TLC, TOC v. TND, 2002 WY 76, ¶ 9, 46 P.3d 863, 867-68 (Wyo. 2002)] (quoting Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995)).

CJ v. SA, 2006 WY 49, ¶ 5, 132 P.3d 196, 199 (Wyo.2006).

DISCUSSION

[¶ 6] The district court's authority to modify the custody provisions of a divorce decree is found in Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2007). That provision states, in relevant part:

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). 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.

Under the statute, the party seeking modification of the child custody provisions of a decree has the burden of establishing that a material change in circumstances which affects the children's welfare has occurred since the decree was entered, the change justifies modification of the decree and modification would be in the children's best interests. Jackson v. Jackson, 2004 WY 99, ¶ 8, 96 P.3d 21, 24 (Wyo.2004); Fergusson, ¶ 9, 45 P.3d at 644.

[¶ 7] Father claims the district court abused its discretion by ruling the changes of circumstances which occurred after the divorce were not material and did not justify a change of custody. In its decision letter, the district court explained:

The court finds that although there have been change[s] of circumstances since the most recent order in this case, the changes do not warrant modification of the decree as to child custody and visitation.

In determining whether or not a material change of circumstances has occurred since the original decree, we must evaluate "the current circumstances of the parties in relation to their circumstances at the time the prior custody order was entered." CLH v. MMJ, 2006 WY 28, ¶ 10, 129 P.3d 874, 877 (Wyo.2006). "A district court's finding concerning a material change in circumstances is principally a factual determination to which we accord great deference." Id., ¶ 11, 129 P.3d at 877, citing Yates v. Yates, 702 P.2d 1252, 1256-57 (Wyo.1985). Our task is simply to determine whether, examining the record in the light most favorable to the successful party, the district court could have reasonably concluded as it did. Id.

[¶ 8] Father claims a material change of circumstances occurred because Mother failed to comply with the "Mandatory Provisions" of the divorce decree. In general, the provisions required cooperation between the parties and specifically required the parties to inform one another of significant events in the children's lives. Father points to evidence that Mother did not inform him in a timely manner of some moves, the children's change of school, her telephone number, the elder son's allergies and how to treat them, the elder son's counseling, certain illnesses and accidents or the fact that she had taken the children to the dentist.

[¶ 9] After examining the entire record, we note that Mother did, at times, fail to communicate with Father as required by the decree. While we do not condone her failures, significant evidence was presented that she informed Father of many events affecting the children, including illnesses and injuries. She also discussed issues involving the children with Father, including the elder son's need for counseling (although she did not inform him when she had actually placed him in counseling) and the younger son's behavioral problems. In addition, the boys told Father about significant events during weekly telephone calls, which it is fair to say Mother allowed and facilitated. While this mode of communication is not ideal, Father was still made aware of those matters and, presumably, could have contacted Mother if he needed or wanted further information.

[¶ 10] The district court did not believe Mother's failures to communicate constituted a material change of circumstances and, instead, faulted both parties for the break down in communication. The court included the following admonition in its decision letter:

The court is concerned about the parties' lack of communication. In addition, much of the communication attempted is rather poor. Suffice it to say that both parties need substantial work in this area. Should this not change, the parties are likely to be back in court on other requests to change custody. * * * * This is also a place for the court to clearly indicate that the lack of communication and poor communication is not just an issue caused by Mother.

The district court's appraisal is a reasonable assessment of the evidence in this case; consequently, we conclude the district court did not abuse its discretion by refusing to find that Mother's communication failures constituted a material change of circumstances.

[¶ 11] Father also claims Mother's violation of the visitation provisions of the decree amounted to a material change of circumstances. Under the divorce decree, Father had the right to weekly visitation from Tuesday nights through Friday mornings, summer visitation, and certain holidays. This schedule, obviously, assumed the parties would live in close proximity to one another. Father conceded that, because of the distance between the parties' residences, weekly and holiday visits were not practicable.

[¶ 12] Nevertheless, Father consistently sought to exercise his right to summer visitation. In 2004, Mother refused to allow Father to take the boys when he showed up to collect them for summer visitation. In a prior proceeding, the court found her in contempt of court for those actions. Immediately after the trial in this case, there was apparently another disagreement over Father's right to visit with the children. In its decision letter, the district court stated the following about the 2004 and post-trial incidents:

Mother was at fault in denying Father's visitation during the summer of 2004. This was determined . . . in the contempt hearing on October 14, 2004. Since that situation, Mother has not denied Father any visitation. Post hearing, Father filed an...