Sears v. Sears

• Decision Date: 02 February 2021
• Docket Number: S-20-0138
• Citation: 479 P.3d 767
• Parties: Kelsey N. SEARS, Appellant (Defendant), v. Timothy L. SEARS, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

479 P.3d 767

Kelsey N. SEARS, Appellant (Defendant),

v.Timothy L. SEARS, Appellee (Plaintiff).

S-20-0138

Supreme Court of Wyoming.

February 2, 2021

Representing Appellant: Bethia D. Kalenak, Bonner Law Firm P.C., Cody, Wyoming.

Representing Appellee: Christopher J. King, APEX Legal, P.C., Worland, Wyoming.

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

KAUTZ, Justice.

[¶1] Kelsey N. Sears (Mother) appeals from portions of her divorce decree. She argues the district court abused its discretion by establishing joint custody of the children and by failing to require Timothy L. Sears (Father) to pay her retroactive child support, temporary alimony, and attorney fees and costs. Finding no abuse of discretion, we affirm. We grant Father's request for attorney fees and costs under Rule 10.05 of the Wyoming Rules of Appellate Procedure (W.R.A.P.).

ISSUES

[¶2] The determinative issues are:

1. Did the district court abuse its discretion by awarding the parties joint custody of the children?

2. id the district court abuse its discretion by failing to require Father to pay Mother retroactive child support?

3. Did the district court abuse its discretion by failing to require Father to pay Mother temporary alimony and her attorney fees and costs under Wyo. Stat. Ann. § 20-2-111 (LexisNexis 2019) ?

4. Is Father entitled to his attorney fees and costs under W.R.A.P. 10.05 ?

FACTS

[¶3] Father and Mother married on August 10, 2013. They have two children, LLS and TLS, who were born in 2012 and 2013, respectively. LLS has medical conditions requiring daily treatments and medications and weekly doctor appointments, some of which occur out-of-state.

[¶4] Father filed for divorce from Mother on February 16, 2017. In the complaint, he accused Mother of being an "undiagnosed and untreated alcoholic" who "consume[s] a 30 pack of beer every other day, on her own." Contemporaneous with the divorce complaint, he filed an ex parte motion seeking temporary sole custody of the children and requesting Mother have only supervised visitation with the children and undergo drug and alcohol testing prior to any visitation. The district court granted Father's ex parte motion.

[¶5] Several days later, Mother answered the divorce complaint and filed a motion to vacate the court's order granting Father temporary custody of the children. She denied any alcohol problem and accused Father of being abusive and never properly caring for the children. She sought dissolution of the marriage, sole custody of the children, reasonable visitation for Father, and an order requiring Father to pay her child support per the statutory guidelines and provide medical insurance for the children. On March 13, 2017, the district court entered an order modifying its temporary custody and visitation decision. Because the parties did not designate this order as part of the appellate record, it is unclear what modifications the district court made.

[¶6] On March 16, 2017, Father and Mother, accompanied by their counsel, met and agreed to joint legal and physical custody of the children on an alternating week basis. While no formal order was entered modifying the order which granted Father temporary custody, the parties began performing according to their joint custody agreement on March 20, 2017.

[¶7] About a month later, on April 28, 2017, Mother filed a motion for temporary sole custody of the children and sought child support per the statutory guidelines. She alleged that since the parties began following their agreed joint custody arrangement, Father had failed to administer LLS's medications per the doctor's instructions, had missed LLS's medical appointments, and had asked Mother to take LLS to his doctor appointments. She also claimed that three days earlier, Father, with the children in the vehicle, had driven his car in reverse with the car door open and hit her with the door.

[¶8] On May 1, 2017, the district court entered an order based on the parties’ March 16 agreement for shared custody. It vacated Father's temporary custody order and directed the parties to comply with the shared custody they agreed to. It ordered the parent in custody of LLS at the time of any doctor appointment to take LLS to the appointment. The court declined to order child support, and did not address any other portions of Mother's April 28 motion.

[¶9] In August 2017, Mother supplemented her April 28, 2017 motion. She informed the district court she had obtained a protection order against Father based on the car door incident and attached a copy of the order. She requested Father be ordered to pay her $386.63 per month in child support, retroactive to April 28, 2017, and half of LLS's incidental medical costs, including the costs of travel to out-of-state medical appointments.

