Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] These combined appeals arise out of post-divorce proceedings. In No. S-11-0130, Father appeals the district court's order denying his petition to modify the parties' divorce decree, which granted mother primary physical custody of their minor child, and to grant him primary physical custody of their child. In No. S-11-0131, Father appeals the district court's order that he pay Mother $4,680 for attorney's fees and costs she incurred in defending Father's petition to modify custody. We affirm both orders.
[¶2] Father presents five issues for our review, which we have rephrased for the sake of simplicity as follows:
I. Whether the district court erred in finding unconstitutional a clause in the Stipulated Divorce Decree which provided that a move out of state by either party constituted a material change of circumstances sufficient to seek a modification of custody.
II. Whether the district court erred in finding there had not been a material change in circumstances to justify a change in custody.
III. Whether the district court erred in finding that a modification of custody would not be in the best interests of the child.
IV. Whether the district court reversibly erred in admitting hearsay statements of the child's treating physician and excluding certified copies of the criminal convictions of Mother's brother and her current spouse.
V. Whether the district court erred in awarding Mother reasonable attorney fees.
[¶3] The parties were married in September 2006 in Pinedale, Wyoming, and lived in that area at the time of their divorce in March 2009. Mother brought into the marriage a child from a previous relationship, and the parties' marriage produced one son, CJH, who was born in April 2007. The parties divorced in March 2009, and, pursuant to a Stipulated Decree of Divorce entered by the district court, the parties had joint legal custody of CJH, with Mother being the primary residential custodial parent subject to reasonable liberal visitation by Father. The decree included a relocation provision, which stated:
It is agreed that if one or the other parties move out of the state of Wyoming then for purposes of this agreement, the parties agree that such a move constitutes a material change of circumstance sufficient to seek a modification of this agreement.
[¶4] In October 2009, Mother, who was remarried and pregnant with her third child, informed Father of her intention to move with CJH to Driggs, Idaho. Father was residing in Daniel, Wyoming, as he had been for several years. On October 14, 2009, Father filed a petition requesting, among other relief, an order for custody modification granting him residential and physical custody of the parties' minor child, CJH. In the petition, Father alleged Mother's intention to move with CJH to Idaho and, referencing the relocation provision contained in their divorce decree, alleged that the move constituted a material change of circumstance warranting modification of custody. Father also alleged the occurrence of additional changes of circumstance and that those changes of circumstance warranted modification of custody.
[¶5] Mother timely responded to Father's petition, alleging, among other matters, that the relocation provision contained in their divorce decree was void and unenforceable; denying the occurrence of additional material changes of circumstance; and asserting a counterclaim which sought, among other relief, modification of Father's visitation and attorney's fees and costs.
[¶6] Mother and CJH moved to Driggs, Idaho, in November 2009, but moved back to Wyoming a few months later, in January 2010. In between Mother's move to Idaho and return to Wyoming, the district court held a hearing concerning temporary custody of CJH and determined that physical custody of the child should remain with Mother pending resolution of Father's petition. At that hearing, the district court expressed concern about the divorce decree's relocation provision and directed the parties to brief the issue whether that provision affected the court's subject matter jurisdiction to entertain Father's petition.
[¶7] In its decision letter issued on August 5, 2010, the district court ruled that it had jurisdiction to consider the merits of Father's petition. In particular, referencing the divorce decree's relocation provision, the court stated that it is bound to make an independent determination, after a hearing, as to whether [Father] has carried his burden of proving the existence of "a material change in circumstances" since entry of the Decree and whether "the modification . . . would be in the best interests of the children [sic] pursuant to W.S. 20-2-201(a)." [Emphasis in original.]
