Wood v. Wood

424 P.3d 247
CourtWyoming Supreme Court
DecidedAugust 20, 2018
DocketS-18-0025
StatusPublished
Cited by5 cases

This text of 424 P.3d 247 (Wood v. Wood) 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
Wood v. Wood, 424 P.3d 247 (Wyo. 2018).

Opinion

FOX, Justice.

*248[¶1] Kimberly Mary Wood (Mother) moved the district court for an ex parte order granting her emergency custody of her two children. The district court denied her motion and she appeals. We conclude that the district court's order denying Mother's motion is not an appealable order and dismiss her appeal.

ISSUES

[¶2] We adopt Father's issues, rephrased as:

1. Is the order from which Mother appeals an appealable order?
2. Is Father entitled to sanctions because there is no reasonable cause for Mother's appeal?

FACTS

[¶3] Mother and Neil Ray Wood (Father) divorced in 2014. The district court awarded Father custody of the two children: NSW, born in 2003, and ERW, born in 2006. In November 2017, Mother filed a "Motion for Ex-Parte for Emergency Custody" [sic]. Mother alleged that NSW had been expelled from school, Father had abandoned NSW by sending him to live with his paternal grandmother, and Father was alienating the children from her. On these grounds, she asked for "emergency custody" of NSW and ERW. Mother never served the motion on Father or his counsel. The district court denied the motion in a two-sentence order, which Mother now appeals.

DISCUSSION

[¶4] Mother alleges that the district court did not follow Wyoming law or consider the best interests of the children "when making [its] decisions throughout these proceedings," and that the order was either clearly erroneous or contrary to the great weight of the evidence. She requests this Court grant her a modification of custody, visitation, and child support. Father contends that the order is not an appealable order and requests this Court dismiss the appeal, sanction Mother, and order her to reimburse him for fees and costs incurred to defend the appeal.

I. Is the order from which Mother appeals an appealable order?

[¶5] We first examine the threshold question of whether we have jurisdiction to consider Mother's appeal. "Whether a court has jurisdiction is a question of law to be reviewed de novo ." Hamilton v. Hamilton , 2010 WY 35, ¶ 5, 228 P.3d 51, 52 (Wyo. 2010) (quoting SEG v. GDK , 2007 WY 203, ¶ 4, 173 P.3d 395, 395 (Wyo. 2007) ). We may review an order from a district court only if it is "appealable." W.R.A.P. 1.04(a) ; Hamilton , ¶ 5, 228 P.3d at 51. An appealable order is "an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment." W.R.A.P. 1.05(a). We have held that an appealable order under Rule 1.05(a) has "three necessary characteristics[:] It must affect a substantial right, determine the merits of the controversy, and resolve all outstanding issues." Waldron v. Waldron , 2015 WY 64, ¶ 14, 349 P.3d 974, 977 (Wyo. 2015) (citations omitted); see also Womack v. Swan , 2018 WY 27, ¶ 19 n.4, 413 P.3d 127, 136 n.4 (Wyo. 2018) ("[A] judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is not appealable unless it does those things." (citations omitted) ).

[¶6] A temporary custody order is not appealable because it leaves any final custody determination open for future consideration. See , e.g. , Book v. Book , 59 Wyo. 423, 141 P.2d 546, 548 (1943). A temporary custody order-which may be entered under Wyo. Stat. Ann. § 20-2-112(b) or under the district court's inherent equitable powers-is "intended to survive only 'during the pendency *249of the action.' " Womack , 2018 WY 27, ¶ 14, 413 P.3d at 134 (citing Wyo. Stat. Ann. § 20-2-112(b) ). Because of its limited duration, a temporary custody order cannot resolve all outstanding issues.

[¶7] A district court resolves all outstanding issues of a requested custody modification only under the authority of Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2017), which sets out the requirements for a district court to reconsider a settled custody determination. Although Mother, on appeal, asks for custody modification, she did not make that request in the district court. The motion from which Mother appeals can be interpreted only as seeking temporary custody modification. It was not made pursuant to Wyo. Stat. Ann. § 20-2-204(c), but plainly requested only an "ex parte" order granting "emergency" relief, as evidenced by the motion's title ("Motion for Ex-Parte for Emergency Custody" [sic] ). In the body of the motion, Mother specifically moved the district court "to grant me emergency custody" of the children. Mother did not serve the motion on Father or his counsel, in accordance with her request that the district court enter the order ex parte-a procedure reserved for temporary relief in extraordinary circumstances. Without notice to the other party, "a trial court may ... [only] enter an order temporarily modifying custody of a child." Weissman v. Weissman , 102 So.3d 718, 721 (Fla. Dist. Ct. App. 2012) (citations omitted) (emphasis added).

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