Selvey v. Selvey

• Decision Date: 16 December 2004
• Docket Number: No. 03-237,03-237
• Citation: 102 P.3d 210,2004 WY 166
• Parties: ROBERT FREDERICK SELVEY, Appellant (Defendant), v. SHIRLEY JEAN SELVEY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2004 WY 166

102 P.3d 210

ROBERT FREDERICK SELVEY, Appellant (Defendant), v. SHIRLEY JEAN SELVEY, Appellee (Plaintiff).

No. 03-237

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

December 16, 2004

Representing Appellant: Donald E. Miller of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming.

Representing Appellee: William D. Hjelmstad, Casper, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and GUTHRIE, D.J.

VOIGT, Justice.

[¶1] Shirley J. Selvey (Mother) and Robert F. Selvey (Father) were divorced in August of 2001. They stipulated to joint legal custody of their child, R.S., with physical custody alternating yearly. In February of 2003, Mother moved to Missouri with R.S. and petitioned to modify the decree. She alleged in her petition that Father had engaged in prior inappropriate sexual behavior with two older daughters, and requested that visitation with R.S. be restricted. Father answered by filing his own petition for modification claiming that Mother was not stable or fit to care for R.S. The district court heard the matter and granted Mother primary custody of R.S. and ordered that Father's visitation with R.S. be supervised. Father appeals this determination. We affirm.

ISSUE

[¶2] Father presents only one issue for our review:

Did the trial court abuse [its] discretion when it allowed into evidence allegations that occurred prior to the original custody agreement and decree of divorce?

Mother presented five issues in her brief; however, Father's statement sufficiently characterizes the dispositive issue in this appeal.

FACTS

[¶3] In 1983, P.S. was born to Mother and Father. Two years later, Mother and Father were married in Casper, Wyoming. Mother had a daughter from a previous marriage, C.R., who was approximately fourteen years old when Mother and Father married. A third daughter, R.S., was born in 1992.

[¶4] Father has allegedly abused each of these three girls at one time or another. With regard to the oldest daughter, C.R., Mother testified that in approximately 1986, the Department of Family Services (DFS) filed a complaint alleging that C.R. "would wake up in the middle of the night and [Father] would be standing over the top of her at the side of her bed." At the time the complaint was filed, Father had gone to work in Alaska. Mother testified that DFS informed her that they would take C.R. from the home if Father returned. C.R. was sent to live with her biological father, and Mother testified that nothing came of the DFS charges.

[¶5] In 1999, the next oldest daughter, P.S., was taken into protective custody in Ohio after the director of a play in which P.S. was involved overheard a conversation wherein Father was verbally abusive to P.S. The director reported the incident to the Sandusky County Department of Human Services. The Sandusky County Department of Jobs and Family Services (Sandusky County DJFS) then took emergency custody of P.S. and filed a complaint. The complaint alleged specific instances of verbal, emotional, and physical abuse, and additionally alleged that Father had subjected P.S. to inappropriate sexual touching. Specifically, the complaint stated that P.S. reported that "on occasion she will wake up and her father will be sitting on the edge of her bed rubbing the inside of her leg, her lips and has put his hand on her skin directly above her breast." Father denied these allegations. Sandusky County DJFS completed an assessment and rated the case as moderate/high risk. A case plan was implemented requiring supervised visitation between P.S. and Father, and recommending that both Mother and Father complete a parenting class and attend counseling. The case plan also recommended that Father undergo a sexual offender assessment and complete all recommendations of that assessment, and that he participate in anger management.

[¶6] Ten months later the court found that Mother and Father had made little progress toward reunification. Sandusky County DJFS did not know where the parents were and was unable to verify compliance with the case plan. As a result, the guardian with whom P.S. had been placed was awarded legal custody, and P.S. remained with this person until she became an adult.

[¶7] Five months after P.S. was removed from her home, the Sandusky County DJFS filed a second complaint regarding the youngest daughter, R.S. The following facts were alleged as the basis for this complaint:

1. On August 23, 1999, Sandusky County Department of Jobs and Family Services received custody of [P.S.] due to concerns of possible inappropriate touching by her father and physical altercations between [P.S.] and her father. On August 24, 1999, a Complaint was filed on [P.S.] alleging abuse, neglect and dependency. On November 15, 1999, the parties consented to an adjudication of dependency.

