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Supreme Court of Wyoming

July 20, 2016

JLK, Appellant (Respondent),
MAB, Appellee (Petitioner).

         Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: J. Craig Abraham, Gillette, WY.

          Representing Appellee: Molly R. Hoon-Hanks of Lonabaugh and Riggs, LLP, Sheridan, WY.

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

          HILL, Justice.

         [¶1] JLK (Mother) and MAB (Father) have a child together. They share custody of the child pursuant to an Order on Child Custody, Visitation and Support (Custody Order), which provides for the parties to alternate custody on a weekly basis until the child reaches school age. To address Mother's concerns regarding Father's alleged drug use, the Custody Order allows Mother to make one request per month that Father submit to a drug test. Father is required to take the test within twenty-four hours of receiving the request. If the test is positive for the presence of drugs, he forfeits his next weekly visitation. If the drug test is negative, Mother must reimburse Father for the cost of the test before she may make another request.

         [¶2] A dispute arose between Mother and Father concerning the testing, and Father filed a show cause motion alleging that Mother had violated the order by failing to allow him his visitation and reimburse him for a negative test. Mother responded with her own show cause motion alleging that it was Father who violated the drug testing requirement. The district court denied Mother's motion, granted Father's motion, and ordered Mother to pay Father's attorney fees and costs, as well as the costs of the negative drug test. We affirm in part and reverse in part.


         [¶3] Mother presents a single issue for our review: whether the district court erred in finding Mother violated the custody order. In arguing that issue, however, Mother contends that the district court's ruling was in error because it was Father who violated the order. For clarity, we therefore address Mother's appeal as presenting two separate issues:

1) Whether the district court erred in finding that Father did not violate the Custody Order's drug testing provisions.
2) Whether the district court erred in finding Mother in contempt of court for her violation of the Custody Order.

         [¶4] Father alleges on appeal that Mother has not purged herself of the contempt found by the district court and presents as an additional issue the question whether this Court should dismiss Mother's appeal and assess sanctions in the form of attorney fees and costs for Mother's failure to purge herself of the contempt.


         [¶5] On January 1, 2012, a child, CRB, was born to Mother and Father in Gillette, Wyoming. On June 22, 2012, the Sixth Judicial District Court, Campbell County, entered a Stipulated Judgment and Order Establishing Paternity and Support. The order established Father's paternity and set his child support obligations. On February 11, 2013, Father filed a petition to establish child custody and visitation, by which he sought primary custody of CRB, subject to Mother's reasonable visitation, as well as a corresponding modification of child support.

         [¶6] On February 3, 2015, the district court held a hearing on Father's petition. At the close of evidence and after hearing closing arguments, the court issued an oral ruling. The court ordered that the parties alternate custody of CRB on a weekly basis until she reaches school age, at which time Father would then have primary custody of the child, subject to Mother's reasonable visitation. To address allegations by Mother that Father used illegal drugs, the court commented and ruled:

Now, on visitation, and this is a little bit different, but as I say, the Court's a little bit skeptical, skeptical about [Father's] claims to have been drug-free since 1997. Now, he may be of the view that that's exactly how it was. And arguably, the testimony of Ms. Faye and Ms. Draper was motivated by disaffection with [Father]. I mean after all, he was married to Ms. Faye and then he wasn't and she claimed he was carrying on with Ms. Draper; and who knows. And they were friends, they were witnesses for [Mother], so maybe they ginned this whole thing up, I don't know. But arguably, mom has a comfort level that needs to be met here on that front, and I'm going to try and accomplish that in this way. This is a little bit different, and I hope this works. Let me ask dad first, the outfit where he got his drug test, is that open seven days a week or just five days a week, do we know?
[Father's Counsel]: He may be able to say.
[Father]: I believe it's five days a week. I never asked.
THE COURT: All right. That's all I need to know. Here's the Order: Mom is going to have the right, one time per month, to require dad to submit to a five-panel drug test within 24 hours of her request being made, so long as that can be accomplished, mom, within the business hours of the outfit that's doing the testing, and right now it's Occupational Testing, it might be some other outfit down the line. And if the test is negative, mom will have to pay the cost of the test. If it's positive, then dad not only will have to pay the cost of the test, but he will lose his next week-long period of custody in the preschool era, and once the child is in school, he will have to yield two additional weekends in the month following to mom for visitation.
* * * *
[Father's Counsel]: Can I ask one more question about the drug testing? Does mom need to submit a request in writing, or an oral request is fine?
THE COURT: Well, that's a good question. I thought of that when I announced the Order. And people these days, they text each other. And as long as mom can prove she made the request and dad received it, I think that's a little bit easier than having some highly defined method of communication. What do you think, [Mother's Counsel]?
[Mother's Counsel]: I think there has to be some type of actual notice, just actual notice. You know, it can['t] be he said she said, but text messages or something, it's going to be up to [Mother] to request it in a way that she can verify that the request was made.
THE COURT: That's the point I was trying to make. I don't want to hamstring people.
[Father's Counsel]: All right. So as long as there was notice that she ...

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