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Tracy v. Tracy

Supreme Court of Wyoming

February 22, 2017

SHANE ELWOOD TRACY, Appellee (Respondent).

         Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

          Representing Appellant: Stacy M. Kirven, Barney & Graham, LLC, Sheridan Wyoming

          Representing Appellee: Brendon E. Kerns, Kerns Law Office, LLC, Sheridan, Wyoming

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

          DAVIS, JUSTICE.

         [¶1] Shane Tracy (Father) successfully petitioned for modification of the child custody provisions of his divorce decree and thereby obtained custody of his young son and daughter.[1] His ex-wife, Renee Buchli (Mother), appeals from the district court's modification order, as well as from a temporary order entered early in the litigation. We affirm.


         [¶2] Mother raises the following four issues on appeal:

1. Did the district court err when six months prior to trial, it granted Father temporary physical custody of the children upon offers of proof and argument, rather than after holding a full evidentiary hearing?
2. Did the court abuse its discretion by allowing the children's counselor to testify as an expert witness at trial even though Father had not made a disclosure of that witness's proposed testimony which complied with all requirements of the Wyoming Rules of Civil Procedure?
3. Did the district court abuse its discretion in ultimately awarding custody of the children to Father after a full evidentiary hearing?
4. Did the court violate Mother's constitutional rights to interstate travel and to associate with her children when it modified custody in favor of Father?


         [¶3] The parties divorced on July 18, 2013. By the terms of a stipulated decree of divorce, Mother was granted custody of the children, subject to Father's right to liberal visitation. The decree also provided that the children were to attend Meadowlark School in Sheridan to take advantage of superior educational opportunities at that facility.

         [¶4] Later Mother became involved with the boyfriend she eventually married, and the two began living together in August of 2014. From that point on, the boyfriend commuted daily from Sheridan to his job at a Gillette area coal mine. On April 10, 2015, Mother advised Father by letter that she intended to move to Gillette with the children in August of that year. Father responded on May 27 by filing a petition to modify the custody, visitation, and support provisions of the parties' divorce decree, as well as a motion for temporary custody. Mother's answer and counterclaim agreed that her planned move constituted a sufficient material change of circumstances to reopen the divorce decree.[2]

         [¶5] Before and after the move, the children began to exhibit serious emotional and behavioral problems. Ten-year-old BJT began experiencing persistent bouts of uncontrollable crying, and five-year-old SST began to uncharacteristically order adults around and otherwise aggressively attempt to control them. Mother consequently enrolled the children in counseling with Deiadra Smidt. BJT began twice weekly sessions in June of 2015, and SST began therapy the following month.

         [¶6] The district court issued an order setting a hearing on the motion for temporary custody for August 7, 2015. As the transcript of that hearing establishes, school would start a few weeks after that hearing, and it was therefore important to address the situation one way or another within a short time. The same order set a one-day bench trial on the motion for February 5, 2016, and it set other deadlines to assure that the case was ready for trial on that date.

         [¶7] Approximately one week after that order issued, Ms. Smidt copied Mother, Father, and their attorneys with a letter summarizing her work to date with BJT. She reported that the boy's grave state of conflict over the pending move threatened to make him progressively more sad, depressed, fearful, and anxious unless he continued with therapy to help him develop coping skills to respond to the pressures he was feeling.

         [¶8] At the beginning of the temporary custody hearing, the district court reminded the parties and counsel that because less than an hour had been set aside for the proceeding, it did not expect to hear any testimony. It would instead hear only legal arguments and offers of proof from counsel as to facts currently at their disposal. Neither counsel objected to proceeding in that manner, which we deduce is the practice in the Fourth Judicial District.[3] The hearing was a free-ranging one, with both parties and their attorneys contributing, although the clients were not under oath. The court asked a number of questions of counsel and the parents.

         [¶9] Father's attorney focused on the need to keep the children, particularly BJT, in counseling with Smidt and in the school where they were comfortable and successful and had friends. Counsel also noted that Father's mother and extended family would help him attend to the children's needs when he had to work. Finally, counsel reported that Mother and her boyfriend intended to live in a toy hauler[4] trailer with the children until they could save enough money to build a house in Gillette.