[¶10] After holding a hearing on Mother's pending motion, the district court denied Mother's request for temporary sole custody of the children, finding it was in the children's best interests to continue with the parties’ joint custody agreement until trial. Due to the protection order, however, the court directed the parties to exchange the children through their daycare facility. Because Mother testified at the hearing Father was not following the doctor's instructions in administering treatment and medication to LLS and Father claimed Mother had not responded to his request for the doctor's name to obtain such instructions, the court ordered the parties to provide each other with any doctor's instructions and to follow them. If either party believed the other was not properly administering medication or treatment to LLS, the court directed the parties to communicate those concerns through their attorneys. If the concerns went unaddressed, the parties were to file the appropriate motion with the court. The court also ordered the parties to split the costs of any out-of-state doctor's appointments. The court again declined to grant child support because the parties were sharing custody and splitting the children's uncovered medical expenses, Father was providing medical insurance for the children and paying Mother's car insurance and cell phone bills, Father had not provided a confidential financial affidavit, and Mother had not updated her financial affidavit.

[¶11] Several months later, Father filed a motion for temporary sole custody of the children claiming Mother was not providing for the educational needs of one of the children (presumably LLS), which caused the child severe educational problems and exacerbated his medical condition. Mother countered with her own motion for temporary sole custody, again alleging Father was not following medical advice concerning LLS, continued to refuse to be involved in LLS's medical appointments, was not paying his share of the travel costs to LLS's medical appointments, had failed to keep Mother's car insurance and cell phone accounts current, and was not effectively communicating with her. She maintained the joint custody arrangement was unworkable and not in the children's best interests. She again sought child support. Mother also filed a motion under § 20-2-111 requesting Father pay her temporary alimony during the pendency of the divorce proceedings and her attorney fees and costs associated with defending the divorce. Father objected to Mother's motion, claiming he could not afford her requests. The motions were not heard by the time of trial.

[¶12] The court held a bench trial on the divorce complaint on October 21, 2019. Following trial, the district court issued a decision letter granting the parties a divorce, awarding them joint custody of the children per their agreement, and requiring Father to pay Mother $333 per month in child support beginning December 15, 2019. It ordered Father to continue to provide medical insurance for the children and the parties to split all uncovered medical expenses, including travel expenses for the children's out-of-state medical appointments. The court divided the parties’ debt and property and ordered each party to pay his or her own attorney fees and costs. The decision letter was incorporated into a February 7, 2020, divorce decree. Mother appealed from the divorce decree.

STANDARD OF REVIEW

[¶13] We review the district court's custody, child support, alimony, and attorney fees decisions for an abuse of discretion. Johnson v. Johnson , 2020 WY 18, ¶ 10, 458 P.3d 27, 32 (Wyo. 2020) (citations omitted); Kamm v. Kamm , 2016 WY 8, ¶ 3, 365 P.3d 779, 780-81 (Wyo. 2016). See also, Roberts v. Roberts , 816 P.2d 1293, 1298 (Wyo. 1991) ("[A] court has broad discretion in deciding whether to award attorney's fees pursuant to [ § 20-2-111 ]."). " ‘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 and without doing so arbitrarily or capriciously.’ " Johnson v. Clifford , 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 2018) (quoting Bishop v. Bishop , 2017 WY 130, ¶ 9, 404 P.3d 1170, 1173 (Wyo. 2017) ) (other citation omitted). "A district court does not abuse its discretion if it could reasonably conclude as it did." Id . (citation omitted). See also, Verheydt v. Verheydt , 2013 WY 25, ¶ 19, 295 P.3d 1245, 1250 (Wyo. 2013) ("In determining whether an abuse of discretion occurred, our core inquiry is the reasonableness of the district court's decision." (citing Hanson v. Belveal , 2012 WY 98, ¶ 14, 280 P.3d 1186, 1192 (Wyo. 2012) )).

DISCUSSION

1. Custody

[¶14] In awarding custody and visitation, the best interests of the children are "paramount." Johnson , ¶ 12, 458 P.3d at 32 (quoting Arnott v. Arnott , 2012 WY 167, ¶ 31, 293 P.3d 440, 455 (Wyo. 2012), and Stonham v. Widiastuti , 2003 WY 157, ¶ 17 n.8, 79 P.3d 1188, 1194 n.8 (Wyo. 2003) ). See also, Martin v. Hart , 2018 WY 123, ¶ 20, 429 P.3d 56, 63 (Wyo. 2018) ("It has been our consistent principle that in custody matters, the welfare and...