Appeal from the District Court of Park County, The Honorable Steven R. Cranfill, Judge.
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] When shared physical custody of their child failed, Kari Jo Roemmich (Mother) filed a petition for custody modification seeking primary physical custody of the child with reasonable visitation for Shane Christopher Roemmich (Father). After a hearing on the petition, the district court awarded Father primary physical custody with reasonable visitation by Mother and ordered Mother to pay child support. Mother appeals the district court's order raising a number of claims, including error in awarding custody to Father. We affirm the district court's custody determination, but remand for further proceedings on the issues of visitation and child support.
[¶2] Mother asserts the district court committed error or abused its discretion in the following ways:
1. Granting custody to Father when he did not file a counter-petition for custody;
2. Failing to strike Father's witnesses and exhibits after he did not disclose them to Mother as agreed and in a timely fashion;
3. Granting custody to Father after a stalking protection order was entered against him;
4. Granting custody to Father on the basis of findings concerning Mother's employment that were contrary to the evidence;
5. Failing to order visitation in sufficient detail to promote understanding and compliance; and
6. Ordering child support with no evidence of the parties' incomes.
Father asserts the district court did not abuse its discretion in granting custody to him or figuring child support.
[¶3] Father and Mother were married on July 1, 2000, in Cody, Wyoming. In 2003, they had a child. They were divorced by decree entered in April of 2009. In accordance with the parties' agreement, the decree provided that Mother and Father would have joint legal care, custody and control of the child, with each parent having physical custody of the child for one week and visitation the following week.
[¶4] On June 15, 2009, Mother filed a petition for modification of custody in which she alleged that substantial changes in circumstances had occurred warranting modification of the decree, including that Father had berated and harassed her in front of the child, Father had been stalking her to the point that she had filed for a protective order and the shared physical custody arrangement was not in the child's best interest. Mother also filed a motion seeking temporary custody of the child pending a decision on her modification petition. The following day, on June 16, 2009, the district court set the temporary custody motion for hearing on June 19, 2009.
[¶5] On June 18, 2009, Father filed a motion to continue the temporary custody hearing, asserting insufficient time to prepare his case. The district court granted the motion and continued the hearing until July 10, 2009. On the day the hearing was to be held, Father filed a response to Mother's motion for temporary custody in which he alleged that no material change in circumstances had occurred since entry of the original decree and it was not in the child's best interest to award temporary custody to Mother. He also filed a response to Mother's custody modification petition in which he denied berating or harassing her in front of the child and denied stalking her but admitted the shared custody arrangement was not in the child's best interest.
[¶6] For reasons that do not appear in the record, no hearing was held on July 10, 2009. By order dated July 15, 2009, the district court rescheduled the temporary custody hearing for July 20, 2009. A hearing was held on July 20, however, the matter heard was Mother's petition for custody modification, not the temporary custody motion. After two days of testimony, the district court issued a decision letter in which it concluded it was in the child's best interest for Father to have primary physical custody. The district court entered an order to that effect and also ordered that Mother was to have visitation with the child every other weekend beginning August 28, 2009, and was to pay Father child support in the amount of $279.00 per month. Mother appealed from the district court's order.
[¶7] We review a district court's order on a petition to modify custody, visitation, and child support for an abuse of discretion. Inman v. Williams, 2009 WY 51, ¶ 9, 205 P.3d 185, 191 (Wyo. 2009).
We will not interfere with the district court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion. In determining whether the district court has abused its discretion, we must decide whether it could reasonably conclude as it did. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.
Id., quoting Selvey v. Selvey, 2004 WY 166, ¶ 15, 102 P.3d 210, 214 (Wyo. 2004).
1. Requirements for Modifying Joint Custody
[¶8] Mother asserts the district court abused its discretion in awarding primary physical custody of the child to Father when he did not file a pleading seeking custody but instead merely filed a response to her petition. She claims his response did not give her adequate notice that he was seeking custody. Father responds that once Mother filed a petition for modification alleging a material change in circumstances, the district court was required to determine what custodial arrangement was in the best interest of the child. Father contends the district court was required to make that determination regardless of the pleading he filed in response to the petition. Father argues that because he agreed that the shared custody arrangement had failed, a material change in circumstances existed as a matter of law and the district court was left to decide which parent should have custody based upon the child's best interest.
[¶9] Mother filed her petition pursuant to Wyo. Ann. Stat. § 20-2-204 (LexisNexis 2009), which provides in pertinent part as follows:
§ 20-2-204. Enforcement and modification.
(a) Either parent may petition to enforce or modify any court order regarding custody and visitation.
.... (c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a).
[¶10] We construed this provision in Gaines v. Doby, 794 P.2d 566, 570 (Wyo. 1990), in the context of the parents' requests to modify visitation, child support and medical insurance provisions in the original divorce decree. Father filed a petition to modify the divorce decree to clarify his visitation rights, asserting that Mother had failed to allow reasonable visitation in accordance with the decree. Mother responded with a cross-petition to modify the child support and medical insurance provisions of the decree alleging that circumstances had changed in that she was no longer working. The district court modified the visitation provision and Mother appealed to this Court claiming the district court erred in doing so because Father had not shown a change in circumstances supporting the modification. We said:
[T]he parties willingly presented and tried to the court the modification issues relating to visitation and medical insurance. Since the parties induced the district court to act by their motions to modify these provisions of the original divorce decree and by their litigation posture at the hearing on the motions, neither of them can be heard on appeal to argue error based upon that action.
We determine that the district court could reasonably conclude from the evidence that the parties wanted it to exercise its revisory powers with respect to the visitation ...