Smith v. Kelly

442 P.3d 297
CourtWyoming Supreme Court
DecidedJune 4, 2019
DocketS-18-0220
StatusPublished
Cited by7 cases

This text of 442 P.3d 297 (Smith v. Kelly) 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
Smith v. Kelly, 442 P.3d 297 (Wyo. 2019).

Opinion

GRAY, Justice.

[¶1] Two years after entry of an Order Approving Stipulation on Paternity, Custody and Visitation, Jacob A. Smith (Father) filed a complaint to modify custody claiming there was a material change in circumstances. After a two-day hearing on the matter, the district court determined there had been no material change and denied Father's complaint. He appeals from that decision. We affirm.

ISSUE

[¶2] We consolidate the issues presented by Father into a single issue:

Did the district court abuse its discretion when it determined no material change of circumstances occurred?

FACTS

[¶3] In March 2013, Corinda D. Kelly (Mother) and Father had a brief sexual encounter. At the time, Mother was dating Mr. Kelly. When Mother discovered she was pregnant, she believed Mr. Kelly was the father of the child. The child, D, was born on December 3, 2013. Mother and Mr. Kelly married the same month. Shortly after D's birth, genetic testing established Mr. Kelly was not D's biological father. Mother immediately informed Father of the results. Mother, D, and Mr. Kelly moved to Florida in the spring of 2014. In August 2014, Mother and D returned to Wheatland, Wyoming, and moved in with D's maternal grandmother.

[¶4] Father lived in Torrington with his mother and stepfather. Shortly before Mother and D returned to Wyoming, Mother contacted Father to ask if Father wanted to be part of D's life. Father said yes and on October 24, 2014, filed a Petition to Establish Paternity, Custody and Support. Subsequently, Mother and Father filed a stipulated agreement establishing joint legal custody with Mother having primary residential custody. The stipulation contained a visitation schedule and child support calculations, along with other arrangements for D's care and financial well-being. On August 11, 2015, the district court entered an order approving the stipulation.

[¶5] Father filed a complaint to modify the order on custody and visitation on September 15, 2017. Father alleged there had been a change in circumstances due to Mother's instability, referencing her numerous jobs, numerous addresses, numerous romantic relationships, and her emotional volatility. He also claimed the home was unsafe due to the presence of various pets and Mother's failure to clean the house.

[¶6] The district court heard evidence on the modification of custody on May 21 and *29922, 2018. Mother, Father, maternal grandmother, paternal grandmother, Mother's doctor, and two of D's daycare providers testified. The evidence established Mother, Father, and their parents, worked together to raise D. There were no visitation issues. When the visitation schedule needed to be changed, Mother and Father cooperated with each other to make sure D could spend quality time with both parents. If necessary, the grandparents would assist with babysitting and facilitate exchanges for visitation. When D was upset about leaving Mother for visitation, Mother would talk to D about all the fun things D would do with Father until D was eager to begin the visit. Mother and Father communicated regularly about D's health, school, emotions, and other information parents share regarding their child. There is no question that D is surrounded by loving parents and family.

Mother's Jobs

[¶7] During the period from the 2015 stipulated order until the 2018 hearing on Father's motion to modify custody, Mother held five different jobs. Her first three jobs did not include any benefits. In March 2016, she accepted her fourth job because she believed it would be full-time employment with benefits. She worked at this job for several months, but when she did not get the promised hours and benefits, she accepted her current full-time position which provides health, dental, vision and life insurance, as well as a 401(k). During the relevant time, there was only one two-week gap in employment.

Mother's Residences

[¶8] Mother also lived in four different locations from 2015 to the present. She and D lived in a one-bedroom duplex for almost two years before moving to the other half of the duplex (the landlord had remodeled it and planned to do the same for the side Mother was renting). Next, Mother and D moved to a two-bedroom trailer house with a fenced backyard and a laundry building. She then moved to the two-bedroom house where she and D currently reside. During this time, Mother owned various pets. There were times when the residences were dirty or unkempt. When Father would pick D up, he also took pictures of the house with dirty dishes, soiled laundry, or other indications of uncleanliness.

Mother's Relationships

[¶9] Mother has had several romantic relationships since the district court's custody order. In the late spring of 2015, Mother began dating Mr. O. In May 2016, after the couple became engaged, Mother and Mr. O got into a fight. He threw Mother against a pantry door and then pressed his arm against her collar bone and neck. Mother returned the engagement ring and told Mr. O to "pack his stuff and leave." The physical assault left Mother with bruises on her arm and neck and a sore back. D was visiting Father and was not present during the altercation. When Mother went to get D from Father, she told Father about the incident and said her back hurt when she lifted D.

[¶10] After the incident with Mr. O, Mother had two other dating relationships before meeting Mr. W, her last boyfriend, who she began dating in March 2017. In April or May, Mr. W told Mother he had an upcoming court date because his prior girlfriend had accused him of abuse, even though it was merely "rough play." Mother testified she didn't know what to believe, but she wanted to give Mr. W the benefit of the doubt.

[¶11] Two incidents involving Mr. W are at the core of Father's argument on appeal. The first incident occurred on May 18, 2017. Mother testified she left the home for a short period to assist a co-worker. When she returned, D was wrapped in a bath towel and there were tear streaks on D's face. D's buttocks were bruised. When Mother asked Mr. W what happened, he told her he didn't know, but "assumed" D had fallen on some toy dinosaurs while getting out of the tub. Mother asked D what happened, and D replied, "I don't know." She asked D if he was spanked, but D said "no." Mother testified she was suspicious of Mr. W's story, but could get no further information despite repeatedly questioning D. She told Mr. W she did not trust his story and he wasn't to be alone with D or to administer punishment.

*300[¶12] Mother sent a text to Father the next day stating D had bruised buttocks from falling on a toy dinosaur. She did not tell Father she was not home at the time of the injury, nor did she relate any suspicions about Mr. W. Father took D for visitation and photographed the bruises.1 At the hearing, Father testified he did not know who caused the bruising, Mother or Mr. W, but he didn't believe D fell on a toy dinosaur "for a minute." Even so, Father never mentioned the incident or his concerns to Mother or Mr. W. There was no evidence similar incidents occurred while Mr. W was in the home.

[¶13] The second incident is the culmination of a series of events. In August 2017, Mother became pregnant with Mr. W's child.

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Bluebook (online)
442 P.3d 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-kelly-wyo-2019.