Nation v. Nation

Citation715 P.2d 198
Decision Date05 March 1986
Docket NumberNo. 85-173,85-173
PartiesSusan NATION, n/k/a Susan Chabak, Appellant (Plaintiff), v. David NATION, Appellee (Defendant).
CourtUnited States State Supreme Court of Wyoming

Robert T. Moxley, Wheatland, for appellant.

Richard H. Peek, Casper, for appellee.


URBIGKIT, Justice.

By this appeal we review Rule 56(c), W.R.C.P., as relating to the date of filing responsive affidavits to resist a motion for summary judgment in a child custody and visitation controversy arising subsequent to entry of the original divorce decree. The trial court held that affidavits not filed on the day prior to hearing would not be considered by the court even though earlier served. Additionally involved is newly claimed grandparent visitation rights granted by summary judgment upon petition in the divorce proceeding without evidentiary hearing. We reverse.

The parties to this litigation, David Nation and Susan Nation Chabak, were divorced upon default status in 1979, by waiver of service by David Nation, and then, in contemporary terms, after divorced, the parties really started to fight, the father's visitation with the two children, boys aged ten and one half and twelve, being a primary issue.

The course of the litigation has proceeded through a petition to terminate parental rights as a separate action, filed by Susan Chabak on December 4, 1981, resulting in denial by the trial court and affirmance by this court in March, 1983, Matter of Parental Rights of SCN and NAN, Wyo., 659 P.2d 568, motion for order to show cause by David Nation, filed March 28, 1983, and now this third post-divorce proceeding.

This new activity was initiated by petition filed in the divorce docket on March 21, 1985. Petitioners named in that pleading are David Nation, the father, and Marilyn Nation and Doyle Nation, as paternal grandparents, who, by the verified petition, seek to establish grandparent visitation rights. No motion by the grandparents to intervene in the divorce case was made or considered by the court. An answer was filed on April 15 and included a cross petition to which a response was seasonably filed on April 19, 1985. 1

In accord with the apparent practice in Natrona County, petitioners submitted a request for setting for a motion for summary judgment to the district court, dated April 16, 1985, and filed April 18, 1985, with a notice of setting then entered on April 18, 1985 to schedule the case for that hearing on May 30, 1985, or 42 days later.

To complete the pleading scenario, Susan Chabak served interrogatories April 29. If ever answered, the answers are not presently part of the record.

The motion for summary judgment was then filed by petitioners on May 16, or 28 days after the entry of the setting order. Affidavits in detail were attached as signed and dated April 22 and 23, or about 23 days before the motion and affidavits were actually filed.

Since the 16th of May was on a Thursday, it would reasonably be expected that counsel for Susan Chabak would receive the motion and affidavits on Monday, May 20, or exactly ten days before the earlier scheduled hearing date. This was apparently what happened. Susan Chabak, by her attorney, filed on May 24 a traverse dated May 23, which, with affidavits then unsigned, were mailed to petitioners' counsel, and included affidavits of the children relating to the visitation questions. Receipt of the unsigned affidavits by counsel is not in dispute. Additionally, Susan Chabak certified under oath by separate affidavit that she had mailed executed copies of the affidavits of herself, her two children and the notary public, Lester Hadrick, to counsel for petitioner on May 24, 1985. A traverse to the statement of serving is not included in the record, and the subject is not directly addressed by brief of appellee. 2

Counsel for Susan Chabak, officing in Wheatland (located about 100 miles from Casper, where the hearing was held), in concern about mail service, carried the original affidavits to court with him for the scheduled hearing for personal presentation to the trial judge at the hearing.

The court refused, as then offered, to consider the affidavits on the basis that they had not been filed on the prior day, denied a motion for a continuance to file affidavits, and proceeded to determine the case on the resulting uncontroverted affidavits of petitioners. The tendered responsive affidavits were file-stamped by the clerk's office on the next day, since the court had the file for hearing purposes on May 30. 3

The custody-visitation 4 order then was entered to generally change the prior amended order by granting 30 days summer visitation to the grandparents in Oklahoma, in addition to the four weeks July visitation also in Oklahoma, earlier provided to the father by the first amendment to the decree. The trial court denied the cross-petition relief requested by the mother, and also the original prayer in behalf of the father which might have been construed to be a request for additional visitation, since it asked for a joint, all-summer visitation for the father and grandparents.

