Steele v. Neeman, 99-283.

• Decision Date: 07 June 2000
• Docket Number: No. 99-283.,99-283.
• Citation: 6 P.3d 649
• Parties: Melody Ann STEELE, Appellant (Plaintiff/Respondent), v. Robert Boyd NEEMAN, Appellee (Defendant/Petitioner).
• Court: Wyoming Supreme Court

6 P.3d 649

Melody Ann STEELE, Appellant (Plaintiff/Respondent), v. Robert Boyd NEEMAN, Appellee (Defendant/Petitioner).

No. 99-283.

Supreme Court of Wyoming.

June 7, 2000.

Representing Appellant: Philip White Jr., Laramie, Wyoming. Argument presented by Mr. White.

Representing Appellee: Daniel B. Bailey of Lubnau, Hand, and Bailey, LLC, Gillette, Wyoming. Argument presented by Mr. Bailey.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Melodie Ann Steele (Mother) appeals the exercise of jurisdiction by the district court over an interstate child custody/visitation dispute. Mother argues that the Wyoming court no longer retained jurisdiction, or, at the least, that it should have declined to exercise its discretion and deferred jurisdiction in favor of the courts of the State of New York. In addition, Mother challenges the district court's modification of the terms of visitation. We reverse and remand.

ISSUES

Mother presents these statements of the issues presented for review:

I. Considering that the child has lived in New York since 1990 and has not been in Wyoming since 1997, did the Wyoming district court in 1999 meet both of the requirements of 28 U.S.C. § 1738A(d), including the requirement that the Wyoming court still have jurisdiction under W.S. § 20-5-104(a), so as to have continuing jurisdiction to make a child custody/visitation determination or modification?

II. If so, was it an abuse of discretion for the district court to exercise that jurisdiction instead of deferring to the courts of New York?

III. If the Wyoming court had jurisdiction and properly exercised it, did the district court properly find that it would be in the best interests of the child to fly unaccompanied for his visitations in Wyoming?

Appellee Robert Boyd Neeman (Father) responds with the following statement of the issues:

A. Did the District Court abuse its discretion by extending continuing jurisdiction to modify its child custody orders?

B. Was the Appellant's Notice of Appeal timely filed?

C. Did the District Court abuse its discretion by ruling that the child should fly for visitation as an unaccompanied minor?

FACTS

Mother and Father were married in Colorado on August 1, 1979. Exactly eleven years later, Mother filed for divorce in Campbell County, Wyoming. The marriage produced one child, born on May 22, 1989. Shortly after filing the action for divorce, Mother and child moved to New York State. Eventually, the parties entered into a settlement agreement resolving issues relating to child custody, support, and visitation. The settlement agreement was incorporated into the Decree of Divorce, which was issued on June 7, 1991. For purposes of the current proceedings, the relevant portion of the Decree of Divorce granted Mother custody of the child in New York while providing for liberal visitation rights to Father including provisions for allowing the child to spend vacations in Wyoming.

In what would become a pattern in the parties' relationship, Father filed a show cause motion in the Wyoming district court on October 3, 1991, claiming that Mother had breached the terms of the settlement agreement and the divorce decree regarding the terms of visitation. The parties resolved the dispute by entering into a stipulation on January 2, 1992. In response, the district court issued an Amended Decree of Divorce on January 6, 1992, adopting the terms of the stipulation.

The dispute then moved to the courts of New York State. In August of 1994, Mother filed a motion to modify visitation in the family court of Chautauqua County, New York. Father appeared with counsel in the matter, apparently for the purpose of contesting the jurisdiction of the New York court. Nevertheless, the parties were able to reach an accommodation, which was memorialized in a settlement agreement. The agreement was subsequently accepted by the New York court and incorporated into an order issued on August 21, 1995. The same scenario was repeated in 1996 when Mother filed a show cause order in the New York family court, which resulted in an oral stipulation again modifying visitation. The New York court issued an order on August 1, 1996, encapsulating the new agreement.

