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Brandon Lee Jensen v. Margaret E. Milatzo-Jensen

March 7, 2013

BRANDON LEE JENSEN, APPELLANT (PLAINTIFF),
v.
MARGARET E. MILATZO-JENSEN, APPELLEE (DEFENDANT).



Appeals from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

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

Before KITE, C.J., and GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ.

VOIGT, J., delivers the opinion of the Court; BURKE, J., files a concurring in part and dissenting in part opinion, in which KITE, C.J., joins.

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] Brandon Lee Jensen, the appellant (Father), and Margaret E. Milatzo-Jensen, the appellee (Mother), divorced in 2007. In the litigation that followed the divorce, the district court granted Mother's motion to modify the visitation schedule, denied Father's request to present expert testimony, denied Father's claims for child support abatement, denied Father's petition to modify child support, partially reimbursed Father's day-care expenses, and awarded attorney's fees to Mother. Father now appeals those orders.

[¶2] We affirm in part and reverse in part.

ISSUES

[¶3] 1. Did the district court abuse its discretion by modifying Father's visitation schedule?

2. Did the district court abuse its discretion by denying Father's request to present the testimony of two expert witnesses?

3. Did the district court err by denying Father's claims for abatement of child support?

4. Did the district court abuse its discretion by denying Father's Petition to Modify Child Support?

5. Did the district court abuse its discretion by not fully reimbursing Father for day-care expenses?

6. Did the district court abuse its discretion in its award of attorney's fees against Father?

FACTS

[¶4] Mother and Father were married on November 29, 2003. One child was born during that marriage on September 30, 2004. After Father filed for divorce on August 29, 2006, the district court entered a divorce decree on May 22, 2007. The district court awarded primary residential custody of the child to Mother and ordered that the parties share joint legal custody of the child. More facts will be provided as they become relevant.

DISCUSSION

Did the district court abuse its discretion by modifying

Father's visitation schedule?

[¶5] On June 27, 2007, one month after the divorce decree was entered, Mother and Father jointly stipulated to modify Father's visitation schedule, entitling him to five overnight visits every two weeks, alternating holidays, and two one-week visits during the summer. In 2010, the two one-week summer visits were to be replaced with a sixty-day visit. Father moved to Wellington, Colorado, on or around July 1, 2010. Aware of Father's impending move, Mother filed a second motion to modify father's visitation schedule on June 17, 2010, alleging that the relocation was a material change in circumstances sufficient to warrant modification.

[¶6] Following a trial, the district court agreed with Mother that a material change in circumstances had occurred because of Father's relocation to Colorado and continuing acrimony between the parents and found that a reduction in Father's visitation would be in the child's best interest. Father now appeals that decision.

[¶7] Adjustments to visitation orders are made within the sound discretion of the district court. In re Paternity of JWH, 2011 WY 66, ¶ 5, 252 P.3d 942, 945 (Wyo. 2011).

In determining whether an abuse of discretion has occurred, our primary consideration is the reasonableness of the district court's decision in light of the evidence presented. We view the evidence in the light most favorable to the district court's determination, affording every favorable inference to the prevailing party and omitting from our consideration the conflicting evidence.

Id. at ¶ 6 (quoting Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087, 1089 (Wyo. 2009)).

[¶8] Modification of a visitation order requires a two-step analysis. In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006). There must be "a material change in circumstances since the entry of the order" and a finding that "modification would be in the best interests of the children pursuant to W.S. 20-2-201(a)." Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2011). Before a court may consider whether a modification of a visitation arrangement would be in the best interest of the child, there must be a material change in circumstances sufficient to warrant such an inquiry. "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 re TLJ, 2006 WY 28, ¶ 8, 129 P.3d at 876 (quoting Kreuter v. Kreuter, 728 P.2d 1129, 1130 (Wyo. 1986)).

[¶9] Father argues that the district court abused its discretion by modifying the visitation schedule because there was no material change in circumstances warranting an inquiry into whether such a modification was appropriate, nor was a modification in the best interest of the child. It is well established by Wyoming case law, he continues, that relocation cannot be considered a material change in circumstances. We have very recently, however, altered our position on the significance of relocation to better take into account the needs of the child involved in custody and visitation disputes.

[¶10] Relying upon the constitutional right to travel, we have said in the past that "relocation, by itself, is not a substantial or material change in circumstances sufficient to justify a change in [a] custody order." Watt v. Watt, 971 P.2d 608, 614 (Wyo. 1999). After a thorough review of Watt and the cases upon which it relied, as well as cases critical of Watt from other jurisdictions, we specifically overruled Watt and held that "relocation by the primary physical custodian, as well as 'factors that are derivative of the relocation'--including 'the inherent difficulties that the increase in geographical distance between parents imposes'--may constitute a material change in circumstances sufficient to warrant consideration of the best interests of the children." Arnott v. Arnott, 2012 WY 167, ¶ 40, 293 P.3d 440, 458 (Wyo. 2012).

[¶11] Here, Father, the non-custodial parent, moved from Cheyenne, Wyoming, to Wellington, Colorado, a distance of about forty miles. Following a trial, the district court granted Mother's motion to modify the visitation order, finding that a material change in circumstances was present. Although the district court did not rely solely upon Father's move to Wellington in determining that there was a sufficient change in circumstances justifying an inquiry into whether a modification was in the best interest of the child, our decision in Arnott makes it clear that such a relocation may be a sufficient change in circumstances.

[¶12] When the visitation order was established, Mother and Father lived within four blocks of one another and within four blocks of the child's school in Cheyenne. The parties must have necessarily contemplated their proximity to one another when they settled on the terms of the visitation schedule. When Father moved to Colorado, despite continuing to maintain employment in Cheyenne, the daily life the parties contemplated for their child ceased to exist. "[I]t is difficult to imagine an instance in which a proposed relocation will not render an existing parenting plan or custody-and-visitation arrangement unworkable." Arnott, 2012 WY 167, ¶ 35, 293 P.3d at 456 (quoting Jaramillo v. Jaramillo, 823 P.2d 299, 309 n.9 (N.M. 1991)). It is important to point out that we are not holding that a parent's relocation always necessitates a modification of a visitation arrangement. "[A] material change of circumstance does not automatically equate with a change in custody. Custody must be arranged so as to be in the best interests of the child(ren) on an individualized basis." JRS v. ...


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