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Jeffrey R. Arnott v. Paula A/K/A Polly A. Arnott

December 28, 2012

JEFFREY R. ARNOTT, APPELLANT (DEFENDANT),
v.
PAULA A/K/A POLLY A. ARNOTT, APPELLEE (PLAINTIFF).



Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

The opinion of the court was delivered by: Burke, Justice.

No. S-12-0089

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

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] Appellant, Jeffrey Arnott (Father), challenges the district court's order denying his petition for modification of the parties' divorce decree, which granted primary physical custody of the parties' two daughters to Appellee, Paula ("Polly") Arnott (Mother). Father sought modification of custody after Mother gave notice of her intention to relocate to Virginia with the children. Relying on this Court's decision in Watt v. Watt, 971 P.2d 608, 614 (Wyo. 1999), the district court applied a "strong presumption in favor of the right of a custodial parent to relocate with her children" and determined that Father had failed to establish a material change in circumstances warranting an analysis of whether modification would be in the best interests of the children.

[¶2] On appeal, Father contends that our decision in Watt should be overturned. He asserts that application of that precedent undermines his constitutionally protected parenting rights and the state's interest in promoting the best interests of the children. We agree and hold that application of a presumption favoring the relocating custodial parent should not be applied in determining whether there has been a material change in circumstances. To the extent that our decision in Watt mandates application of such a presumption, it is hereby overturned. Because the district court applied this presumption in determining that Father had failed to meet his burden of proving a material change in circumstances, we reverse and remand for further proceedings consistent with this opinion.

ISSUES

[¶3] Father presents the following issues for our consideration:

1. Did the District Court err when it determined that this Court's holdings in Watt and Resor foreclosed a determination that an interstate relocation can give rise to a substantial change in circumstances sufficient to consider a custody modification?

2. In the alternative, and as a matter of first impression, did the District Court's application of Watt and Love violate the Father's fundamental constitutional right to raise his children?

3. Also in the alternative, to the extent the District Court did not err in its interpretation of Watt, and the Watt standard is retained as constitutional, did the District Court exceed the bounds of reason in deciding that the Mother's move of 2,140 miles still allows for reasonable visitation for Father?

Mother states the issues as follows:

1. Was the District Court correct in determining that an interstate relocation by the primary custodial parent, standing alone, does not constitute a material and substantial change in circumstances sufficient to modify custody under Wyoming law?

2. Did the District Court correctly determine that the custodial parent's motives for relocating were legitimate, sincere and in good faith?

3. Did the District Court correctly determine that reasonable visitation is still available to the non custodial parent after relocation?

FACTS

[¶4] The parties were married in 2001 and lived together in Jackson, Wyoming until their divorce in 2010. Their first daughter, AGA, was born on June 6, 2003, and their second daughter, ALA, was born on June 30, 2005. At the time of their divorce, the parties agreed that they would share joint legal custody of the children, and that Mother would have primary physical custody, subject to Father's reasonable visitation. The parties agreed to "consult with each other regarding major decisions involving the children, including but not limited to their education, health, and other issues involving the children's welfare." The parties agreed that Father would have visitation every other weekend, as well as on alternating Thursdays. They also agreed to Father's visitation on alternating holidays and during two two-week periods in the summer. The decree of divorce required Mother to provide notice if she intended to relocate.

[¶5] On July 8, 2011, Mother filed a notice of intent to relocate, indicating that she intended to move with the children to Mechanicsville, Virginia on August 13, 2011. Ten days later, Father filed a petition for modification of custody alleging that Mother's anticipated move constituted a material change in circumstances with respect to custody and visitation. The petition also alleged that it was in the best interests of the children for Father to have primary residential custody. On Father's motion, the court issued a temporary order enjoining Mother from removing the children from Wyoming pending a hearing on the merits of Father's petition.

