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Kappen v. Kappen

Supreme Court of Wyoming

January 7, 2015

DARLA D. KAPPEN, Appellant (Plaintiff),
JIM R. KAPPEN, Appellee (Defendant)

Page 378

Appeal from the District Court of Goshen County. The Honorable Keith G. Kautz, Judge.

For Appellant: Guy P. Cleveland, Cleveland Law, Cheyenne, Wyoming.

For Appellee: Herbert K. Doby, Torrington, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ. FOX, J., delivers the opinion of the Court; BURKE, C.J., files a dissenting opinion, in which DAVIS, J., joins; DAVIS, J., files a dissenting opinion, in which BURKE, C.J., joins.


Page 379

FOX, Justice.

[¶1] Father, Jim R. Kappen, petitioned for custody modification transferring primary custody of the parties' youngest daughter, GK, to him. Mother, Darla D. Kappen, opposed the modification, and after a trial on the merits, the district court found that a material change in circumstances had occurred

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since the entry of the original custody order, and that it was in the best interests of GK for Father to become her primary custodian. Mother appealed and we reverse.


[¶2] Mother raises only one issue on appeal, which we restate as:

1. Was there a material change in circumstances warranting the district court's reopening of the existing custody order?


[¶3] The parties were divorced on February 9, 2010. The district court determined that Mother should have primary physical and legal custody of the children,[1] and Father was given standard visitation--every other weekend, sixty days during the summers, and alternating holidays. After the divorce, both parties continued to live in Lingle, Wyoming, though Father spent and continues to spend a great deal of his time in Bayard, Nebraska, sixty-five miles from Lingle. Mother worked at Wyrulec, a job she had held for many years. In January 2013, Mother was cited for stealing a fellow employee's cell phone. She contested the citation, but was convicted by a jury of a misdemeanor. Wyrulec terminated Mother's employment as a result of the incident. At the time of the hearing, Mother remained unemployed. Despite her loss of employment, Mother remained financially secure as a result of substantial savings she had amassed over time.[2]

[¶4] In the spring of 2013, Mother began planning a move to Denver with GK to live with her then boyfriend, Garrett Kato, whom Mother later married. Mother placed her home on the market in May 2013, but did not discuss her planned move with Father. On July 16, 2013, while GK was in Father's custody for summer visitation, Father filed a petition to modify custody alleging that a material change in circumstances had occurred as Mother was providing an unstable environment for GK.

[¶5] Father returned GK to Mother's custody on July 31, 2013. Mother and GK then moved to Denver and Mother enrolled GK in school there. In accordance with the Decree of Divorce which required the parties to " provide the other party with immediate notice of any change of address[,]" Mother filed a Report of Address to inform the district court and Father of her move on August 2, 2013. Father testified at trial that this was the first time he definitively knew that Mother and GK had moved to Denver, though he had " suspicions" of the move for some time.

[¶6] On August 8, 2013, Father filed a motion requesting that the district court prohibit GK's move out of Wyoming. Mother answered and the district court held a hearing soon after. The district court found that it was in the best interests of GK to remain in Lingle during the pendency of the proceedings, and awarded Father temporary custody of GK, pending a hearing on the merits. Mother was awarded standard visitation during the period of temporary custody with Father.

[¶7] After the district court entered its order awarding temporary custody to Father, Mother moved back to Lingle for a short time, hoping that the move would reflect positively on her at the modification hearing. Mother soon realized, however, that returning to Lingle had been a mistake, and she moved back to Denver, where she was living at the time of the modification hearing.

[¶8] The district court held a hearing on Father's petition to modify custody on November 25, 2013. It then issued its Order Modifying Child Custody, Child Support and Visitation, stating:

5. The Court recognizes that modification of a child custody and child visitation order is conditioned upon a finding of a material change in circumstances affecting the

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child's welfare which has occurred after entry of the order in question, that the change warrants modification of the order, and that the modification will be in the best interests of the child.
6. There has been a material change in circumstances affecting the child's welfare sufficient to warrant modification of the Court's February 9, 2010 Decree of Divorce regarding child custody, child support and visitation as follows:
i. In January 2013, [Mother] was fired from her employment for stealing from a co-worker, subsequently convicted of larceny in the Goshen County Circuit Court, maintained a relationship with Mr. Milner, was recently married to Mr. Kato, and in a short period of time moved to and from and then back to Denver. [Mother] is not now employed and lives in Denver with her current husband. All of this adds up to a material change in circumstances.
ii. The Court concludes that while the minor child has a good relationship with both parents, [Mother's] actions indicate a lack of judgment and personal stability and [Father] can provide a more stable environment for the minor child.

[¶9] Mother appealed.


[¶10] Decisions affecting child custody rest within the sound discretion of the district court. CLH v. MMJ (In re TLJ), 2006 WY 28, ¶ 6, 129 P.3d 874, 876 (Wyo. 2006). We will not disturb the district court's findings " absent procedural error or a clear abuse of discretion." Id. (citing 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)). Our primary goal in reviewing for an abuse of discretion is determining whether the district court's decision is reasonable. Id. (citing Selvey, 2004 WY 166, ¶ 15, 102 P.3d at 214). " 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." Id. (citing Selvey, 2004 WY 166, ¶ 15, 102 P.3d at 214).

[¶11] In custody modification proceedings, the party seeking to modify custody carries the burden of establishing that a material change in circumstances affecting the child's welfare has occurred subsequent to the entry of the initial decree, and that the modification would be in the best interests of the child affected. Jackson v. Jackson, 2004 WY 99, ¶ 7, 96 P.3d 21, 24 (Wyo. 2004). " A district court's findings concerning a material change in circumstances is principally a factual determination to which we accord great deference." Morris v. Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo. 2007) (quoting In re TLJ, 2006 WY 28, ¶ 11, 129 P.3d at 877). " 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." Walker v. Walker, 2013 WY 132, ¶ 21, 311 P.3d 170, 175 (Wyo. 2013) (quoting Hanson v. Belveal, 2012 WY 98, ¶ 13, 280 P.3d 1186, 1192 (Wyo. 2012)).


[¶12] Generally, child custody orders are subject to the doctrine of res judicata, barring relitigation of issues presented[3] and decided in a previous proceeding. Arnott v. Arnott, 2012 WY 167, ¶ 13, 293 P.3d 440, 444 (Wyo. 2012) (citing Mentock v. Mentock, 638 P.2d 156, 158 (Wyo. 1981) ([R]es judicata provides an endpoint to litigation and prevents the legal system from becoming " so bogged down that nothing would ever remain decided." )). We have

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recognized, however, that in the context of modifying child custody, the application of res judicata may be inappropriate in some circumstances. Id. at ¶ 13, 293 P.3d at 444-45. New issues and facts may create a material change in circumstances, thus mandating a new adjudication of the parties' rights. Id. at ¶ 13, 293 P.3d at 445. However, because " stability in a child's environment is of utmost importance to the child's well-being," Reavis v. Reavis, 955 P.2d 428, 432 (Wyo. 1998), " changes in custody are not favored and should not be granted except in clear cases." Morris, 2007 WY 174, ¶ 27, 170 P.3d at 93.

[¶13] The doctrine of res judicata " has been functionally incorporated as a threshold inquiry under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 20[13])." Arnott, 2012 WY 167, ¶ 14, 293 P.3d at 445. Section ...

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