Rush v. Golkowski

• Decision Date: 12 February 2021
• Docket Number: S-20-0104
• Citation: 480 P.3d 1174
• Parties: Leah Ruth RUSH, Appellant (Defendant), v. Joseph Robert GOLKOWSKI, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

480 P.3d 1174

Leah Ruth RUSH, Appellant (Defendant),

v.Joseph Robert GOLKOWSKI, Appellee (Plaintiff).

S-20-0104

Supreme Court of Wyoming.

February 12, 2021

Representing Appellant: Amanda K. Roberts of Lonabaugh & Riggs, LLP, Sheridan, Wyoming

Representing Appellee: Jennifer A. Reece of Reece Law, LLP, Casper, Wyoming

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

DAVIS, Chief Justice.

[¶1] Joseph Golkowski ("Father") petitioned for an order modifying custody and support following Leah Rush's ("Mother's") relocation with the parties’ minor children. Mother failed to answer or otherwise respond, and upon Father's request, the clerk of court entered default. Three days after the district court set a default hearing on the petition, Mother moved to set aside the entry of default and to vacate the hearing. The court denied the motion, held the hearing, and modified the decree of divorce to award Father primary custody of the children.

[¶2] On appeal, Mother challenges the denial of her request to set aside the entry of default and for a continuance of the hearing. She also challenges the district court's decision to limit her participation in the default hearing. Finally, she challenges the court's findings in support of its custody modification. We affirm.

ISSUE

[¶3] Mother presents three issues on appeal, which she states as follows:

1) Did the District Court err when it denied Mother's motion to set aside entry of default and vacate default hearing?

2) Did the District Court err when it precluded Mother from presenting affirmative evidence during the default hearing?

3) Did the District Court err when it modified custody because reasonable visitation was still available to Father?

FACTS

[¶4] After a trial on the merits, Father and Mother were divorced on February 13, 2019. They had two children who were eight and nine at the time of the divorce. Following trial, the district court found that the best interests of the children would be served by an award of primary physical custody to Mother, with Father being awarded reasonable visitation.

[¶5] At the time the decree of divorce was entered, both Mother and Father resided in Casper, Wyoming, and there was no indication that either party intended to move. Accordingly, Father was awarded visitation every other weekend from 6:00 p.m. on Thursday until the following Monday at 8:00 a.m.

[¶6] Approximately five months after the decree was entered, on July 16, 2019, Mother notified Father by e-mail that she was moving to Billings, Montana with the minor children to take advantage of a job opportunity. Due to her move with the children, Father's visitation was diminished because he had to travel, at his own expense, from Casper to Billings for visits, and he could no longer participate in the children's extracurricular activities, including coaching their football team.

[¶7] On November 14, 2019, Father filed a petition to modify custody, visitation, and support, which requested that he be awarded primary physical custody with alternating weekend and holiday visitation to Mother. He claimed that Mother had moved three times and "created an unstable home environment for the minor children." He also alleged that although she informed him that she moved to Billings, Montana for a job opportunity, she had since quit that job and was contemplating removing the minor children from school and homeschooling them.

[¶8] Mother was personally served with the petition at her home in Billings. She was required to answer or otherwise plead on or before December 26, 2019. She failed to do so, and on December 27, 2019, Father requested entry of default, which was entered by the clerk of court that same day. Nearly a month later, on January 22, 2020, the court set a default hearing for February 27, 2020, and notified Mother by mailing a copy of the setting to her address in Billings.

[¶9] Over a month later, on February 24, 2020, Mother moved to set aside the default and to vacate the default hearing that was scheduled to take place in just three days. She asserted that she had been unable to obtain representation, which prevented her from responding in a timely manner. She also reported that she and counsel were "currently finalizing and having notarized [her] response to [Father's] Petition." Mother's counsel did not attach a copy of the response, but stated that it was being completed by mail, and that it would "be delivered to the [c]ourt shortly."

[¶10] After hearing offers of proof and argument at the February 27, 2020 hearing, the district court found that Mother had failed to show good cause to set aside the entry of default, and it noted that she still had not filed a response or answer to the petition to modify. Therefore, it denied her request to set aside the default and proceeded with the default hearing.