[¶8] On January 26 and 27, 2011, the district court conducted the hearing on Father's petition, receiving testimony and other evidence from both parties. As previously noted, although Mother had moved from the Pinedale area to Idaho in November 2009, which relocation was one of the changes of circumstance Father alleged warranted a custody modification, Mother had moved back to Wyoming a few months later in January 2010 and was living in Lander, Wyoming, at the time of the hearing. Also as previously noted, Father had lived in Daniel, Wyoming, for several years before filing his modification petition and was still living there at the time of the hearing. In addition to this circumstance, the parties presented testimony and evidence concerning Father's allegations of changed circumstances including Mother's instability for having moved several times within Wyoming, and having changed employment; Mother's keeping cats and dogs in her home despite CJH's allergies; Mother's husband having a criminal history and a diagnosed mental condition; Mother's having once exposed CJH to her former boyfriend who allegedly abused the child; and Mother's having occasionally left CJH at her parents' home where her brother, a registered sex offender, resided.
[¶9] In a lengthy decision letter dated February 9, 2011, and filed February 11, 2011, the district court issued its decision denying Father's petition for modification. On March 2, 2011, the court entered its order.
[¶10] Earlier, while the custody modification action was pending, Mother had filed a motion for an allowance of money to defend the action. The court denied that motion, as it explained in its decision letter filed January 18, 2011. Later, Mother renewed her motion for allowance of money to defend the action, supported by her attorney's affidavit. On February 22, 2011, the court filed its decision letter explaining its decision to award Mother the sum of $4,680.00 for costs and attorney's fees. On March 21, 2011, the court entered its order awarding that sum.
[¶11] The appellate process reduces itself to only three types of review: review of the sufficiency of the evidence to meet the required burden of persuasion at the trial level; review of the exercise of discretion; and plenary review of the choice, interpretation and application of the controlling legal precepts.
Ruggero J. Aldisert, Opinion Writing 53 (West Publishing Co. 1990).
[¶12] In this appeal, all three types of review may be applied, depending on the specific issue under discussion. With respect to Father's challenge to the district court's ruling that the divorce decree's relocation provision is unconstitutional, such an issue would normally receive plenary or de novo review. Hageman v. Goshen Cty. Sch. Dist. No. 1, 2011 WY 91, ¶ 5, 256 P.3d 487, 491 (Wyo. 2011). We have recognized, however, that a fundamental rule of judicial restraint requires us to forgo addressing a constitutional issue if we can resolve the case on other grounds. Wilson v. Bd. of Cty. Comm'rs of Cty. of Teton, 2007 WY 42, ¶ 14, 153 P.3d 917, 922 (Wyo. 2007); see also In re LePage, 2001 WY 26, ¶ 18, 18 P.3d 1177, 1181 (Wyo. 2001); Pisano v. Shillinger, 835 P.2d 1136, 1138 (Wyo. 1992); Wheeler v. Parker Drilling Co., 803 P.2d 1379, 1383 n.1 (Wyo. 1991); K N Energy, Inc. v. City of Casper, 755 P.2d 207, 210 (Wyo. 1988) (citing cases); and Schoeller v. Bd. of County Comm'rs of Park Cty., 568 P.2d 869, 879 (Wyo. 1977).
[¶13] With respect to the modification issues, we shall apply our usual standards for reviewing district court findings relating to the required material change of circumstances and the best interests of the children. Regarding the material change of circumstances, this Court has said:
"A district court's finding concerning a material change in circumstances is principally a factual determination to which we accord great deference." [In re TLJ, 2006 WY 28, ¶ 11, 129 P.3d 874, 877 (Wyo. 2006)], citing Yates v. Yates, 702 P.2d 1252, 1256-57 (Wyo. 1985). Our task is simply to determine whether, examining the record in the light most favorable to the successful party, the district court could have reasonably concluded as it did. Id.
Morris v. Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo. 2007).
[¶14] Our standard for reviewing the district court's findings relating to the best interests of the children is likewise a deferential review.