2. At the time of the investigation, [Mother] had moved to Missouri with [R.S.], while [Father] had stayed behind in Sandusky County. Communications between agency personnel and the Selveys became very difficult for a time because their lawyer prohibited contact.

3. [Father], [Mother], and [R.S.] now reside in Sandusky County together. Since approval of the case plan, the Selveys have not made any progress. In addition, the caseworker has not been allowed to access [R.S.] to check on her well-being. The agency has also been informed that [P.S.] is recalling the fact that she may have been inappropriately touched by her father at an earlier age than she originally remembered. An adult daughter also allegedly reports being touched by [Father] inappropriately when she was a teenager.

4. Recently, the Sandusky County Department of Jobs and Family Services received allegations that [R.S.] was being removed from school to be possibly home schooled. [R.S.] would then have no outside source to report any inappropriateness, if it were to occur.

5. Due to the continued lack of cooperation that the Selveys show to the agency, the fact that the agency has been denied access to [R.S.] to check on her well-being, and especially with concerns of other girls being inappropriately touched, now possibly at an earlier age, the Sandusky County Department of Jobs and Family Services requests protective supervision over [R.S.].

This complaint was eventually dismissed because the Sandusky County DJFS was unable to serve process on the parents, as no one knew where they were. Mother later testified that she and Father decided to leave Ohio because they feared R.S. would also be removed from the home; Mother stated, "the charges against [Father] were too strong not to remove her."

[¶8] Mother eventually filed for divorce. The stipulated divorce decree granted Mother and Father joint legal custody of R.S., with physical custody alternating yearly. The decree granted Father physical custody of R.S. during the first year following the divorce. By the time the first year ended, Mother and Father had reconciled and were living together in Casper, Wyoming. Mother and R.S. eventually left Father's home and moved to a trailer on Father's property. Approximately two months later, Mother and R.S. moved from Father's property to another residence in Casper. A short time later, Mother filed a petition to modify the divorce decree, and on the same day moved with R.S. to Missouri.

[¶9] In her petition to modify, Mother stated that a substantial change of circumstances had occurred since the divorce decree. In addition to the petition for modification, Mother filed a verified motion for temporary custody in which she requested that she be granted custody of R.S. and that Father's visitation be restricted until the modification petition was heard. In support of her motion, Mother alleged that Father "is an extremely controlling individual using physical and mental menacing to accomplish his will," that he had committed inappropriate sexual touching with the two other daughters, that inappropriate touching with the other daughters commenced when they turned ten years old, and that R.S. had turned ten years old and was at severe risk if left unsupervised with Father overnight. Attached to Mother's motion were records of the prior Ohio abuse allegations.

[¶10] Father responded by filing his own petition for modification and a temporary restraining order. Father's petition stated that a substantial change of circumstances had occurred and that he should be granted custody of R.S. until Mother underwent a psychiatric examination to prove her mental stability. As a factual basis, Father alleged that Mother had moved many times since the divorce, refused to provide her current mailing address, was delinquent in her child support payments, failed to provide health insurance for R.S., refused to allow R.S. to continue counseling, recently filed a voluntary petition for bankruptcy and was financially unstable, sought psychiatric help and was prescribed Prozac but refused to take it, and since Mother had taken custody of R.S. she had allowed Father very little visitation. Father's restraining order requested that Mother be restrained from leaving Wyoming with R.S. until a hearing was held on his petition.

[¶11] The day after filing his answer and counterclaim, Father went to Missouri and picked R.S. up at her school, telling her that Mother had agreed that "he could take her for a ride." He was driving a van belonging to his girlfriend. Father proceeded with R.S. to Illinois where he switched vehicles and then drove to Ohio where his brother lived. Father had informed his attorney that he would be making the trip to Missouri to see R.S.; however, he did not notify Mother or Mother's attorney that he would be in the state or that he intended to see R.S. Upon learning that R.S. did not arrive at school, Mother contacted Missouri law enforcement officials and an "Amber alert" was issued. Police arrested Father at his brother's house in Ohio the next day and charged him with parental kidnapping. He was extradited to...