Matter of TRG

665 P.2d 491, 1983 Wyo. LEXIS 337
CourtWyoming Supreme Court
DecidedJune 14, 1983
DocketC-83-1, C-83-2
StatusPublished
Cited by25 cases

This text of 665 P.2d 491 (Matter of TRG) 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
Matter of TRG, 665 P.2d 491, 1983 Wyo. LEXIS 337 (Wyo. 1983).

Opinions

ROSE, Justice.

This appeal concerns a case in which the district court judge, over the objection of the natural mother, entered judgments [492]*492awarding temporary — and then, as a sanction, permanent — custody of a 19-month-old child to BMG, a putative father whom the court found to be the parent of the child. These findings, holdings and judgments were made and entered contrary to the statutes provided for such matters. This being so, the court acted in excess of its jurisdiction and the judgments are therefore void.

'We will reverse.

FACTS

On April 12, 1982 the appellee BMG, putative father, filed a petition under the Wyoming Uniform Parentage Act, §§ 14-2-101 through 14-2-120, W.S.1977,1 for the purpose of adjudicating the existence of a father/child relationship between himself and TRG, the minor daughter of JHL, the appellant-respondent mother and for the further purpose of deciding who should have custody of the child. Appellee was not the presumed natural father of the child, as contemplated by § 14-2-102, W.S. 1977.2

At the time the petition was filed, TRG was approximately 19 months old and had— since birth — resided with JHL, her natural mother. On April 13, 1982, a notice of setting issued from the district court scheduling an “informal” hearing, under § 14-2-108, W.S.1977, for 9:00 a.m., May 10, 1982, the purpose of which was, according to the notice, to conduct the “informal hearing as to the question of paternity.” It was further provided that the petitioner’s motion for temporary custody would be heard immediately thereafter.

Appellant mother’s first attorney received the notice of setting and mistakenly informed his client that the hearing was scheduled for 10:00 a.m. rather than 9:00 a.m. on May 10. Appellant appeared with her attorney at 10:00 a.m. that day, only to [493]*493learn that a judgment had been authorized and was entered, holding and providing that BMG was the natural father of the minor child and that it was in the child’s best interest that temporary custody be vested with him. The Sheriff of Natrona County was ordered to deliver the child to BMG, the putative father.

No record of these proceedings was kept as required by statute. § 14-2-108, W.S. 1977.3 Therefore, for purposes of this appeal, this court is forced to proceed upon the assumption that there is no testimony or evidence supportive of the judgment which emanated from the proceedings of May 10, 1982.

The attorney for the mother filed motions tp vacate, stay, and amend the judgment, and to vacate the award of temporary child custody. On May 28, 1982 appellant’s motions were brought before the district court but were denied on the grounds that the appellant had failed to produce evidence showing there to be a factual basis upon which she might prevail if the judgment were vacated, and for the further reason that she had yet to deliver the child to the petitioner in accordance with the judgment of May 10, 1982.

Meanwhile, on May 13, 1982 the putative father filed a petition to cite the mother for contempt of court for having failed to deliver the child to him. Further, he had his lawyer employ the services of a private investigator to conduct surveillance of the child’s mother and the members of her family, all for the purpose of determining the whereabouts of the child.

On June 16,1982, the little girl was seized from her babysitter by the Natrona County Sheriff and delivered to the putative father. At a hearing on June 24, 1982, the district court judge found appellant in contempt of court for “willfully disobeying” the order of May 10,1982 and ordered that, prior to any final hearing in the matter, she would have to pay the putative father’s attorney’s fees and investigator’s fees in the amounts of $1,645.12 and $2,638;69, respectively.

On May 18,1982 appellee’s counsel served interrogatories upon the mother’s attorney. The first lawyer’s services were terminated on June 1, 1982 whereupon he forwarded the interrogatories to the mother’s second attorney. The answers to the interrogatories had not been filed by August, in consequence of which failure to respond the at-, torney representing the putative father filed a motion to compel discovery. On September 14, 1982 a hearing was held via telephone conference call with the court together with the lawyers for both the petitioner and the respondent, at which time the mother was directed to answer the interrogatories no later than September 24, 1982. Despite her full cooperation, the mother’s lawyer failed to serve the answers to interrogatories upon appellee’s counsel as ordered by the court. During a second com ference call with the court and opposing counsel on November 12,1982, the mother’s attorney confessed that the fault for failing to answer the interrogatories was entirely his and that his client was absolutely blameless. Unimpressed with this state of affairs, the district court judge thereupon entered a default against the appellant and awarded permanent custody of the child to the appellee as a sanction for her failure to answer the interrogatories. A final order was filed December 16, 1982.

On December 23, 1982 appellant’s third attorney, who in all respects has pursued1 the best interests of his client and who ably brings this appeal in the mother’s behalf, filed a motion to set aside the default judgment. A notice of setting was issued by the' clerk of the district court on December 28, setting the motion for hearing on January 27, 1983. In order to perfect her appeal from the court’s final order filed December 16, 1982, appellant filed a notice of appeal on December 30, 1982.

At the motion hearing of January 27, 1983, the district judge held that the child’s mother was prohibited from taking an appeal from the court’s order filed December 16, 1982 while the motion to set aside the default judgment was pending, for the rea[494]*494son that her filing of the notice of appeal had the effect of depriving the district court of jurisdiction. The district court went on to hold that it would hear no arguments and take no evidence in support of the appellant’s Rule 60(b), W.R.C.P.4 motion and dismissed the motion by order dated February 1, 1983. Present at the hearing were the appellant and the attorney who failed to file the response to interrogatories. This attorney would have testified, had he been given the opportunity, that the mother fully cooperated with him in preparing answers to the interrogatories, not once, but twice, and that through his sole neglect the answers had not been filed and served upon the putative father. Had it been permitted, the testimony would have further shown that appellant had no knowledge of the continuing controversy concerning the interrogatories despite her repeated and mostly unsuccessful attempts to contact her lawyer with respect to the status of her case.

A second notice of appeal was thereafter filed, notifying of the appellee’s intention to appeal the trial court’s order of February 1, 1983.

The appellant identifies the issues on appeal as follows:

“A. Whether a putative father in a paternity action filed under the Wyoming Uniform Parentage Act is entitled to an award of temporary custody?
“B.

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Bluebook (online)
665 P.2d 491, 1983 Wyo. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-trg-wyo-1983.