Rogers v. Rogers, 97-142

• Decision Date: 08 February 1999
• Docket Number: No. 97-142,97-142
• Citation: 973 P.2d 1118
• Parties: Valinda K. ROGERS, Appellant (Defendant), v. James D. ROGERS, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1118

973 P.2d 1118

Valinda K. ROGERS, Appellant (Defendant), v. James D. ROGERS, Appellee (Plaintiff).

No. 97-142.

Supreme Court of Wyoming.

Feb. 8, 1999.

Valinda K. Rogers, Pro Se., for Appellant.

Paul Thomas Glause of Paul Thomas Glause, P.C., Rock Springs, for Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, ^* JJ.

THOMAS, Justice.

The critical issues in this case are captured in the claims by Valinda K. Rogers (the mother) that the trial court, in connection with an Order Modifying Decree of Divorce, abused the discretion vested in it to adjust custody and visitation of two minor children. The mother also claims that the trial court committed reversible error as a matter of law with respect to changing the original divorce decree; failing to rule on a motion for a contempt order addressed to James D. Rogers (the father); and vacating the appointment of the guardian ad litem. While the Court would be justified in dismissing this appeal for failure of the mother to comply with the Wyoming Rules of Appellate Procedure and the failure to cite pertinent authority or present a cogent argument, we choose to decide the case on the merits since the best interests of the children are at stake. Our examination of the record before the Court persuades us that the trial court did not commit an abuse of discretion in any of the respects claimed by the mother. Further, we conclude that no other reversible error is supported by this record. The Order Modifying Decree of Divorce is affirmed.

In the Brief of Appellant, filed by the mother pro se, the stated issues are:

I.

The Trial Court abused its discretion in rendering a decision that effectively separates siblings.

II.

The Trial Court abused its discretion in rendering a decision that ignores repeated violations of its own previous orders, both of the Initial Decree and the Temporary Custody Order, including its mandate "to deter abductions and removals".

III.

The Trial Court abused its discretion by failing to order and to enforce visitation in specific detail to promote compliance.

IV.

The Trial Court abused its discretion in assigning reasonable and proper weight to matters of great importance with regard to the fundamental rights, best interests, and the whole welfare of the minor children.

V.

The Trial Court committed reversible error in Overturning the Original Decree; as priority for custody is given to the parent who has custody by court order.

VI.

The Trial Court committed reversible error in failing to rule or comment on the contempt motion brought by the Mother at the Final Hearing.

VII.

[The] Court committed reversible error in vacating the appointment of Guardian-Ad-Litem. [The] Court's responsibility was to provide the best [ ] option for representing [the] interests [of] the children, not to accommodate parents or the convenience of the court.

No brief was filed on behalf of the father, as appellee.

The mother and the father were granted a divorce by the trial court on July 9, 1993. On June 21, 1993, they had entered into a Stipulation and Agreement pursuant to which they shared joint custody of their two minor children, with the Stipulation and Agreement providing that each of them would have physical custody of the children in nine-month intervals. The record discloses that the father had conceived a child with a woman in South Dakota during the existence of the parties' marriage. After the mother and the father separated, the mother had conceived a child with her live-in boyfriend.

On May 10, 1994, the mother filed a Petition For Relief From Final Judgment asserting that the Stipulation and Agreement failed to comply with the statutory presumptive child support guidelines, and she sought to relitigate the issues of child custody and child support. The trial court granted the father's Motion to Dismiss on August 12, 1994, but in so doing it advised it would accord no deference to the child support provisions set forth in the divorce decree.

The proceeding resulting in this appeal was commenced by the mother, who filed a Petition to Modify the Decree of Divorce on June 2, 1995, in another attempt to relitigate the issue of child support. On August 16, 1995, an Answer to Petition to Modify Decree of Divorce and Counter Petition for Modification of Decree of Divorce was filed on behalf of the father, who asserted that a substantial change in circumstances had occurred, which warranted awarding the father and the mother joint custody of the children, with the father being identified as the primary custodial parent. On the same day, the father also filed a Motion For Temporary Custody of the two minor children of the parties pending the resolution by the trial court of the mother's petition and the father's counter petition. The mother responded with a Motion for Order to Show Cause, seeking to require the father to show cause why he should not be held in contempt for his failure to abide by the divorce decree. On September 28, 1995, the trial court granted the father's motion for temporary custody, and denied the mother's motion to hold the father in contempt for violation of the divorce decree.

