Walsh v. Smith

• Decision Date: 24 February 2020
• Docket Number: S-19-0141
• Citation: 458 P.3d 58
• Parties: Nicole M. WALSH, Appellant (Petitioner), v. Dustin C. SMITH, Appellee (Respondent).
• Court: Wyoming Supreme Court

458 P.3d 58

Nicole M. WALSH, Appellant (Petitioner),

v.Dustin C. SMITH, Appellee (Respondent).

S-19-0141

Supreme Court of Wyoming.

February 24, 2020

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

Representing Appellee: Sarah N. Miles, Keegan, Krisjansons & Miles, P.C., Cody, Wyoming.

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

BOOMGAARDEN, Justice.

[¶1] After Nicole M. Walsh (Mother) moved from Wyoming to Idaho, Dustin C. Smith (Father) petitioned to modify custody, visitation, and support, requesting physical and residential custody of their three-year-old daughter AJW. Mother counterclaimed to maintain primary physical custody of AJW. The court temporarily modified Father's visitation schedule pending trial to provide AJW stability in her amount of time with each parent. The court temporarily modified custody after trial to reduce AJW's monthly travel time pending issuance of its final order. In its final order, the court concluded that Mother's move constituted a material change in circumstances, and that it was in AJW's best interest for Father to have primary physical and residential custody of AJW after she enters kindergarten. The court modified visitation and child support accordingly. Mother appealed, and we affirm.

ISSUES

[¶2] We rephrase Mother's issues:¹

I. Did the district court abuse its discretion when it temporarily modified custody and visitation after Mother moved to Idaho?

II. Did the district court abuse its discretion by ignoring material factors deserving significant weight when it permanently modified custody after Mother moved to Idaho?

III. Did the district court abuse its discretion by ordering a visitation plan that is unworkable, is contrary to AJW's best interest, and fails to grow with AJW?

FACTS

[¶3] Mother and Father met while they were both attending nursing school in Powell, Wyoming. They were romantically involved but never married. AJW was born in 2014. Genetic testing established that Father is AJW's biological father. Mother and Father reached an agreement regarding custody, visitation, and support. In February 2016, the court memorialized their agreement, under which Mother and Father shared legal custody of AJW. The order named Mother as the primary physical, custodial, and residential parent. Father had graduated visitation, culminating in visitation every weekend, with an extended visit every other weekend (amounting to visitation approximately 36% of the time). Both Mother and Father resided in Cody, Wyoming, worked as nurses, and abided by the stipulated order.²

[¶4] The present dispute arose in October 2017, when Mother moved to Idaho with AJW and AJW's younger half-brother for an employment opportunity,³ and Father responded with two petitions regarding custody, visitation, and support. In the first petition, Father argued that Mother's move warranted permanent modification of the stipulated order. He contended that AJW's best interest would be served by awarding him physical and residential custody of AJW, with liberal visitation to Mother. Addressing his relationship with AJW and her connections to Park County, he alleged:

5. Pursuant to the Stipulated Order on Custody, Visitation and Support, [Father] has a very liberal visitation schedule and has the minor child almost in a shared custody fashion.

6. [Father] and the minor child have a very close bond. Additionally, the minor child has two (2) half-siblings that she is very close to and has a new half-sister that was recently born to [Father] and his wife.

7. [Father] has a stable living environment, job, and support system in Park County. He can provide a nurturing environment and stability to the minor child on a day to day basis and has done so for the life of the minor child.

8. The minor child has resided in Park County, Wyoming for her entire life. She has significant ties to the community, including half-siblings, aunts, grandmother[s], uncles, cousins, and a stepmother. The minor child and [Mother] have no ties to the State of Idaho and know no one there. Based upon information and belief, [Mother] moved there for employment purposes.

9. All individuals with information relating to the minor child reside in Park County, Wyoming.

In the second petition, Father argued that AJW's best interest would be served by awarding him temporary custody of AJW during the proceedings. There he added that Mother provided him little notice of the move, and he and Mother were operating under an informal temporary arrangement he felt forced into entering due to Mother's move.

[¶5] In her answer, Mother admitted that she moved to Idaho for an employment opportunity and to better provide for AJW but denied most of Father's remaining allegations. She counterclaimed to maintain primary physical custody of AJW, with visitation for Father that did not conflict with AJW's future school schedule or extra-curricular activities.