[¶11] At the default hearing only Father testified, and the court did not allow Mother to present evidence or to testify. Mother's counsel was permitted to cross-examine Father, to make objections, and to submit a written closing argument. The district court also allowed Mother to submit a confidential financial affidavit.

[¶12] After counsel for both parties filed written closing arguments, the district court, "on a default basis, and based on the Father's uncontroverted testimony at the hearing," found that he had met his burden of proving a material change in circumstances that warranted a modification in custody and support. The court weighed the statutory factors for determining the children's best interests, as well as factors related to relocation, and it found that their best interests would be better served by awarding the care, custody, and control of the children to Father with reasonable visitation for Mother.

[¶13] The court noted that it originally awarded physical custody to Mother with more liberal visitation to Father because Mother was the primary caregiver. However, it found that Mother's relocation significantly curtailed Father's visitation and distanced the children from extended family who had close relationships with them. Consequently, it found "that the best interest of the children will be served by an award of care, custody, and control to the Father and the children shall live with him upon completing the currently scheduled school year on May 29, 2020 in Billings, Montana." (Emphasis omitted.) The court awarded Mother "alternating weekend visitation with the minor children from Friday at 5:00 p.m. to Sunday at 5:00 p.m.," subject to a holiday and summer visitation schedule set forth in the order. The court further ordered that the parties shall meet half-way to exchange the children, with each party to be responsible for their own expense in transporting the children to and from the visitation exchange point.

[¶14] Mother timely appealed the district court's denial of her request to set aside the entry of default and the modification of custody.

DISCUSSION

[¶15] Mother claims that the district court erred when it denied her motion to set aside the entry of default and proceeded to an evidentiary hearing on the matter. She further contends that the court abused its discretion and violated her due process rights when it restricted her from testifying and presenting evidence on the best interests of the children during the default proceeding. She also argues that the court failed to properly consider the factors derivative of relocation when it ordered a modification of custody.

[¶16] We will address each of these claims in turn, but at the outset, we note that our review of the district court's order is constrained because Mother did not provide us with a transcript of the proceedings below, nor obtain a statement of the evidence as permitted by W.R.A.P. 2.05 and 3.03. We have cautioned that "[t]he appellant bears the responsibility of bringing forth a sufficient record for the Court's review. When [s]he does not, we assume that the district court's orders and rulings were correct, and summarily affirm the district court's decision." Rammell v. Mountainaire Animal Clinic, P.C. , 2019 WY 53, ¶ 30, 442 P.3d 41, 49 (Wyo. 2019) (quoting Rigdon v. Rigdon , 2018 WY 78, ¶ 15, 421 P.3d 1069, 1074 (Wyo. 2018) ). To the extent that we can assess the district court's exercise of discretion based on the limited record before us, we shall do so. Otherwise, we will summarily affirm.

I. Denial of Mother's Motion to Set Aside Entry of Default

[¶17] We review decisions resolving motions for setting aside the entry of default or default judgment for an abuse of discretion. Pilcher v. Elliott , 2020 WY 130, ¶ 9, 473 P.3d 1251, 1253 (Wyo. 2020) ; Matter of EMM , 2018 WY 36, ¶ 8, 414 P.3d 1157, 1159 (Wyo. 2018). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances ...." Brown v. Jerding , 2020 WY 123, ¶ 11, 472 P.3d 1038, 1041 (Wyo. 2020). "In determining whether the court abused its discretion, we consider whether it could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Matter of LDB , 2019 WY 127, ¶ 11, 454 P.3d 908, 912 (Wyo. 2019) (internal quotation marks omitted).

[¶18] The right to have an entry of default set aside is not absolute. Booth v. Magee Carpet Co. , 548 P.2d 1252, 1255 (Wyo. 1976) ; see also U.S. Aviation, Inc. v. Wyoming Avionics, Inc. , 664 P.2d 121, 126 (Wyo. 1983). Instead, Rule 55(c) allows an entry of default to be set aside "for good cause." W.R.C.P. 55(c) ; see also Vanasse v. Ramsay , 847 P.2d 993, 999 (Wyo. 1993). A defaulting party bears the burden of showing good cause based on one of the justifications for relief under Rule 60(b), which may include a showing of "(1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason that justifies relief" from the operation of the judgment. W.R.C.P. 60(b) ; see also EMM , ¶¶ 8, 10, 414...