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Demers v. Nicks

Supreme Court of Wyoming

January 27, 2016

TASCHE N. DEMERS, Appellant (Defendant),
v.
MICHAEL W. NICKS, Appellee (Plaintiff)

Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.

Representing Appellant: Guy P. Cleveland of Cleveland Law, Cheyenne, WY.

Representing Appellee: No appearance.

Representing Guardian ad Litem: No appearance.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

OPINION

Page 978

HILL, Justice.

[¶1] Tasche DeMers (Mother) challenges a district court order awarding Michael Nicks (Father) primary custody of the parties' ten-year old son. Mother contends that the district court erred by treating the dispute as an initial custody determination rather than as a modification of an existing custody order. Mother further contends that the district court abused its discretion by giving insufficient weight to the status quo and the child's preference. We affirm.

ISSUES

[¶2] Mother states the issues on appeal as follows:

I. Whether the trial court abused its discretion by ignoring material factors deserving significant weight. The relevant material factors being:
a. Status Quo as a Material Factor; and
b. Child's preference as a Material Factor requiring " serious consideration."
II. Whether the trial court abused its discretion by determining this matter as an " initial custody determination" rather than a modification proceeding after entry of the temporary custody order that solidified the parents' decade long shared custody/equal parenting time agreement.

FACTS

[¶3] The parties met in Cheyenne, Wyoming in 2004 and began dating. In December 2004, Mother gave birth to the parties' son, ADN. The parties never married, and they separated in September 2005, when ADN was about ten months old. Mother and Father thereafter lived separately and shared the parenting of ADN.[1]

[¶4] The parties eventually began new relationships and had additional children. Mother had a relationship with Manuel Maestas, who passed away in 2010, and had two children with him. Father is married to Brittany Nicks, and they have two children together.

[¶5] In 2009, Mother moved to Denver, Colorado and took ADN with her. Father opposed the move, but at that time he lacked the financial resources to file a court action. Mother lived with her father in Denver for over a year and then returned to Cheyenne. During the time Mother lived in Denver, Father exercised regular visitation and paid child support to Mother.[2]

Page 979

[¶6] Upon Mother's return to Cheyenne, the parties resumed their shared parenting of ADN, and they shared custody of him on a relatively equal basis. The present dispute began in December 2012 when Mother informed Father that she intended to move back to Colorado and once again take the parties' son with her. On December 11, 2012, Father filed a Petition to Establish Custody and Visitation, and Modify Child Support, and at the same time obtained an ex parte mutual restraining order prohibiting either party from removing ADN from Wyoming during the pendency of the custody petition.[3] Mother responded by sending Father a text message stating:

I'll be keeping [ADN] from now on, see u in court I guess, laters. Britnay will no longer needa pick him up. Do not contact me anymore....
U shoulda talked to me about it like a man, ill be switching him schools as well.

[¶7] On February 1, 2013, Father filed a motion requesting that the district court enter an order addressing temporary custody, visitation, and child support during the pendency of the custody action. On March 1, 2013, following a hearing, the district court entered an Order Granting Temporary Custody, Visitation and Modification of Restraining Order (hereafter " Temporary Custody Order" ). The Temporary Custody Order provided, in part:

3. It is in the minor child's best interest to preserve the status quo during the pendency of this case.
4. Both parties agree the custody schedule has been:
A. [Mother] has the minor child every Monday from after school through Wednesday morning when the child is taken to school in the morning.
B. [Father] has [the] minor child every Wednesday when school is released for the day through Friday morning when the child is taken to school in the morning.
C. The parties alternate each weekend with the minor child. Weekends begin on Fridays after school is released and end Sunday evening at 6:00 p.m.
5. It is in the minor child's best interests that this allocation of time continue. Neither parent has expressed any safety concerns for the child if this schedule continues.
6. The division of parenting time, as stated in Paragraph 4 herein, will continue during the pendency of this case or until further order of this Court.
7. The Ex Parte Temporary Mutual Restraining Order is modified to allow both parties to temporarily leave the state of Wyoming with their child to visit friends and family during the pendency of the case.

[¶8] A two-day trial was held on the parties' custody dispute on December 11-12, 2014. During the trial, the district court heard testimony from several witnesses, including both parties. The court also received the in-chambers testimony of ADN, who testified that he would prefer to live with Mother. On February 4, 2015, the district court issued its decision letter announcing its decision to award primary custody to Father.

[¶9] On April 14, 2015, the district court issued its final order implementing its decision (hereafter " Final Custody Order" ). The order established Father as the primary custodial parent and granted Mother liberal visitation rights. In particular, the order directed that Mother would have two months visitation during the summer vacation period, visitation of one weekend per month during the school year, twice a week phone or Skype visitation, alternating holiday visitation, and visitation each and every Spring Break. The order also addressed child support

Page 980

by directing Mother to pay Father child support in the amount of $200.88 per month.

[¶10] On May 11, 2015, Mother filed her notice of appeal to this Court, appealing the district court's Final Custody Order.

STANDARD OF REVIEW

[¶11] This Court reviews district court decisions affecting child custody and visitation for an abuse of discretion. Cook v. Moore, 2015 WY 125, ¶ 7, 357 P.3d 749, 751 (Wyo. 2015). We have said:

It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration. The determination of the best interests of the child is a question for the trier of fact. We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.
A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. Our review entails evaluation of the sufficiency of the evidence to support the district court's decision, and we afford the prevailing party every favorable inference while omitting any consideration of evidence presented by the unsuccessful party. Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained. Similarly, an abuse of discretion is present when a material factor deserving significant weight is ignored.

IC v. DW, 2015 WY 135, ¶ 7, 360 P.3d 999, 1001 (Wyo. 2015) (quoting Stevens v. Stevens, 2014 WY 23, ¶ 8, 318 ...


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