[¶6] Mother moved to dismiss the petition to modify custody and visitation, asserting that under this Court's decision in Watt, relocation by a custodial parent, by itself, is not a material change in circumstances sufficient to justify a modification of child custody. The district court converted the motion to dismiss to a motion for summary judgment after Father filed an affidavit with his response to the motion, and the court invited the parties to supplement their pleadings and provide additional evidence. After a hearing, the court denied Mother's motion, finding there were issues of material fact as to "whether the circumstances surrounding [Mother's] proposed move to Virginia would constitute a material change of circumstances justifying a modification of the parties' custody arrangement." A hearing on Father's petition was held in early November, 2011.

[¶7] The district court began the hearing by noting that Watt and its progeny had established a presumption in favor of the custodial parent's right to relocate with the children:

Whether you disagree with it or whether you agree with it and whether you like it or not, the law is very clear in Wyoming when it comes to considering whether a material and substantial change of circumstances exists sufficient to modify custody when a custodial parent wishes to relocate with [the] children.

It's a high standard, the -- there's a strong presumption in Wyoming in favor of the right of a custodial parent to relocate with [the] children, assuming certain criteria are satisfied. . . .

During the hearing, the court received testimony from several witnesses, including the parties, the children's dual-language immersion teacher, a nurse from their pediatrician's office, Mother's sister, and a close personal friend of Father's. At the conclusion of the hearing, the court issued its ruling from the bench.

[¶8] The court found that the children had "an outstanding set of parents" and "an incredibly involved father whose life revolves around his relationship with his children." The court noted that both Mother and Father were exemplary parents, that the children were "thriving" in their current environment, and that the "arrangement here in Jackson has worked incredibly well." The court further commented that "If I had my wish it would be that Ms. Arnott would find some way to stay here or nearer so that the extraordinary relationship that Mr. Arnott has with his children could continue to blossom in a similar fashion." But the court again noted that Wyoming precedent had created a "strong presumption in favor of allowing the custodial parent to move with [the] children" and had placed a "difficult burden" on the non-custodial parent to show a material change in circumstances based on the custodial parent's relocation.

[¶9] Following the criteria set forth in Watt, the district court determined that Mother's motives for the relocation were legitimate, sincere, and in good faith. The court also found that Mother's relocation would still permit Father's reasonable visitation if visitation was expanded. The court concluded that Father had not established that Mother's relocation constituted a material change of circumstances sufficient to warrant consideration of a change in custody. The court's oral ruling was memorialized in a written Order Denying Defendant's Petition for Modification of Custody and Visitation, issued on December 27, 2011. Mother moved to Virginia with the children shortly thereafter.

[¶10] After both parties submitted proposals for a revised visitation schedule, the court ordered a visitation plan for Father that increased his summer visitation to eight weeks, and expanded visitation during school holidays and during a week in February. The visitation plan also allowed Father to visit the children at any time in Virginia with advance notice. Father appeals from the district court's order.

STANDARD OF REVIEW

[¶11] Father contends the district court misapplied Wyoming law with respect to whether an interstate relocation constitutes a "material change in circumstances" sufficient to warrant modification of child custody. This Court reviews questions of law de novo. Willis v. Davis, 2010 WY 149, ¶ 10, 243 P.3d 568, 570 (Wyo. 2010). Father also claims the district court's decision abridged his constitutional right to raise his children, and asks this Court to overrule the decision in Watt. We review constitutional issues de novo. Hanson v. Belveal, 2012 WY 98, ¶ 12, 280 P.3d 1186, 1191 (Wyo. 2012). Finally, Father asserts that the district court exceeded "the bounds of reason" in determining that Mother's relocation would still permit reasonable visitation. On this issue, we review for an abuse of discretion. "The trial court has discretion in determining custody and visitation issues to be in the best interests of the children: 'Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court.'" Zupan v. Zupan, 2010 WY 59, ¶ 12, 230 P.3d 329, 333 (Wyo. 2010) (quoting Pace v. Pace, 2001 WY 43, ¶ 9, 22 P.3d 861, 865 (Wyo. 2001)).

DISCUSSION

[¶12] Disputes arising from the relocation of a custodial parent "present some of the knottiest and most disturbing problems that our courts are called upon to resolve." Tropea v. Tropea, 665 N.E.2d 145, 148 (N.Y. 1996). As one commentator has noted,

Relocation cases are "intractable problems" and the "San Andreas fault" of family law. When one parent attempts to move a child a significant distance from the other parent, the child's relationship with each parent changes in quality and quantity. These "no-win" cases are occurring with increasing frequency, create enormous tensions for parents and their children, and burden the legal system and the judges who have to decide them. A potential relocation can generate conflict in cases where there had been none before, reopen old wounds in others, or exacerbate an already highly-conflicted situation.

Elrod, Linda D., National and International Momentum Builds for More Child Focus in Relocation Disputes, 44 Fam. L.Q. 341, 341-42 (2010). Unfortuantely, such cases are increasingly common.*fn1 In this case, Father contends that Mother's relocation to Virginia is a material change of circumstances warranting modification of custody.

[¶13] As a general rule, the provisions of a divorce decree, including those pertaining to child custody, are subject to the doctrine of res judicata, which bars litigation of issues that were or could have been determined in a prior proceeding. Mentock v. Mentock, 638 P.2d 156, 158 (Wyo. 1981). Res judicata "is mandated by public necessity; there must be an end to litigation at some point, or else the legal system would become so bogged down that nothing would ever remain decided." Id. This Court has recognized, however, that application of res judicata to a petition for modification of child custody is not appropriate where there has been a "material or substantial change in circumstances" with respect to the initial custody determination. Id. In that instance, res judicata does not apply because "[the] modification proceeding involves new issues framed by facts differing from those existing when the original decree was entered. A new adjudication of the rights of the parties must be made. For all intents and purposes it is a separate and distinct case from the original proceeding." Leitner v. Lonabaugh, 402 P.2d 713, 719 (Wyo. 1965).

[¶14] The applicability of res judicata has been functionally incorporated as a threshold inquiry under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2009), enacted in 2000, which governs modification of child custody generally. The statute requires a determination that there has been a material change in circumstances before a court may consider whether modification of custody is in the best interests of the children:

§ 20-2-204. Enforcement and modification.

(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). 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.

(Emphasis added.) We have stated that, pursuant to Wyo. Stat. Ann. § 20-2-204(c),

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. In short, unless the district court finds a material change in circumstances, it cannot proceed to the second step - determining whether a modification would be in the best interests of the child.

Hanson, ¶ 18, 280 P.3d at 1193 (quoting In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006)) (citations omitted). The burden is on the party seeking modification of a custody order to prove, first, that there has been a material change in circumstances, and second, that modification would be in the best interests of the children. Hanson, ¶19, 280 P.3d at 1193.

[¶15] The present case relates to the threshold inquiry under Wyo. Stat. Ann. § 20-2-204(c): whether relocation of a custodial parent may constitute a material change in circumstances sufficient to warrant consideration of whether modification of custody is in the best interests of the children. Because relocation of a custodial parent is not addressed in Wyo. Stat. Ann. § 20-2-204, or in any other provision of the domestic relations code, our analysis is guided by relevant case law. Father asks us to hold, contrary to established precedent, that relocation of a custodial parent may constitute a material change in circumstances warranting the district court's consideration of the best interests of the children. In order to facilitate our discussion of the issues presented, we begin by setting forth a brief history of our precedent relating to modification of child custody based on a custodial parent's relocation.

[ΒΆ16] This Court's first occasion to consider modification of child custody based on the possible relocation of a custodial parent arose in Martin v. Martin, 798 P.2d 321 (Wyo. 1990). In that case, both parents remained in Laramie at the time of their divorce, and the divorce decree specified that each parent would have physical custody of the children for six months of the year. Id. The divorce decree further specified, however, that if either parent relocated from Laramie, the relocating parent would have custody for three months, and the remaining parent would have custody for nine months. Id. at 321-22. On appeal, this Court held that inclusion of the provision for automatic future modification of child custody was an abuse of discretion, ...


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