Decisions pertaining to child custody are within the sound discretion of the district court and will not be disturbed on appeal absent procedural error or a clear abuse of discretion. Selvey v. Selvey, 2004 WY 166, ¶ 15, 102 P.3d 210, 214 (Wyo. 2004). "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 and capriciously." Id. (quoting Fergusson v. Fergusson, 2002 WY 66, ¶ 9, 45 P.3d 641, 644 (Wyo. 2002)). In determining whether an abuse of discretion occurred, our core inquiry is the reasonableness of the district court's decision. Selvey, ¶ 15, 102 P.3d at 214 (citing Metz v. Metz, 2003 WY 3, ¶ 6, 61 P.3d 383, 385 (Wyo. 2003)). We view the evidence in the light most favorable to the district court's determination, affording to the prevailing party every favorable inference and omitting from our consideration conflicting evidence. Selvey, ¶ 15, 102 P.3d at 214 (citing GGV v. JLR, 2002 WY 19, ¶ 14, 39 P.3d 1066, 1074 (Wyo. 2002)).
In re TLJ, 2006 WY 28, ¶ 6, 129 P.3d 874, 876 (Wyo. 2006).
[¶15] A district court's evidentiary rulings are discretionary, and we review them as follows:
A trial court's decision on the admissibility of evidence is entitled to considerable deference, and will not be reversed on appeal unless the appellant demonstrates a clear abuse of discretion. As long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal.
Even if the district court admitted evidence in error, we must consider whether the error was prejudicial or harmless. Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made. Prejudicial error requires reversal, while harmless error does not.
Nelson v. State, 2010 WY 159, ¶ 29, 245 P.3d 282, 289 (Wyo. 2010) (quoting Reay v. State, 2008 WY 13, ¶ 8, 176 P.3d 647, 650 (Wyo. 2008)).
[¶16] Finally, with respect to the district court's decision to award attorney's fees, such decisions rest within the sound discretion of the district court, and this Court will not overturn the decision absent a clear abuse of that discretion. Black v. De Black, 1 P.3d 1244, 1252 (Wyo. 2000); Rocha v. Rocha, 925 P.2d 231, 234 (Wyo.1996).
[¶17] A court has "'only that authority to act which is conferred by the subject statute.'" Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 411 (Wyo. 2009) (quoting Bush v. State, 2003 WY 156, ¶ 9, 79 P.3d 1178, 1183 (Wyo. 2003)). In that regard, we have said that "[i]t is well settled that divorce is purely a statutory process, with courts having no authority in such proceedings other than that provided by statute." Weiss, ¶ 13, 217 P.3d at 412 (citing Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 956 (1937); 24 Am.Jur.2d Divorce and Separation § 7 (2008)). By statute, a custody order may be modified under certain defined circumstances:
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). In any proceeding in which a parent seeks to modify an order concerning child custody or visitation, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances.
Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2009) (amended 2011).
[¶18] As noted above, this Court has recognized the jurisdictional limits this statute places on the authority of a district court to modify a custody order.
This Court has construed this provision to require a two-step approach to custody modification actions. See KES v. CAT, 2005 WY 29, ¶ 10, 107 P.3d 779, 782 (Wyo. 2005); Jackson v. Jackson, 2004 WY 99, ¶ 8, 96 P.3d 21, 24 (Wyo. 2004); JRS v. GMS, 2004 WY 60, ¶ 10, 90 P.3d 718, 723 (Wyo. 2004); Cobb v. Cobb, 2 P.3d 578, 579-80 (Wyo. 2000). The first step requires a showing that there has been "a material change in circumstances since the entry of the order in question." § 20-2-204(c). Because of the res judicata effect afforded custody orders, such a finding is a threshold requirement. Hertzler v. Hertzler, 908 P.2d 946, 949-50 (Wyo. 1995). The district court does not properly acquire jurisdiction to reopen an existing custody order until there has been a showing of "a substantial or material change of circumstances which outweigh society's interest in applying the doctrine of res judicata" to a custody order. Kreuter v. Kreuter, 728 P.2d 1129, 1130 (Wyo. 1986). See generally Harshberger v. Harshberger, 2005 WY 99, ¶¶ 12-13, 117 P.3d 1244, 1250-51 (Wyo. 2005); Watt v. Watt, 971 P.2d 608, 613 ...