Watt v. Watt, 96-322

• Decision Date: 19 January 1999
• Docket Number: No. 96-322,96-322
• Citation: 971 P.2d 608
• Parties: Brenda Kay WATT, Appellant (Plaintiff/Petitioner), v. Joseph Robert WATT, Appellee (Defendant/Respondent).
• Court: Wyoming Supreme Court

Page 608

971 P.2d 608

Brenda Kay WATT, Appellant (Plaintiff/Petitioner), v. Joseph Robert WATT, Appellee (Defendant/Respondent).

No. 96-322.

Supreme Court of Wyoming.

Jan. 19, 1999.

Mark L. Hughes of Hughes Law Office, Sundance, for Appellant.

Dwight F. Hurich of Hurich Law Office, Gillette, for Appellee.

Representing Amicus Curiae, University of Wyoming Legal Services Program: Diana Stithem, Designated Faculty Supervisor; Angela Castro, Student Director; and David L. Delicath, Student Intern, University of Wyoming Legal Services Program, Laramie, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

THOMAS, Justice.

The question in this case is whether the discretion of the trial court to order a change in custody upon a material change of circumstances is circumscribed by a constitutional right of relocation. The mother, Brenda Kay Watt (Mrs. Watt), was granted primary care, custody, and control of the parties' three minor sons upon her divorce from the father, James Robert Watt (Mr. Watt). The divorce decree provided for an automatic change of custody from the mother to the father if the mother moved more than fifty miles from Upton. When Mrs. Watt was admitted to the graduate pharmacy program at the University of Wyoming, she discovered that she could pursue that opportunity only by moving to Laramie. She sought permission from the trial court to change her place of residence by more than fifty miles, and Mr. Watt then asked for a change in custody of their sons. The trial court, recognizing that the automatic change provision was improper, awarded custody of the three sons to the father, essentially applying the best interests of the children evaluation. Mrs. Watt appealed the Order Modifying Decree of Divorce entered in the trial court, which ordered the change in custody. We hold that not only does the ruling of the trial court constitute an abuse of discretion in light of earlier decisions of this Court, but it amounts to an infringement upon Mrs. Watt's constitutional right to travel. We reverse the Order Modifying Decree of Divorce entered in the trial court.

In her Brief of Appellant, Mrs. Watt initially raised this issue:

Did the trial court err as a matter of law in applying the law of Wyoming in this parent relocation case and was the trial court's decision to change custody due to the mother's move from Upton, Wyoming to Laramie, Wyoming to attend pharmacy school an abuse of the court's discretion.

In the Brief of Appellee, filed on behalf of Mr. Watt, the issue is stated in this way:

Was there an abuse of discretion committed by the trial court when custody was modified, placing the children with the father upon the mother's relocation from the children's home to pursue her education?

Mrs. Watt, in her Supplemental Brief of Appellant, articulates these issues:

Issue No. 1: Does intrastate relocation or matters incident thereto tend to manifest a material change in circumstances sufficient to justify reopening a prior custody adjudication?

Issue No. 2: Does the Wyoming Constitution posit a fundamental right to travel which might be subject to impermissible infringement where intrastate relocation, or matters incident thereto, are determined to constitute a material change in circumstances sufficient to justify the reopening of a prior custody adjudication?

This Statement of the Issues is found in the Supplemental Brief of Appellee, filed for Mr. Watt:

A. May intrastate relocation of a parent, or factors relating to such a relocation, constitute a material change in circumstances sufficient to justify the reopening of a prior custody adjudication?

B. Is the right of travel a fundamental liberty interest protected by the Constitution of the State of Wyoming which would be unlawfully infringed were intrastate relocation of a parent, or factors relating to such a relocation, held to constitute a material change in circumstances sufficient to justify the reopening of a prior custody adjudication?

In the Amicus Curiae Brief of the University of Wyoming Legal Services Program, these issues are raised:

I. Is the right of travel a fundamental liberty interest protected by the Constitution of the State of Wyoming which would be unlawfully infringed were intrastate relocation of a parent, or factors relating to such a relocation, held to constitute a material change in circumstances sufficient to justify the reopening of a prior custody adjudication?

II. May intrastate relocation of a parent, or factors relating to such a relocation, constitute a material change in circumstances sufficient to justify the reopening of a prior custody adjudication?