         [¶10] Before building the house, Mother and her boyfriend would need to construct a road and provide water, waste facilities, and electricity for the property on which the house was to be built. When Mother moved with the children to Gillette on August 1, 2015, shortly before the temporary order hearing, the toy hauler had to be parked in a recreational vehicle park populated mostly by transient workers in the oil and mineral industries because of the lack of these amenities. In addition, Mother had at that point decided not to work so that she could stay home with the children when they were not in school.

         [¶11] The court expressed concern over Mother's somewhat unsettled and provisional planning for the future. It had concerns that Mother had placed her financial welfare, and to some extent that of the children, in her boyfriend Mr. Buchli's hands, although they were not married. However, it was far more concerned that the children be given the best chance at resolving the serious emotional problems caused by the move. It concluded that interest would best be served by leaving them where they could attend Meadowlark Elementary School, and by continuing the therapeutic relationship they had with Ms. Smidt until a trial[5] of the modification petition could be held.

         [¶12] Consequently, the court granted Father's request for temporary custody of the children from the start of the new school year until the upcoming trial in February of 2016. The court made it clear that it was normally "very reluctant" to modify custody on a temporary basis, but that it would do so under these unique circumstances. It also indicated that the order was indeed temporary, and that it was just intended to maintain a stable status quo with regard to schooling and counseling until it could hold a full evidentiary hearing. The court also adjusted visitation and child support to accommodate the temporary arrangement. A written order followed.[6]

         [¶13] On October 23, 2015, Father designated Smidt as an expert witness. The disclosure provided as follows:

Ms. Smidt, MS, LPC [Wyoming license no.], provides counseling services for the minor children B.J.T. and S.S.T. She will testify to the reasons for the children's emotional and psychological issues and struggles. She will testify to what tissues [sic] the children have been diagnosed with. She will testify to what is in the children's best interest concerning their emotional, psychological and coping needs.

         [¶14] On November 16, 2015, Mother gave notice that she would depose Smidt on December 4. A week later, Mother served Smidt with a subpoena duces tecum which instructed her to bring her counseling records relating to the children and a curriculum vitae to the deposition. A subpoena was issued because Smidt contended that she could not otherwise lawfully voluntarily release the children's mental health records, even to their parents. In any event, although Mother's attorney later cancelled the deposition, Smidt provided both parties with complete records on both children, as well as her curriculum vitae, evidently pursuant to the subpoena to the deposition.

         [¶15] On January 4, 2016, Mother objected to Father's expert designation of Smidt because it did not include the information required by W.R.C.P. 26(a)(2)(B(i), [7] and she asked the district court to sanction Father for his alleged noncompliance by not allowing Smidt to testify at the modification hearing. After a January 29 hearing on that objection, the court declined Mother's request due to the importance of Smidt's testimony to its evaluation of the best interests of the children, but it did limit her testimony to fleshing out the contents of her records.

         [¶16] As was the case with the temporary custody hearing, concerns about the children's psychological welfare dominated the trial. Smidt described BJT as being heavily burdened by internal conflicts and at risk for developing substantially increased anxiety and depression unless he received treatment aimed at developing coping skills to deal with the feelings and perceptions he had revealed to her. He was particularly sad and worried about the prospect of leaving both sides of his extended family behind in Sheridan, he felt that people did not listen to his concerns, and he wished his mother would focus more attention on him. Although he got along well with Mr. Buchli, he felt that Buchli was taking his mother and the security of living in Sheridan away from him, and that his mother had chosen her boyfriend over him. He could not understand why Buchli could not live in the trailer in Gillette and travel back and forth to see his mother, and he was quite worried that he would have to move again if his mother and Mr. Buchli married and they then had to move again if he changed jobs.[8]

         [¶17] Although SST also appeared to suffer from a high degree of anxiety and depression relating to the prospect of moving to Gillette, in her they manifested in an insistence on controlling her environment and the people within it. Allowing her to act out in that manner in a therapeutic environment would, in Smidt's opinion, reduce her anxiety. As was the case with her brother, SST was upset by what she perceived as her mother's preference for her boyfriend over her. The child related to Smidt that she woke up one ...

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