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Womack v. Swan

Supreme Court of Wyoming

March 13, 2018

AMY WOMACK f/k/a AMY SWAN, Appellant (Plaintiff),
v.
RYAN SWAN, Appellee (Defendant).

         Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge

          Representing Appellant: Timothy C. Cotton, CottonLegal, Casper, Wyoming.

          Representing Appellee: Jason E. Ochs, Ochs Law Firm, PC, Casper, Wyoming.

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

          FOX, Justice.

         [¶1] Appellee, Ryan Swan (Father), petitioned the district court to modify the custody, visitation, and child support provisions of his divorce decree. After a full evidentiary hearing, the district court, on its own motion, entered a temporary custody modification order rather than a final order. The temporary order was, in effect, a trial co-parenting plan that would become permanent after seven months unless either parent first requested a new hearing to establish that it was "unworkable." Father filed such a motion, and the district court held a second evidentiary hearing, after which the district court entered a final order granting primary custody of the children to Father. The district court also held Appellant, Amy Womack (Mother), in contempt of court for violating terms of the initial temporary order. Mother appeals both decisions. Although we find that the district court abused its discretion when it entered the temporary custody order, we affirm the district court's permanent custody modification. However, we reverse the contempt finding against Mother and remand Mother's contempt motion against Father to the district court for further proceedings consistent with this opinion.

         ISSUES

         [¶2] Mother presents two issues, which we rephrase as follows:

         1. Did the trial court erroneously issue a temporary order instead of a final order following an evidentiary hearing on the merits of the case?

         2. Did the trial court erroneously hold Mother in contempt and factor that contempt into its decision to modify custody?

         FACTS

         The Temporary Order

         [¶3] In April 2009, after a five-year marriage and the birth of two children, Mother and Father divorced on stipulated terms granting Mother the primary care, custody, and control of the children subject to reasonable visitation by Father. