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, and BURKE, JJ.
[¶1] Chad Davis (Father) and Wendy Willis f/k/a Wendy Davis (Mother) were divorced by decree awarding Father primary physical custody of the children and giving Mother liberal visitation. A year later, Father filed a motion for an order requiring Mother to show cause why she should not be held in contempt for violating provisions of the decree. Mother responded with her own motion for an order requiring Father to show cause why he should not be held in contempt for decree violations. In her motion, Mother also requested custody modification.
[¶2] After a hearing, the district court entered an order declining to hold either party in contempt and denying Mother's request for custody modification. Mother did not appeal from that order. Nine days later, Mother filed a motion to modify custody. Father moved to dismiss arguing that the motion was barred by the doctrine of res judicata because the district court had just heard and ruled on a request by Mother for custody modification. The district court granted the motion to dismiss. Mother appeals to this Court claiming res judicata did not apply and the dismissal of her custody modification motion violated her right to due process. We affirm.
[¶3] Mother presents a single issue on appeal:
Whether the district court erred when it applied the doctrine of res judicata to [her] Motion to Modify Custody.
[¶4] The parties were married on August 12, 2000. They had two children, the first in 2003 and the second in 2005. Father filed for divorce in 2007. The district court granted the divorce and awarded the parties joint legal custody of the children, Father primary physical custody and Mother liberal visitation. The district court's decision letter, which the decree incorporated, contained several provisions requiring Mother and Father to cooperate, keep each other informed about matters involving the children and refrain from acting in ways detrimental to the children's relationship with the other parent.
[¶5] In October of 2008, six weeks shy of a year from entry of the decree, Father filed a motion for an order requiring Mother to show cause why she should not be held in contempt of court for violating certain provisions of the decree. He alleged that in contravention of the decree Mother had been taking the children to a counselor without informing him and refused to disclose the nature of the counseling or authorize the counselor to discuss it with him. He also alleged Mother had made derogatory comments about him in the children's presence and made exchanges of the children difficult.
[¶6] In response, Mother denied Father's allegations and filed her own petition for an order requiring him to show cause why he should not be held in contempt for his alleged acts in contravention of the decree, including moving the children to a different daycare and refusing to disclose the name or location, changing the youngest child's preschool without consulting her in order to prevent her and her family from spending time there with the child, and interfering with communication between Mother and the children by taping their telephone conversations. Father denied Mother's allegations and, several months later, filed a supplement to his motion to show cause in which he alleged additional violations of the decree by Mother. Mother filed a response in which she denied the new allegations and asked for modification of custody.
[¶7] Five months later and almost a year after Father filed the original contempt motion, the district court held a hearing during which both parties presented evidence. Following the hearing, the district court issued a decision letter declining to find either party in contempt but requiring the parties to attend a parenting workshop and begin counseling. The district court further found "that the facts before it do not support a material change of circumstances" warranting a change in custody. On October 14, 2009, the district court entered an order consistent with its decision letter. Mother did not appeal the district court's order.
[¶8] Nine days later, on October 23, 2009, Mother filed a motion to modify custody in which she alleged there had been a material change of circumstances "including but not limited to [Father] not properly communicating with [Mother] regarding the children, manipulation of the children by [Father], the actions of [Father's] live-in girlfriend unreasonably seeking a protection order against [Mother] to prevent her from going to the children's school and daycare facilities, the immoral behavior and lifestyle of [Father] continuing to reside unwed with another woman, and various other general health and welfare concerns of the children being in [Father's] custody." Father filed a motion to dismiss Mother's motion pursuant to W.R.C.P. 12(b)(1), asserting that the district court had just decided modification was not warranted in its October 14, 2009, order, Mother's motion did not allege any new facts warranting modification and the doctrine of res judicata barred her motion.
[¶9] Mother responded, asserting the parties were not on notice that the issue of custody modification would be fully adjudicated during the earlier contempt hearing, no evidence was presented concerning modification at the earlier hearing and her right to due process would be violated if the court dismissed her most recent motion for custody ...