Willard Donald Bishop v. Jorja Anna Bishop

• Citation: 404 P.3d 1170
• Decision Date: 06 November 2017
• Docket Number: S-17-0081.
• Parties: Willard Donald BISHOP, Appellant (Plaintiff), v. Jorja Anna BISHOP, n/k/a Jorja Anna Manolis, Appellee (Defendant).
• Court: Wyoming Supreme Court

404 P.3d 1170

Willard Donald BISHOP, Appellant (Plaintiff),

v.Jorja Anna BISHOP, n/k/a Jorja Anna Manolis, Appellee (Defendant).

S-17-0081.

Supreme Court of Wyoming.

November 6, 2017

Representing Appellant: Seth Shumaker, Sheridan, Wyoming.

Representing Appellee: Jason Edward Ochs, Casper, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, Justice.

[¶1] Willard Donald Bishop (Father) appeals from the district court's order modifying the divorce decree by transferring primary physical custody of the parties' son (the Child) to Jorja Anna Bishop, n/k/a Jorja Anna Manolis (Mother). Father claims the district court abused its discretion when it concluded (a) that Mother had proven a material change in circumstances affecting the Child had occurred since entry of the divorce decree, and (b) that it was in the Child's best interests to modify the custody provision of the decree.

[¶2] We affirm.

ISSUES

[¶3] Father presents three issues on appeal that we rephrase and consolidate into two:

1. Whether the district court abused its discretion by finding that there had been a material change in circumstances affecting the welfare of the Child since entry of the decree.

2. Whether the district court abused its discretion by concluding that it was in the Child's best interests to modify custody.

Mother presents similar issues for our review.

FACTS

[¶4] Mother and Father divorced in Gillette, Wyoming, in August 2014. The district court awarded primary custody of the Child, who was born in 2011, to Father, subject to Mother's reasonable and liberal visitation rights. Beginning in April 2015, the parties filed various motions for orders to show cause alleging the other had violated the terms of the divorce decree. The district court held a hearing on the contempt motions on July 1, 2015. It found Mother in contempt of court for denying Father his right to have the Child on Father's Day weekend and Father in contempt of court for: 1) refusing to allow Mother to begin her weekend visitation with the Child on Thursday nights as required by the decree; 2) denying Mother visitation on Easter weekend and Mother's Day weekend; 3) failing to have the Child developmentally screened; 4) failing to notify the court and Mother of changes in his employment and medical insurance; and 5) failing to transfer money to Mother from his retirement account as required by the property division provision in the decree. The district court entered judgment against Father for the amount due on the retirement funds plus interest and ordered him to pay Mother's attorney fees.

[¶5] Soon thereafter, Mother filed a petition to modify custody, visitation and child support. She also filed several more motions for orders to show cause claiming Father was in violation of the visitation and "obligation to cooperate" provisions of the decree.

[¶6] The district court held a hearing on the contempt motions on May 10, 2016. By that time, Father had refused Mother visitation with the Child for approximately seven months. Father apparently defended his actions by asserting the Child was not safe while visiting Mother because she was living with her boyfriend who was a sex offender. Mother stated that she lived alone and would not place the Child in harm's way. The district court heard testimony from Mother's boyfriend and concluded the Child was not in danger because there was no unsupervised contact between the two and "there is no evidence that [the boyfriend] ha[d] ever engaged in any inappropriate conduct with prepubescent children." The court further found that if Father feared for the Child's safety "the proper procedure was to petition the Court, not to deny visitation unilaterally." The district court again ordered Father to pay Mother's attorney fees.

[¶7] After the hearing, the disputes between the parties continued. Father claimed that Mother had violated the divorce decree by failing to notify him when she sought medical treatment for the child and of her changes in employment and address, cooperate with him about visitation schedules, and pay her share of the Child's medical bills. Mother claimed that Father violated the decree by denying her visitation and access to the Child on his birthday. The district court heard the contempt motions on November 29, 2016, right before the hearing on Mother's petition to modify custody. It concluded Mother was in contempt of court for failing to pay her share of certain medical bills.

