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Weiss v. Weiss

October 9, 2009

GARY ALLEN WEISS, APPELLANT (DEFENDANT),
v.
KATHRYN BRINKMAN WEISS, APPELLEE (PLAINTIFF).,
KATHRYN BRINKMAN WEISS, APPELLANT (PLAINTIFF),
v.
GARY ALLEN WEISS, APPELLEE (DEFENDANT).



Appeal from the District Court of Teton County, The Honorable Nancy J. Guthrie, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1]These combined appeals arise out of post-divorce proceedings. In S-09-0030, Father appeals the district court's order that he pay Mother $135,000 for the attorneys' fees and costs she incurred in defending his motion to modify custody, and in S-09-0068, Mother appeals the district court's order changing child custody in a subsequent proceeding. Finding no abuse of discretion as to the first order, we will affirm it. Finding that the district court lacked jurisdiction to enter the second order, we will dismiss that appeal and remand with instructions to vacate the order changing custody.

ISSUES

[¶2] 1. Whether the district court abused its discretion in awarding Mother $135,000 in attorneys' fees and costs under Wyo. Stat. Ann. § 20-2-111 (LexisNexis 2009)?

2. Whether the district court had jurisdiction to enter an order modifying the child custody provisions of a divorce decree in the absence of a petition from either party/parent seeking such modification?

FACTS

[¶3] The issues in this case rest in its procedural development, rather than in the underlying facts, so it will be necessary for us to identify the major procedural steps shown in the record. Mother filed for divorce on September 30, 2005. The parties entered into a Property Settlement and Child Custody Agreement, which was filed on October 21, 2005. A Decree of Divorce based upon that settlement agreement was entered on October 24, 2005. Custody of the children was shared by the parties, with Mother having primary residential custody.

[¶4] On March 14, 2006, Father filed an Emergency Motion for Guardian Ad Litem and Emergency Motion for Temporary Custody to Defendant. An Order Appointing Guardian Ad Litem was entered on March 16, 2006. The parties then entered into a Stipulation of the Parties, filed on June 9, 2006, the terms of which were intended to supersede their prior agreement, although Mother continued to be the primary residential custodian. The district court entered an Order Adopting Stipulation of the Parties on June 16, 2006.

[¶5] On October 17, 2006, Father filed a Motion to Modify Custody, Re-Appointment of the Guardian Ad Litem and Motion for Hearing.*fn1 The guardian ad litem was reappointed by an order entered on October 30, 2006. Numerous discovery motions and orders, and other interim pleadings, including [Mother's] Motion for Review of Child Support Order, followed. On August 30, 2007, these disputes were resolved by the filing of an Amended Child Custody Agreement. The district court entered its Order Approving Amended Child Custody Agreement on October 19, 2007. Once again, Mother retained primary physical custody of the children.

[¶6] On January 24, 2008, Mother filed a Motion for (i) Attorney's Fees, (ii) Past Due Alimony, (iii) Reimbursement for Medical Expenses, Extracurricular Activities/School Fees, and (iv) Modification of Support. Father filed an objection to the reasonableness of the attorneys' fees, and a separate response to the entire motion. The matter was heard on October 8, 2008, and an Order followed on December 10, 2008. The district court awarded Mother attorneys' fees in the amount of $135,000 pursuant to Wyo. Stat. Ann. § 20-2-111, plus reimbursement by Father for medical expenses and extracurricular activities/school fees, the latter in unspecified amounts, but denied the request for past due alimony.*fn2 The district court also ordered the parties to file updated financial affidavits for consideration with regard to child support. Father's appeal of the December 10, 2008 order is before this Court in case number S-09-0030.

[¶7] The next pertinent document filed in this case was filed on December 30, 2008, not by one of the parties, but by the guardian ad litem. It is entitled "Notice of Filing Report of Dr. Steven Nelson Including Recommendations Regarding the Weiss Children and Motion by Guardian Ad Litem for Implementation of the Recommendations." On December 31, 2008, without notice to Mother, the district court entered its Order Accepting and Adopting the Recommendations of Dr. Steven Nelson and the Guardian Ad Litem and Transferring the Residential Custody of [the Parties' Children] to Their Father, Gary Weiss." The effect of that order, as its title suggests, was modification of the existing custody decree, changing custody of the children from Mother to Father, despite the absence of any petition to modify filed by either party/parent. Mother filed a belated response on January 5, 2009, which the district court set for hearing. After a hearing on January 28, 2009, the district court entered an Order for Change of Custody, transferring primary residential custody of the children to Father. Mother's appeal from that order is before this Court in case number S-09-0068.

DISCUSSION

Whether the district court abused its discretion in awarding Mother $135,000 in attorneys' fees and costs under Wyo. Stat. Ann. ...


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