Appeal from the District Court of Hot Springs County. The Honorable Dan Spangler, Judge.
The opinion of the court was delivered by: Tyler, District Judge
Before GOLDEN, HILL, KITE, and BURKE, JJ., and TYLER, D.J.
[¶1] Expiration of the parties' negotiated child custody agreement, incorporated into the 2004 Judgment and Decree of Divorce, resulted in the filing of a contempt petition, an unsuccessful mediation, a two-day trial in the district court, and this appeal. Heather M. Zupan ("Mother") appeals the post-divorce order in which the district court found that, with slight changes, the best interests of the parties' children were being served by the existing shared custody and visitation plan; that no grounds to modify the prior custody arrangement existed; and, that John M. Zupan ("Father") was not in contempt for violating the Judgment and Decree of Divorce ("Decree"). The district court did not abuse its discretion in any of its findings and there were no procedural errors committed by the trial court. We will affirm.
[¶2] Mother states her appeal issues as follows:
I. Did the trial court commit error or abuse its discretion when it imposed a joint legal and shared custodial arrangement on the parties?
II. Did the trial court commit error or abuse its discretion in failing and refusing to consider evidence pertaining to the Appellee's relationship with his other children and grandchildren?
III. Did the trial court commit error or abuse its discretion in implementing a parenting plan which conditions a parent's custodial status on her continued residence in the same location as the other party?
IV. Did the trial court abuse its discretion by failing to find the Plaintiff/Appellee in contempt of Court?
Father characterizes the issues on appeal as follows:
I. Whether the trial court abused its discretion when it found it was in the children's best interests to continue with the parties' stipulated child custody agreement that had been in place since 2003.
II. Whether the trial court abused its discretion by failing to find the Appellee in contempt of court.
[¶3] The parties were married in June 1996. Two children were born to them during the marriage: NEZ, born in 1997, and CJMZ, born in 2000.
[¶4] Prior to completion of the divorce, the parties negotiated a Child Custody Agreement ("Agreement") which established joint legal custody with a shared custody and visitation arrangement. The Agreement provided that the parties would alternate residential custody of the children on an annual basis every July 15th. The shared custody plan began on November 1, 2003, and it expired upon its own terms on July 15, 2008. The Decree, filed on May 3, 2004, fully incorporated the parties' Agreement. Generally, the parties were able to make their custody and visitation arrangement work from its inception until near its expected natural termination.
[¶5] Built into the Agreement was a process aimed at resolving any disputes over custody when the Agreement expired: "At the end of the term of this agreement, if the parties are unable to agree regarding custodial arrangements after July 15, 2008, they will submit the matter to mediation before returning to the Court." Anticipating that the custody agreement would end in July 2008, Mother contends that she contacted Father about setting up mediation two different times -- once in 2005 and again in December 2007.
[¶6] On February 12, 2008, Mother filed her Verified Petition for Order to Show Cause ("contempt petition") asserting that Father should be found in contempt of court for disobeying the Decree, mainly due to his failure to engage in the mediation process as had been requested. The Order to Show Cause ("OTSC") required Father to appear before the district court in early May. At his initial hearing, Father denied violating the terms of the Decree and he requested a hearing.
[¶7] Mediation was scheduled pursuant to a stipulated order filed before Father's appearance on the OTSC. The parties and their attorneys engaged in mediation on June 5th, but it was not successful in resolving their custody disputes. The next day, after a telephone hearing "upon the failure of the parties to successfully mediate this matter," the district court entered an Order Granting Temporary Custody and Setting Notice giving Mother temporary custody of the children, subject to visitation by Father, until a determination could be made after a trial.*fn1 Specifically, the district court directed that "all pending matters, being the [Mother's] Petition for Order to Show Cause and determination for future custodial arrangements for the minor children shall come before the Court" for trial.
[¶8] A two-day trial was held on September 4 and 5, 2008.*fn2 On September 9, 2008, the trial court issued its Decision Letter. The Order Denying Contempt and Establishing Custody was filed on March 9, 2009.
[¶9] In essence, the district court found that the best interests of the parties' children were being served by the existing shared custody and visitation plan, with some modifications; that no grounds to modify the prior custody arrangement had been shown; and, that Father was not in contempt for violating the Decree. It is the Order Denying Contempt and Establishing Custody from which this appeal ensued.
Standard of Review -- Custody and Visitation Modification
[¶10] In the absence of clear and convincing evidence to the contrary, an agreement made and entered into, in anticipation of a divorce which has been incorporated or adopted by reference into a decree, is presumed to merge into the divorce decree and will no longer be in effect. Pauling v. Pauling, 837 P.2d 1073, 1078 (Wyo. 1992) (citing Phillips v. Phillips, 93 Idaho 384, 387, 462 P.2d 49, 52 (1969)); Witowski v. Roosevelt, 2009 WY 5, ¶ 23, 199 P.3d 1072, 1078-1079 (Wyo. 2009). In the present case, clear and convincing evidence shows that the parties intended that the terms and provisions of their Agreement would survive merger. The district court's findings and orders in the Decree support the parties' intent that the custody and visitation provisions in the Agreement would survive ...