Dunsmore v. Dunsmore

2007 WY 202, 173 P.3d 389, 2007 Wyo. LEXIS 216, 2007 WL 4395082
CourtWyoming Supreme Court
DecidedDecember 18, 2007
Docket06-263
StatusPublished
Cited by3 cases

This text of 2007 WY 202 (Dunsmore v. Dunsmore) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunsmore v. Dunsmore, 2007 WY 202, 173 P.3d 389, 2007 Wyo. LEXIS 216, 2007 WL 4395082 (Wyo. 2007).

Opinion

HILL, Justice.

[T1] Appellant, Robert Troy Dunsmore (Father), seeks review of a decree divorcing him from Appellee, Amy Jo Dunsmore (Mother). Father contends that the district court erroneously rescinded its Order Allowing Telephonic Testimony, denied Father's Motion to Continue, and denied Father's request to keep the record open so that Father could present deposition testimony. We will affirm the district court.

ISSUES

[12] Father presents three issues:

1. The District Court abused its discretion by rescinding the Order allowing [Father's] witnesses to testify by telephone at the time of trial (thereby excluding witnesses and evidence regarding the methamphetamine use of [Mother] and the exposure of the parties' minor child to the drug);
2. The District Court abused its discretion by denying [Father's] motion for a continuance after the Court rescinded its Order allowing his witnesses to testify by telephone; .
3. The District Court abused its discretion by refusing to keep the record open in order for [Father] to submit deposition testimony from the witnesses that were not allowed to testify by telephone.

Mother advances two issues:

1. Are the issues listed by [Father] relating to telephone testimony essentially moot because he has not appealed the trial court's oral ruling granting [Mother's] motion to strike those witnesses for other reasons?
2. Did the trial court abuse its discretion by denying [Father's] last-minute request to present witnesses by telephone or to continue the trial so as to allow supplementation of the evidence?

FACTS AND PROCEEDINGS

[13] Mother filed for divorcee on March 18, 2005, and, in doing so, requested custody of the parties' minor child, a son (RDD) born June 24, 2008. Mother was granted temporary custody of the child and Father was granted visitation.

[T4] The path to trial in this matter was a tortuous one. Several motions to continue were filed by both sides for varying reasons, travel to Europe and scheduling conflicts among them. Trial was finally reset for *391 December 6, 2005, and was stacked first on the docket. However, Father's counsel filed yet another Motion to Continue "because of other hearings" that were scheduled for the same morning. Mother's counsel objected, and a hearing was set on the Motion to Continue. The motion was granted, and trial was reset for February 8, 2006, at 9 a.m.

[T5] The parties continued to file motions, including a Motion to Reduce Time to Answer and Respond to Discovery filed by Mother. In large part this motion referred to positive results of drug tests performed on the child and declared that "[Father|'s counsel stated to the Court that [Father] has material and significant evidence that may or may not be important as to the custody of the child," "most or all of [the] evidence is outside of the State of Wyoming," and "Mother] believes that much of the evidence is probably adulterated, false, and misleading." Finally, Mother stated in her motion that she believed "[Father] is attempting to stall the above-entitled matter." Mother asked the court to order Father to answer discovery in a "shorter time," which the court did. 1

[16] On December 19, 2005, Mother filed a Motion for Order to Show Cause claiming that Father had not timely returned the child to Mother in compliance with the temporary custody order. Father responded to the motion and explained that, because he suspected Mother was using drugs, he had the child tested for exposure to methamphetamines, and the test came back positive. Because of the positive result, and other reasons, Father refused to return the child to Mother, who he believed was "abusing methamphetamine, cocaine, and other controlled substances." Mother filed a response denying Father's accusations.

[T7] The court found Father to be in contempt for violating the parties' custody order, for removing the child from the state, for refusing to return the child to Mother, and for refusing to pay child support.

[T8] The discovery issue remained unresolved, and Mother filed a motion to compel because "[Father] has failed to respond to said discovery." A hearing on the motion was set for February 24, 2006. However, Father served his Response to Plaintiff's Motion to Have Defendant Show Cause and to Modify Temporary Order on that same day, negating the necessity of a hearing.

[19] Eventually, after several postponements, the court scheduled the trial for May 17, 2006. On May 12, 2006, Father filed his Pretrial Statement, listing six expected witnesses. That same day, Father filed a motion requesting that most of his witnesses be allowed to testify by telephone because "... all of the witnesses ... are outside the State of Wyoming," and it would have been an "undue hardship" for the witnesses to appear in person. The day before trial, Mother objected to the motion, and filed a motion to strike the witnesses altogether, based on delays in obtaining discovery and Father's failure to provide a detailed description of the proposed witnesses' testimony in the pretrial statement. Apparently unaware of Mother's objection, the district court signed Father's proposed order granting the motion for telephonic testimony. ~

[110] After signing the order but prior to trial, the court reviewed the case file. The court was made aware of Mother's objection and reminded of Father's failure to comply with discovery requests and, accordingly, changed its mind on Father's motion for telephonic testimony, and on the day of trial, granted Mother's motion to strike Father's proposed witnesses. The court also denied Father's motion for telephonic testimony, denied Father's request for a continuance, and the trial proceeded. Ultimately, the court awarded custody of the child to Mother. This appeal followed.

STANDARD OF REVIEW

[T11]l We will not overturn a decision of the trial court unless we are convinced that it constitutes an abuse of discretion or violates some legal principle. Donnelly v. Donnelly, 2004 WY 72, ¶ 19, 92 P.3d 298, 306 (Wyo.2004). Judicial diseretion is a composite of many things, among which are conclusions drawn from objective *392 criteria. It means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Belless v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749, 750-51 (Wyo.2001).

[T12] Our review includes an evaluation of the evidence supporting the trial court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. We cannot sustain findings of fact that are not supported by the evidence, contrary to the evidence, or against the great weight of the evidence. An abuse of discretion is present when a material factor deserving significant weight is ignored. Donnelly, 119, 92 P.3d at 806.

DISCUSSION

Telephonic Testimony

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Forbis v. Forbis
2009 WY 41 (Wyoming Supreme Court, 2009)
Wunsch v. Pickering
2008 WY 131 (Wyoming Supreme Court, 2008)
Greener v. Killough
1 So. 3d 93 (Court of Civil Appeals of Alabama, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2007 WY 202, 173 P.3d 389, 2007 Wyo. LEXIS 216, 2007 WL 4395082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunsmore-v-dunsmore-wyo-2007.