A casual examination of all affidavits reveals antipathy, hostility and anger, as well as concern for the welfare of the children sufficient to clearly raise issues of fact. If the responsive affidavits are considered, there is no question but that summary judgment should not have been granted. See the excellent review and analysis of summary judgment by Justice Brown in Colorado National Bank v. Miles, Wyo., 711 P.2d 390 (1985). Garner v. Hickman, Wyo., 709 P.2d 407 (1985). See also an extended and detailed analysis, Schwarzer, Summary Judgment under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465.

Issues Involved

The issues raised in the brief by Susan Chabak include the service versus filing of responsive affidavits under Rule 56(c), W.R.C.P., and a substantive issue as to the propriety of the entry of summary judgment in this case. David Nation views the case in the context that the affidavits were not properly filed in order to be considered by the court and in absence thereof no factual issue existed militating against entry of the summary judgment to award grandparent visitation in Oklahoma of one month each summer.

We view those issues raised at this stage to be definable as the following:

(1) Propriety of the trial court's rejection of affidavits that had been served but not filed on the day prior to the hearing under the purview of Rule 56(c).

(2) Propriety of the entry of the order by summary judgment for grandparental visitation in the context of the record and evidence, and the sufficiency of the order itself as compliance with the grandparent visitation statute, § 20-2-113, W.S.1977, 1985 Cum.Supp.

(3) Jurisdictional status of the present proceeding in utilization of the divorce action file to issue the grandparent visitation order.

The initial issue requires this court to determine whether the affidavits prepared in support of the position of the mother should have been considered to be properly before the trial court and, if considered, then sufficient to raise issues of fact requiring trial disposition rather than the default-status summary judgment.

Before addressing that dispositive issue, another disturbing question is to be seen in the record before us. The litigative justification for a pre-assigned hearing date and then filing the motion for summary judgment on the very last pre-ten-day notice time is not discernable. It has been said many times that procedure under the present rules should not be trial by ambush. Whitaker v. Coleman, 115 F.2d 305 (5th Cir.1940). Suffice it to suggest that if in reality the ten-day notice time is unfairly used, then the discretional capacity of the trial court either under Rule 56 or the general law of continuances, is severely confined. If this practice is to be followed in general, then this court may be faced with rule amendment as preferable to individual case review by appeal. We invite attention to Art. 5, § 2 of the Wyoming Constitution and § 5-2-118, W.S.1977. 5

In any event, this court would observe that, whenever this type of practice is utilized, the trial court should liberally vacate the setting upon motion of the opposing party to permit that party to meet the facts presented in the affidavits, and especially so in a major case or where both counsel and his client are out of town or out of state resulting in difficulty in communicating, preparing and serving responses.


Filing Versus Service of Responsive Affidavits Under Rule 56(c)

Rule 56(c), W.R.C.P., (identical to the federal rule), provides:

"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. * * * "

The traverse by the mother to the motion for summary judgment stated:

"1. THAT as more fully set forth in the affidavits filed by the Plaintiff Susan Chabak in opposition to the Defendant's Motion for Summary Judgment, there exist material issues of fact as to all matters affecting the propriety of the Court granting the relief requested in the Defendant's Motion for Grandparent's Visitation Rights.

"2. THAT the Summary Judgment procedure is not intended to be a substitute for trial, and inter alia, the Defendant's motion would require that the Court find, after an adversary proceeding, that visitation, as requested in the said motion, is in the best interests of the parties' minor children.

"3. THAT the Defendant's deadline for responding to discovery motions made by the Plaintiff is within two or three days of the schedule motion hearing on the Defendant's Summary Judgment Motion, and counsel would not be satisfied that this discovery would be complete as of the 30th day of May, 1985."

The trial-process problem had been appropriately raised by the mother,...

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