Tw v. Bm, C-05-8.

• Decision Date: 01 June 2006
• Docket Number: No. C-05-8.,C-05-8.
• Citation: 134 P.3d 1262,2006 WY 68
• Parties: TW, Appellant (Respondent), v. BM, Appellee (Respondent).
• Court: Wyoming Supreme Court

134 P.3d 1262

2006 WY 68

TW, Appellant (Respondent), v. BM, Appellee (Respondent).

No. C-05-8.

Supreme Court of Wyoming.

June 1, 2006.

Representing Appellant: Gibson Sean Benham of Casper, Wyoming.

Representing Appellee: Kyle R. Smith of Worrall, Greear & Smith, P.C., Worland, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

HILL, Chief Justice.

[¶ 1] In this appeal, TW (mother) challenges an order granting BM's (father's) petition to modify custody of their son. Mother contends that, contrary to her constitutional right to travel, the district court modified custody based solely on her various relocations. We will affirm.

ISSUE

[¶ 2] TW presents one issue for our review:

Whether the trial court abused its discretion by ordering a modification of custody based on relocations by mother in light of the mother's constitutional right to travel?

FACTS

[¶ 3] Because there is no transcript from the district court's hearing, we must derive this statement of facts from the pleadings and orders. The parties' son was born February 3, 1996. The parties never married each other. In March of 1998, the Wyoming Department of Family Services filed a "Petition to Establish Paternity and Support." In July of 1998, the district court entered a "Judgment and Order of Paternity and Support by Default." By that order, BM (father) was adjudicated the natural father of the parties' son. Mother was awarded primary physical custody of the parties' son, subject to the right to reasonable visitation by father. No specific visitation schedule was established. Father was ordered to pay monthly child support of $200.

[¶ 4] Over the next several years, father filed three petitions to modify custody. In June of 2002, father filed a "Petition for Modification and Contempt of Court." Among other things, father's petition alleged that, since the 1998 paternity judgment, (1) mother had moved with son to Las Vegas, Nevada; (2) mother changed addresses frequently since her relocation to Las Vegas; (3) son attended school only "sporadically"; (4) mother had thwarted father's attempts to exercise his visitation rights; and (5) father had married and established a stable home. On August 2, 2002, the district court held a hearing on father's petition. At that hearing, the parties informed the district court that they had agreed to settle the matter. Under the parties' agreement, custody was not modified. However, the parties established a specific visitation schedule for father: alternating holidays, six weeks in the summer, telephone visitation, and other visitation as agreed upon. The district court instructed the parties to submit an order approving their settlement, but no such order was ever entered.

[¶ 5] In January of 2003, father filed an "Amended Petition for Modification of Child Custody." In addition to reasserting the allegations contained in the initial petition, father's amended petition alleged, among other things, that (1) mother continued to change addresses and telephone numbers without notifying father; and (2) son continually stayed overnight at the homes of individuals other than mother. The district court ordered the parties to mediate the dispute. The record does not reveal what resulted from the mediation, but it is apparent that primary legal custody of son remained with mother.

[¶ 6] The present action began on September 29, 2004, when father filed a "Petition for Modification of Custody." This petition chronicled mother's repeated relocations to, and in, Wyoming; Las Vegas, Nevada; and Bozeman, Montana. Significantly, the petition alleged:

During the period of time including the school years 2001/2002 and 2002/2003, the parties' minor child has been enrolled or re-enrolled about thirteen (13) different times in schools and school districts in three different states as a result of the overall instability and irresponsibility of Mother.

[¶ 7] On February 8, 2005, the district court held a hearing on father's petition. Mother appeared pro se at the hearing. The hearing was not reported. Following the hearing, the district court entered its "Order Modifying Custody & Establishing Visitation & Child Support." In that order, the district court awarded father sole custody of the parties' son. A visitation schedule was established for mother, and she was ordered to pay monthly child support of $762.44.

[¶ 8] In its order modifying custody, the district court determined that father had "met his burden of proving that a substantial and material change in circumstances has occurred affecting the best interest of the parties' child." In its findings of fact, the district court wrote:

1. The parties' minor child has a loving relationship with both parties;

2. The stability and home environment of [father] is such that he is in a better position to provide adequate care for the parties' minor child;

3. The instability of [mother] has been proven through her testimony regarding the many residential and educational changes regarding the parties' minor child while the parties' minor child has been in her primary care and custody since the date of the last hearing regarding custody of the parties' minor child on July 31, 2002;

4. [Father] persuasively proved to the court through his testimony and the testimony of his wife ... that his current residential environment is stable and capable of sustaining a safe, loving and productive home environment for the parties' minor child;

5. Each of the parties is willing to accept the responsibilities of parenting, however, [mother's] erratic schedule of leaving the parties' minor child with [father] indicated to the court an unacceptable willingness to pass this responsibility to [father] at her convenience;

6. [Father] has willingly accepted and performed the responsibilities of parenting on several occasions at the convenience of [mother];

7. [Father's] demonstrated stability and responsibility regarding the parties' minor child's best serves the continued maintenance and strengthening of his parenting relationship with the [mother] as well as with the parties' minor child:

8. [Father] has attempted to maintain contact and communication with the parties' minor child despite the regular changes of residence and education instigated by [mother] without notice to [father]:

9. [Father] is better able to facilitate and develop regular communication between the parties and the parties' minor child;

10. [Father] is better able to care for the safety, security and support of the parties' minor child;

11. It is in the best interests of the parties' minor child * * * * * that [father] be awarded sole custody of the parties' minor child[.]

Mother then filed this timely appeal.

STANDARD OF REVIEW

[¶ 9] Modification of custody is governed by Wyo. Stat. Ann. § 20-2-204 (LexisNexis 2005), which provides in pertinent part:

§ 20-2-204. Enforcement and modification.

. . . .

(c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a). In any proceeding in which a parent seeks to modify an order concerning child custody or visitation, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances.

[¶ 10] In reviewing such a matter, our standard of review is well established:

"The party seeking a modification of the custody provisions of a divorce decree has the burden of showing that a material and substantial change of circumstances has occurred, after the entry of the initial decree, and that modification is in the best interests of the children." Clark v. Alexander, 953 P.2d 145, 150 (Wyo.1998). This court will not interfere with the trial court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion. Id. We recently clarified the definition of an abuse of discretion when we stated the core of our inquiry must reach "the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998); see also Pace v. Pace, 2001 WY 43, ¶ 9, 22 P.3d 861, ¶ 9 (Wyo.2001). 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. Id.

Fergusson v. Fergusson, 2002 WY 66, ¶ 9, 45 P.3d 641, 644 (Wyo.2002).

DISCUSSION

A. Substantial change of circumstances; constitutional right to travel

[¶ 11] Mother contends that the district court abused its discretion in finding a substantial change in circumstances. She claims that the district court's decision was based solely on her relocations and is thus in direct conflict with her constitutional right to travel. She argues that relocations, by themselves, may not serve as a basis for finding a substantial change of circumstances.

[¶ 12] Recently, we summarized the law governing mother's claim:

To summarize, our precedent is quite clear that relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order. That precept is also applicable to any factors that are derivative of relocation. What Mother has failed to acknowledge in her argument, however, is that our precedent does not preclude the district court from considering the effects of relocation on the children so long as there is some other circumstance that is "sufficiently deleterious to the welfare of the children that by itself . . . would serve as a substantial and material change in circumstances even in the absence of a relocation." [...