[¶6] The court heard Father's temporary custody petition in November 2017, noting at the end of the hearing that Mother and Father would have to make sacrifices to maintain consistency in AJW's life. The court rejected Mother's proposal to reduce Father's visitation from twelve to three days a month. In its February 2018 temporary order regarding custody and visitation, the court found the February 2016 custody and visitation schedule unworkable and not in AJW's best interest. It determined that it was in AJW's best interest for Mother to have physical custody of AJW, with "very liberal visitation" to Father, consisting of twelve consecutive days each month, excluding travel days (increasing his visitation by 3%). Mother and Father were to meet in Dillon, Montana, unless they agreed otherwise.

[¶7] Mother, Father, and Father's ex-wife (the mother of two of AJW's half-siblings) testified at trial in December 2018. Mother and Father stipulated that they are both fit to have custody and control of AJW and that there had been a material change in circumstances that warranted, at a minimum, a change in visitation. In its post-trial interim order, the court determined that the schedule set forth in its February 2018 temporary order was "not in [AJW's] best interest and should be modified to reduce" her travel time. It ordered Mother and Father continue to have joint legal custody of AJW. It determined that it was in AJW's best interest for Mother and Father "to have joint physical custody of [AJW] in alternating four (4) week blocks" beginning on January 12, 2019.

[¶8] In its decision letter, the court found Mother's relocation constituted a material change in circumstances that warranted reopening the case for a custody and visitation determination. Having found a material change in circumstances, the court then evaluated each of the statutorily enumerated best interest factors related to any modification of custody or visitation. While the court concluded that most factors were neutral, it determined that one weighed in Father's favor and another weighed "slightly" in his favor. None of the factors favored Mother. The court separately addressed Mother's argument that it should consider the fact that she had been AJW's primary caregiver as a substantial factor. The court concluded that Mother's status as AJW's primary caregiver did not warrant much weight because under the stipulated arrangement Father had liberal visitation and cared for AJW over one-third of the time.

[¶9] The court ordered Mother and Father share custody of AJW until she enters kindergarten. But the court designated Father as AJW's primary physical and residential custodial parent after she enters kindergarten, with liberal visitation to Mother. Mother and Father must alternate holidays based on AJW's school calendar. They must meet in Dillon, Montana at noon on the day after school lets out and then again on the day before school resumes. The court determined that Mother and Father reside too far apart for weekend visitation to be reasonable in Payette, Idaho. It therefore ordered that Mother be allowed one weekend visitation per month, provided visitation occurs within 100 miles of Cody. Father must deliver AJW to a location of Mother's choosing within that distance. Mother and Father are responsible for their own transportation costs with respect to both holiday and weekend visitation.

[¶10] Mother timely appealed the court's final modification order, which incorporated its decision letter.

STANDARD OF REVIEW

We "review orders modifying custody, visitation[,] and child support for an abuse of discretion[.]" Greer v. Greer , 2017 WY 35, ¶ 19, 391 P.3d 1127, 1133 (Wyo. 2017) (quoting Tracy v. Tracy , 2017 WY 17, ¶ 46, 388 P.3d 1257, 1267 (Wyo. 2017) ). Judicial discretion is composed "of many things, among which are conclusions drawn from objective criteria" and "means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily [or] capriciously." Aragon v. Aragon , 2005 WY 5, ¶ 7, 104 P.3d 756, 759 (Wyo. 2005). We "will not disturb an order regarding custody or visitation so long as the court could reasonably conclude as it did." Greer , 2017 WY 35, ¶ 19, 391 P.3d at 1133. "We evaluate the reasonableness of a decision in relation to the evidence presented, viewing it in the light most favorable to the district court's determination, affording every favorable inference to the prevailing party, and ignoring any conflicting evidence." Id . (citations omitted).

Paden v. Paden , 2017 WY 118, ¶ 6, 403 P.3d 135, 138 (Wyo. 2017). We do not reweigh the evidence. Id. ¶ 13, 403 P.3d at 140 (citation omitted). A court abuses its discretion when it ignores a material factor that deserves significant weight. See Love v. Love , 851 P.2d 1283, 1291 (Wyo. 1993) (quoting Vanasse v. Ramsay , 847 P.2d 993, 996 (Wyo. 1993) ).

DISCUSSION

I. Temporary Custody and Visitation Orders

[¶11] Mother argues that the court "failed to balance the needs and rights of the parties and...