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Wendy Willis, F/K/A Wendy Davis v. Chad Davis

April 17, 2013

WENDY WILLIS, F/K/A WENDY DAVIS, APPELLANT (DEFENDANT),
v.
CHAD DAVIS, APPELLEE (PLAINTIFF).



Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge

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

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] The appellant, Wendy Willis (hereinafter Mother), appeals the district court's decision to deny her motion for modification of custody and visitation. She claims that the district court's order does not comply with the statutes regarding child custody and visitation and that the district court improperly denied the admission of the children's treating counselor's notes and written opinion into evidence at the motion hearing. We affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it denied Mother's motion for modification of custody and visitation?

2. Did the district court abuse its discretion when it determined that the treating counselor's notes and written opinion regarding her counseling sessions with the children were inadmissible hearsay?

FACTS

[¶3] Mother and the appellee, Chad Davis (hereinafter Father), married in 2000, and two children, CD and DD, were born during the marriage. On March 10, 2006, Father filed for divorce, and the district court entered the decree of divorce on November 19, 2007. Father was granted primary physical and residential custody of the children, while Mother was granted "reasonable and liberal visitation." In its decision letter, the district court specified that [v]isitation between [Mother] and [CD and DD] is to take place at least two weekends a month at or before 4:00 p.m. Friday and concluding at or before 4:00 p.m. Sunday. This visitation is to primarily take place on weekends when [Father] is working. The parties are to agree upon which weekends visitation will take place. However, the Court realizes that this type of arrangement may become stressful and confusing to not only the parties but also the boys as it may change each month. If either party finds that this arrangement is not working, they may notify the other party in writing and visitation will default and take place every other weekend beginning at or before 4:00 p.m. Friday and concluding at or before 4:00 p.m. Sunday.

[¶4] On June 10, 2010, Mother filed a motion to modify the custody arrangement.*fn1 A hearing on the motion was held on March 22 and 23, 2012, where each party called various witnesses, including experts. The district court determined that Mother failed to demonstrate that there had been a material and substantial change in circumstances since the last request for custody modification and denied the motion. The district court also noted the inability of Mother and Father to cooperate when determining when Mother's visits with the children would occur. Thus, the district court ordered that Mother submit her work schedule to Father and that Father create the visitation schedule. Additional facts will be discussed when relevant.

DISCUSSION

Did the district court abuse its discretion when it denied Mother's motion for modification of custody and visitation?

[¶5] Mother argues that the district court abused its discretion when it denied her motion for modification of child custody because the record demonstrates that there was a material change of circumstances surrounding the original custody arrangement and that a modification of custody is in the best interests of the children. "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." CLH v. MMJ (In re TLJ), 2006 WY 28, ¶ 6, 129 P.3d 874, 876 (Wyo. 2006). In making this decision, we focus on whether the district court's decision was reasonable. Id. Further, "[w]e 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." Id. After a review of the record, we find that the record supports the district court's finding that there was not a material change of circumstances and, therefore, the district court did not have jurisdiction to consider the best interests of the children and grant a custody modification.

[¶6] "As a general rule the doctrine of res judicata applies to divorce decrees." Willis v. Davis, 2010 WY 149, ¶ 12, 243 P.3d 568, 570 (Wyo. 2010). However, Wyoming law recognizes that a modification to a custody or visitation arrangement is sometimes necessary. Id. Modification of a custody order is controlled by ...


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