Fml v. Tw

2007 WY 73, 157 P.3d 455, 2007 Wyo. LEXIS 79, 2007 WL 1288785
CourtWyoming Supreme Court
DecidedMay 3, 2007
DocketC-06-7
StatusPublished
Cited by14 cases

This text of 2007 WY 73 (Fml v. Tw) 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
Fml v. Tw, 2007 WY 73, 157 P.3d 455, 2007 Wyo. LEXIS 79, 2007 WL 1288785 (Wyo. 2007).

Opinions

HILL, Justice.

[T1] Appellant, FML (hereafter Mother), seeks review of an order of the district court which granted TW's (Father's) Motion to Modify Custody. Father based his motion principally upon an assertion that Mother had actively and persistently interfered with his right of visitation with SMW (the parties' child, born January 1, 2005). The district court granted Father's motion. Mother contends that the district court erred in placing more weight on Mother's violations of the initial custody/visitation order than it did on other factors affecting the best interests of the child as set forth in Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2005). 1 Mother also contends that the district court erred by failing to establish visitation that includes details necessary to promote understanding and compliance as required by Wyo. Stat. Ann. § 20-2-202(a) (LexisNexis 2005)2 We [457]*457will affirm the trial court's order to the extent it modified custody, but remand for the purposes of clarifying the details on visitation as required by the governing statute and for a determination of child support to be paid by Mother, unless the district court has already done so. As a prefatory matter we will, on our own motion, address whether or not the order from which the appeal was taken is an appealable order as contemplated by W.R.A.P. 1.05.

ISSUES

[¶ 2] Mother raises these issues:

A. Did the trial court commit reversible error by failing to establish visitation that includes details necessary to promote understanding and compliance as required by Wyo. Stat. Ann. § 20-2-202?
B. Did the trial court abuse its discretion by placing more weight on the Mother's violation of the existing order than other factor's affecting the best interests of the child as set forth by Wyo. Stat. Ann. § 20-2-101(a)?

Father raises this issue:

1. Is there sufficient evidence to affirm the district court's decision to award primary custody to Father?

FACTS AND PROCEEDINGS

[T3] Based upon the record on appeal that was received by this Court, we are only able to provide a sketchy history of this case. This matter appears to have been initiated when the State of Wyoming, Department of Family Services, ex rel. SML, filed a Petition to Establish Support on February 28, 2005. As an adjunct of the proceeding, Father sought to establish a visitation schedule. An order entered on June 16, 2005, established the child's paternity in Father and established a detailed visitation schedule. The record on appeal indicates that both parents are fit parents.

[¶ 4] On July 15, 2005, Father filed a Motion for Order to Show Cause asserting that Mother refused to comply with the visitation schedule established by the district court. The district court entered such an order on July 25, 2005, and set it for hearing on August 11, 2005. After that hearing, 'Mother was ordered to allow Father additional compensatory visitation. On January 27, 2006, Father filed a Motion to Modify Custody and Motion for Order to Show Cause. Father again asserted that Mother had denied or interfered with his right of visitation and that Mother had moved to Kansas without notice to Father. This matter was set for hearing on April 20, 2006, and the hearing was held on that date. In a decision letter entered in the record on June 29, 2006, the district court made these general findings which were iterated in the appeal-able order: 3

1. That [Father], the father of [Child], and [Mother] were never married but that [Child] was born of that union.
2. That the State ... attempted to establish child support and filed a Petition in District Court on February 28, 2005 and as a result of an Order signed by this Court on 16 June, 2005, [Father] was established as the natural father of [Child].
3. That on the 15th day of July 2005, the father filed his Motion for Order to Show Cause to hold [Mother] in contempt for her failure to follow the necessary order concerning visitation.
4. That this Court, after hearing, determined that ... [Mother] had frustrated the visitation schedule and ordered that [Father] was to have an additional 28 hours of visitation.
5. That on January 27, 2006, [Father] filed his Motion to Modify Custody on the basis that [Mother] has repeatedly denied or interfered with his visitation to such a degree that it constituted a material change of cireumstances.
6. That ... [Mother] moved to Lawrence, Kansas, without notification to ... [458]*458[Father] and only contacted [him] after she had been in Kansas for several months.
7. That ... [Mother] failed to provide any type of telephone or cell phone numbers or street address to Father so visitation could be arranged.
8. That ... [Mother] by failing to comply with and allow visitation as ordered by the Court has frustrated the visitation by ... [Father] in this matter which rises to the level of a material change of cireum-stances.
Therefore, this Court CONCLUDES:
1. That there has been a material change of circumstances sufficient to justify a change of custody of [Child] from [Mother] to [Father] and that this change of custody should take place within thirty (30) days of the order of this Court.
2. That Mother should have liberal visitation and that each party should submit their necessary financial affidavits to the Big Horn Basin Child support Authority for determination of payment of child support for the Mother to the Father.

DISCUSSION

Appealable Order

[T5] Whether the order from which this appeal was taken was an appeal-able order became an issue which this Court determined was necessary to consider on its own motion. W.R.A.P. 1.05(a) provides:

1.05. Appealable order defined.
An appealable order is:
(a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or
(b) An order affecting a substantial right made in a special proceeding; or
(c) An order made upon a summary application in an action after judgment; or
(d) An order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(d) and (5), Wyo. R. Civ. P .; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party; or
(e) Interlocutory orders and decrees of the district courts which:
(1) Grant, continue, or modify injune-tions, or dissolve injunctions, or refuse to dissolve or modify injunctions; or
(2) Appoint receivers, or issue orders to wind up receiverships, or to take steps to accomplish the purposes thereof, such as directing sales or other disposition of property.

(See Rule 13 for additional guidance on review of interlocutory orders.) [Emphasis added.]

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Bluebook (online)
2007 WY 73, 157 P.3d 455, 2007 Wyo. LEXIS 79, 2007 WL 1288785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fml-v-tw-wyo-2007.