In the Appellee's Reply to Amicus Curiae Brief of University of Wyoming Legal Services Program, Mr. Watt re-emphasizes his position that there must be a balance between a parent's right to travel and decisions involving the best interests of the child.

The Watts were married on June 4, 1983. Three sons were born to the parties: Douglas Allan Watt, born on June 12, 1985; Bryan Allan Watt, born on September 2, 1986; and Jason Allan Watt, born on November 25, 1987. On May 18, 1995, the Watts were divorced, and the divorce decree awarded primary custody of the three sons to Mrs. Watt. The divorce decree encompassed a finding that it was in the best interests of the children that the mother have primary custody, but only if the children remained with Mrs. Watt in the Upton area. It also included a provision that if Mrs. Watt moved more than fifty miles from Upton, custody automatically would be given to Mr. Watt. Mr. Watt was granted liberal visitation with the children, including two week nights each week, every other weekend, and significant time during school vacations.

After they were divorced, Mr. and Mrs. Watt continued to live in Upton. Their sons maintained close relationships with both of their parents, and all three continued to do well in school. Mr. Watt always exercised his visitation, and he coached the basketball and baseball teams on which the boys played. Both parents testified that they were able to cooperate well with respect to visitation, and, in some instances, Mrs. Watt and Mr. Watt have received more visitation than required by the divorce decree.

Mrs. Watt's financial situation was dramatically affected by the divorce. She testified that her income from her hair styling business decreased by one third from $15,000.00 a year to approximately $10,100.00. She attributed the diminution to the fact that Mr. Watt's large extended family stopped patronizing her business. Mr. Watt, voluntarily, took a new job that resulted in his income being reduced from approximately $2,400.00 per month to approximately $1,100.00 per month. During the marriage, Mrs. Watt had taken college level classes, and she continued to do so after the divorce. She succeeded in securing enough prerequisites to permit her to apply to be admitted to the graduate pharmacy program at the University of Wyoming. According to her testimony, she believes that those who succeed in graduating from this program can earn between $50,000.00 and $60,000.00 per year in Wyoming.

In 1996, Mrs. Watt was accepted into the pharmacy degree program at the University of Wyoming, but she could only pursue that opportunity at the campus in Laramie. Mrs. Watt filed a Petition for Modification of Decree of Divorce Pursuant to Wyoming Statute § 20-2-113(a) and a Motion for Relief from Judgment and Order Pursuant to Rule 60(b)(5) and 60(b)(6) of the Wyoming Rules of Civil Procedure on June 20, 1996. She sought this relief so that she could take her three sons to Laramie with her. She found a home in Laramie; investigated the Laramie school programs and athletic programs; and arranged for child care. Mr. Watt objected to this change in residence and the relief sought by Mrs. Watt. He contended that it was not in the best interests of the children to change their residence from Upton, and he demanded that custody be awarded to him based upon the trial court's previous order for an automatic change in custody in the event Mrs. Watt should move more than fifty miles from Upton.

Mr. Watt asserted that his new job permitted him to spend more time with his three sons; both sets of grandparents were residents in Upton; the original divorce decree found that the parties had agreed that Upton was a good place to raise their three sons; and two of the three boys preferred to remain in Upton with their father. The hearing on the parties' motions was scheduled for September 12, 1996, and since that date was after the beginning of the school term, Mrs. Watt moved to Laramie in August to pursue her degree. She complied with the existing divorce decree by leaving the three boys in Upton with their father.

The hearing on the petitions and motions of the parties was conducted on September 12, 1996, and Mr. and Mrs. Watt both presented witnesses and testimony relating to the requested change of residence. Among other propositions, Mrs. Watt contended that the automatic change of custody provision was contrary to Martin v. Martin, 798 P.2d 321, 323 (Wyo.1990), in which the court held that a provision in a decree of divorce that would automatically change custody upon relocation of the custodial parent was speculative, and thus constituted an abuse of discretion. Following the hearing, the trial court made oral findings which had the effect of denying the relief sought by Mrs. Watt, and would change the primary custody of the three sons from Mrs. Watt to Mr. Watt with appropriate changes in visitation and child support. The formal order was entered on November 12, 1996. Subsequently, the trial court found that it had erred in including an automatic change in custody if Mrs. Watt moved more than fifty miles from Upton, and it refused to invoke the automatic provision. Nevertheless, the trial court ordered a change in primary custody from Mrs. Watt to Mr. Watt.

The trial court...