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In re Paternity of HLG

Supreme Court of Wyoming

March 11, 2016

IN THE MATTER OF THE PATERNITY OF HLG, minor child: JN, Appellant (Respondent),
v.
RFSG, Appellee (Petitioner)

          Appeal from the District Court of Natrona County. The Honorable Catherine E. Wilking, Judge.

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

         For Appellee: Jason E. Ochs of Ochs Law Firm, P.C., Casper, Wyoming.

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

          OPINION

Page 903

          KAUTZ, Justice.

          [¶1] JN (Mother) appeals from the district court's order granting RFSG (Father) custody of their son, HLG (the child). She

Page 904

claims the district court abused its discretion by refusing to allow the child's therapist to give opinion testimony at the custody hearing. We conclude the district court properly applied the rules of civil procedure and, therefore, affirm.

         ISSUE

          [¶2] The issue in this case is:

         Whether the district court abused its discretion by refusing to allow the child's therapist to give opinion testimony because Mother did not comply with her discovery obligations.

         FACTS

          [¶3] The child was born to Mother and Father in 2008. The parents were not married, but the family lived together until January 2010. After the parties' separation, the child lived with Mother and, although there was no order on visitation or custody, Father regularly visited the child for a time. The State filed a petition to establish support for the child, and the district court entered an order requiring Father to pay child support in January 2011. He consistently paid child support but did not visit the child after Christmas 2010.

          [¶4] In February 2013, Mother, who had since married, filed a petition for adoption of the child by her husband. Father contested the petition, and the district court denied the adoption. Father filed a petition to establish paternity and visitation in March 2013. While the matter was pending, the district court granted Father temporary visitation with the child. For several months, Mother did not comply with the temporary visitation order. Father filed two motions for order to show cause, and the district court found Mother in contempt of court. Eventually, regular visitation between Father and the child was established.

          [¶5] In December 2013, Father amended his petition to seek custody of the child. The district court held a trial on Father's petition in April 2015. Mother called the child's counselor, Cindy Parrish, to testify at trial. The counselor testified about her observations during therapy sessions with the child. However, when Mother's attorney asked the counselor about her opinion on a drawing the child made during counseling, Father objected. The district court sustained the objection, ruling that Mother had not disclosed the counselor's opinion prior to trial as required by the Wyoming Rules of Civil Procedure.

          [¶6] After the trial, the district court granted custody of the child to Father, subject to Mother's visitation rights. Mother appealed.

         STANDARD OF REVIEW

          [¶7] We review the district court's interpretation of the rules of civil procedure de novo. Dishman v. First Interstate Bank, 2015 WY 154, ¶ 13, 362 P.3d 360, 365 (Wyo. 2015); Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo. 2015). The district court's decision on the admissibility of evidence is reviewed under the abuse of discretion standard. CL v. ML, 2015 WY 80, ¶ 15, 351 P.3d 272, 277 (Wyo. 2015).

A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. The appellant bears the burden of showing an abuse of discretion.

Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015), quoting Glenn v. Union Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo. 2011). See also CL, ¶ 15, 351 P.3d at 277. Likewise, the district court has discretion in selecting an appropriate sanction for discovery violations, and we interfere with its decision only when the district court abused its discretion. Roemmich v. Roemmich, 2010 WY 115, ¶ 22, 238 P.3d 89, 95 (Wyo. 2010); Ruwart v. Wagner, 880 P.2d 586, 592 (Wyo. 1994).

         DISCUSSION

          [¶8] In her W.R.C.P. 26 pretrial disclosure, Mother listed Cindy Parrish as a " will call" witness but did not designate her as an expert. Mother described ...


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