[¶8] The district court granted Mother's petition to modify custody, visitation and support. It concluded Mother had demonstrated that a material change in circumstances had occurred since entry of the decree and it was in the Child's best interests to modify the decree and award custody to her. Father filed a timely notice of appeal from the modification order.¹

STANDARD OF REVIEW

[¶9] We review a district court's order on a petition to modify child custody for an abuse of discretion.

"We will not interfere with the district court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion. In determining whether the district court has abused its discretion, we must decide whether it could reasonably conclude as it did. 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."

Gjertsen v. Haar, 2015 WY 56, ¶ 11, 347 P.3d 1117, 1122 (Wyo. 2015), quoting Gray v. Pavey, 2007 WY 84, ¶ 8, 158 P.3d 667, 668 (Wyo. 2007). We consider the evidence in the light most favorable to the district court's decision, "affording every favorable inference to the prevailing party and omitting from our consideration the conflicting evidence." Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087, 1089 (Wyo. 2009). See also Walker v. Walker, 2013 WY 132, ¶ 22, 311 P.3d 170, 176 (Wyo. 2013).

DISCUSSION

[¶10] Wyo. Stat. Ann. § 20-2-204 (LexisNexis 2017) sets out the statutory requirements for modification of custody and visitation orders:

(a) Either parent may petition to enforce or modify any court order regarding custody and visitation.

....

(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. ...

[¶11] Under § 20-2-204(c), the district court conducts a two-step inquiry to determine whether modification of a custody and visitation order is appropriate.

The first step requires a showing that there has been "a material change in circumstances since the entry of the order in question." § 20-2-204(c). Because of the res judicata effect afforded custody orders, such a finding is a threshold requirement. Hertzler v. Hertzler, 908 P.2d 946, 949-50 (Wyo. 1995). The district court does not properly acquire jurisdiction to reopen an existing custody order until there has been a showing of "a substantial or material change of circumstances which outweigh society's interest in applying the doctrine of res judicata" to a custody order. Kreuter v. Kreuter, 728 P.2d 1129, 1130 (Wyo. 1986). In short, unless the district court finds a material change in circumstances, it cannot proceed to the second step—determining whether a modification would be in the best interests of the child.

Hanson v. Belveal, 2012 WY 98, ¶ 18, 280 P.3d 1186, 1193 (Wyo. 2012), quoting In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006) (some citations omitted).

1. Material Change of Circumstances

[¶12] The party seeking a change of custody has the burden of proving a material change of circumstances has occurred since entry of the governing custody order. In re TLJ, ¶ 11, 129 P.3d at 877. The district court evaluates "the current circumstances of the parties in relation to their circumstances at the time the prior custody order was entered." Id. , ¶ 10, 129 P.3d at 877, citing Jackson v. Jackson, 2004 WY 99, ¶¶ 8-12, 96 P.3d 21, 24-26 (Wyo. 2004). In order to be considered material and justify reopening the decree, the change in circumstances must affect the welfare of the child. Hanson, ¶ 34, 280 P.3d at 1197. See also , Morris v. Morris, 2007 WY 174, ¶ 6, 170 P.3d 86, 89 (Wyo. 2007).

[¶13] The district court concluded that Mother had shown "a substantial and material change in circumstances" since entry of the decree in August 2014:

[T]he substantial and material change includes:

a. The court has heard eleven (11) different motions for orders to show cause in the three (3) years [sic] since the Decree was entered.

b. Father has consistently and unilaterally denied Mother the visitation to which she is entitled under the Decree. He displays controlling behaviors and seems to disregard orders of the court or interpret them in a manner that permits him to keep the minor child away from Mother.

c. The minor child has been enrolled in counseling to deal with the trouble he is having transitioning between households and dealing with the acrimonious relationship between his parents. The parent[s'] relationship has not improved, even with court-ordered parenting classes.

d. Since entry of the Decree, Mother's life has stabilized. She has a wonderful supportive family, a good job, a safe home, and is advancing her education. Although her significant other has a criminal record, the court heard testimony from him in May 2016 and determined he poses no risk to the minor child.

e. Both Mother and Father have new

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