On February 3, 1997, at the conclusion of a hearing, the trial court entered its Order Modifying Decree of Divorce. The trial court found that a substantial change in circumstances had occurred subsequent to the divorce decree. The trial court ruled that the changed circumstances warranted awarding joint custody of the parties' minor children to the father and the mother and that the father should be awarded primary custody of the children subject to the mother's right of visitation. This appeal is taken by the mother from the Order Modifying Decree of Divorce.

We frequently have held that we do not consider an appeal which lacks cogent argument or the citation of pertinent authority to support the claims of error. State ex rel. Reece v. Wyoming State Bd. of Outfitters and Professional Guides, 931 P.2d 958, 959 (Wyo.1997); Collier v. State, 920 P.2d 265, 267 (Wyo.1996); Lincoln v. Wackenhut Corp., 867 P.2d 701, 705 (Wyo.1994). While our rule does make allowances for pro se litigants, they are not excused from compliance. Boyd v. Nation, 909 P.2d 323, 326 (Wyo.1996) (quoting Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 772 (Wyo.1993)); Hamburg v. Heilbrun, 891 P.2d 85, 87 (Wyo.1995). The Brief of Appellant, filed in this Court, would justify the invocation of the dismissal rule, but we are concerned that one of the issues presented for review is whether the trial court adequately considered the best interests of the two minor children of the parties. We, therefore, afford the mother's presentation the benefit of the doubt and conclude that her pro se argument and citation of authority is sufficient to permit us to resolve the case on its merits.

The mother asserts that the trial court committed an abuse of its discretion in modifying the custody agreement of the parties so as to award joint custody of the children to the parents, with primary custody being granted to the father. She contends that this modification had the effect of separating the two children of the parties from their half sibling, the child the mother conceived with her live-in boyfriend. We acknowledge that separating siblings from each other through custody awards to different parents is not a preferred resolution, but the effect of the separation of siblings is simply one of several factors that courts consider in determining the best interests of the child or children. Dowdy v. Dowdy, 864 P.2d 439, 440 (Wyo.1993). In this case, the mother entered into a stipulation and agreement with the father, pursuant to which the parties would share joint custody of their two minor children, with each party having physical custody in nine-month intervals. The Stipulation and Agreement was entered into despite the fact that the mother had conceived a half sibling in October of 1992. The mother was within approximately a month of a normal delivery date at the time of the Stipulation and Agreement. Yet, the mother's own agreement with the father effectively separated the two children from their half sibling for nine months at a time. Under the circumstances, we perceive no abuse of discretion by the trial court in modifying the joint custody agreement so as to provide that the father should be awarded primary custody of the parties' children.

Next, the mother asserts vigorously that the trial court committed an abuse of the discretion committed to it when it entered a decision that ignored repeated violations of the original divorce decree by the father. The crux of the mother's argument is that the trial court abused the discretion vested in it when it denied her motion to hold the father in contempt for failing to return the two children to her pending her attempts to relitigate the original child support agreement. A determination by the trial court of matters such as this, raised in a post-divorce contempt proceeding, also rests within the sound exercise of that court's discretion. Crites v. Alston, 837 P.2d 1061, 1066 (Wyo.1992); Scaling v. Scaling, 805 P.2d 866, 869 (Wyo.1991); Secrest v. Secrest, 781 P.2d 1339, 1341 (Wyo.1989). There is no dispute about the fact that, while the mother's effort to relitigate child support was pending and prior to the order granting temporary custody to the father, the father did violate the divorce decree by not providing physical custody of the children to the mother. Punitive discipline of an offending parent in such circumstances is not appropriate, however, if it is in contravention of what may be in the best interests of the child. Ready v. Ready, 906 P.2d 382, 386 (Wyo.1995); Marquiss v. Marquiss, 837 P.2d 25, 45 (Wyo.1992). In light of the ultimate conclusion by the trial court that a substantial change in circumstances had occurred, whereby it was in the best interests of the children for the father to...