In the action which precipitated the events leading to this proceeding, Father filed a petition to modify child support in the Wyoming district court on February 19, 1998. Mother countered with two motions, one filed in the Wyoming court and the other filed in New York. Mother's Wyoming motion sought dismissal of Father's action based on contentions that the courts of New York had assumed jurisdiction over support matters. The motion filed in New York by Mother sought to have that court modify the terms of child support and visitation. Subsequently, Father filed an amended petition in the Wyoming court, which added issues of child custody and visitation to those regarding support raised in the initial petition.

Meanwhile, on June 23, 1998, the New York court ruled that it did not have jurisdiction over child support issues. New York, however, still claimed jurisdiction over the visitation issue. In a July 14, 1998, letter to the New York court, the Wyoming judge acknowledged that New York was the home state of the child but asserted that Wyoming had still retained jurisdiction. The New York court replied with a letter the very next day in which it reiterated its belief that New York was the home state of the child, giving it jurisdiction over custody and visitation issues. In a subsequent letter on July 15, 1998, the New York court also pointed out that it had already issued at least two orders on visitation and that the latest filing in New York on that subject preceded the Father's Wyoming filing. The record does not disclose any other communications between the two jurisdictions.

The New York court issued a decision on February 17, 1999, ostensibly modifying visitation. The relevant part of that order required Father to accompany the child on flights to and from his visitations to Wyoming. Meanwhile, in an April 1, 1999, order, the Wyoming district court found that it had "continuing, exclusive jurisdiction over issues related to child custody and child support." A hearing was subsequently held on the merits of Father's petition. A decision letter was issued on June 28, 1999, modifying visitation. The Wyoming order conflicted with the New York order in that it allowed the minor child to travel by air to and from Wyoming unaccompanied. Mother now appeals to this Court, challenging the assertion of jurisdiction by the Wyoming court and its decision to allow the child to travel on his own.

STANDARD OF REVIEW

The resolution of this case depends on the interpretation of statutory language:

"We endeavor to interpret statutes in accordance with the Legislature's intent. We begin by making `"an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection."' * * *"

* * * "When the court determines, as a matter of law, that a statute is clear and unambiguous, it must give effect to the plain language of the statute and should not resort to the rules of statutory construction." * * * If, on the other hand, the Court determines that a statute is ambiguous, it may use extrinsic aids of statutory interpretation to help it determine the legislature's intent.

State ex rel. Wyoming Workers' Safety and Compensation Div. v. Bruhn, 951 P.2d 373, 376 (Wyo.1997) (quoting State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994) and Lancto v. City of Rawlins, 892 P.2d 800, 802-03 (Wyo.1995)).

Basin Electric Power Co-Op. v. Bowen, 979 P.2d 503, 506 (Wyo.1999). In child custody proceedings, the determination of whether to exercise jurisdiction or to defer to the courts of another state is reviewed for an abuse of discretion. Ritter v. Ritter, 989 P.2d 109, 111 (Wyo.1999).

DISCUSSION

Initially, we must address a contention raised by Father that Mother's appeal was not timely filed. Father insists that the April 1, 1999, district court order which stated that "IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court has continuing, exclusive jurisdiction over matters related to child support and child custody between these parties and their minor child," was a final, appealable order under W.R.A.P. 1.05 (LEXIS 1999). (Emphasis in original.) Since Mother did not file her notice of appeal until September 21, 1999, well outside the allowable 30-day time period, Father contends that the appeal should be dismissed pursuant to W.R.A.P. 1.03 (LEXIS 1999). Mother counters that the April 1, 1999, decision was not a final, appealable order because it did not resolve all outstanding issues between the parties. Indeed, Mother notes that the very order cited by Father actually sets a hearing date on the substance of Father's motion to modify visitation.

We agree with Mother. An appealable order is [a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment[.]" W.R.A.P. 1.05(a). "[A] judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is not appealable unless it does those things." Public Service Commission v. Lower Valley Power, 608 P.2d 660, 661 (Wyo. 1980). The resolution of the jurisdictional issue by the district court did not determine the merits of the controversy. This is selfevident from the fact that the very order cited by Father also sets the merits of the controversy—his petition to modify visitation—for hearing. Since that order did not determine the merits of the controversy and resolve all outstanding issues, it was not a final, appealable order under W.R.A.P. 1.05(a). The final, appealable order in this matter was the one issued by the district court fully disposing of Father's modification petition on the merits....