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ELA v. AAB

Supreme Court of Wyoming

October 13, 2016

ELA, Appellant (Plaintiff),
v.
AAB, Appellee (Defendant).

         Appeal from the District Court of Goshen County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: James A. Eddington of Jones & Eddington Law Offices, Torrington, Wyoming

          Representing Appellee: Traci E. Mears, Garden Creek Law Offices, PC, Casper, Wyoming

          Before BURKE, C.J., and HILL, DAVIS, FOX, JJ., and BLUEMEL, D.J.

          DAVIS, Justice.

         [¶1] Appellant ELA ("Father") challenges an order denying his motion to modify AAB's ("Mother") visitation of their son. Father also asserts that the district court needed to provide more or better notice for the modification hearing, and that it should not have conducted it in an hour and a half setting by telephone. We affirm.

         ISSUES

         [¶2] Father raises several issues, which can be refocused into the following two questions:

1. Did the district court abuse its discretion by denying Father's petition to modify Mother's visitation after finding there was no material change in circumstances?
2.Did the district court abuse its discretion by conducting the modification hearing as it did?

         FACTS

         [¶3] The limited record on appeal provides the following facts. The parties never married, but have a son who was three at the time the issues involved in this appeal arose. After years of unremitting litigation concerning custody and related matters in Goshen County, the parties stipulated to an order setting custody and visitation, which was entered by the district court on March 31, 2014. Although that order is not in the record before us, we can infer from the information we have that Father was the custodial parent, and that Mother had defined visitation, the details of which are not known.

         [¶4] A year and a half after the stipulated order was entered, on September 4, 2015, Father filed a pleading titled Petition to Modify Visitation and Motion for Contempt and Restraining Order ("Petition/Motion"). He asserted that a material change in circumstances occurred because Mother (1) dressed their son up like a girl, (2) drove him in a vehicle without a valid driver's license, [1] and (3) failed to pay child support. As a result, Father requested that Mother's visitation be supervised and that she be restrained from dressing their son up like a girl and from driving him in a motor vehicle until she obtained a valid driver's license. He also sought to have Mother held in contempt for failing to pay child support.

         [¶5] Father also filed an emergency motion for a restraining order and for supervised visitation on September 4, 2015. It included the same allegations as the Petition/Motion. He requested a setting for hearing on this emergency motion the same day.

         [¶6] Mother did not respond to any of Father's pleadings, so a default was entered on October 5, 2015.[2] Although the venue of the case was in Goshen County, it was assigned to Judge Campbell, who sits in Cheyenne in Laramie County. On October 29, the judge set an hour and a half telephonic hearing on "all pending motions" for December 4, which provided just over a month for the parties to prepare.

         [¶7] The December 4 telephonic hearing was not reported by a court reporter. Father, his attorney, and an expert participated in a conference call. Mother did not appear, although she was present at the earlier status and scheduling conference that led to the setting. We can glean from the record that Father was able to present his case and offer evidence in support of a modification. Father testified, as did the expert (the child's counselor), and various exhibits were received in evidence.

         [¶8] On December 31, 2015, the district court entered an Order Denying Motion to Modify and Granting Motion for Contempt. It found that the uncontroverted evidence showed that Mother had failed to pay child support, and that her failure constituted a willful violation of the district court's previous orders. Consequently, the district court granted Father's motion to hold her in contempt, and in accord with Wyo. Stat. Ann. ยง 20-2-204(b) (LexisNexis 2015), ordered her to comply with child support obligations and ...


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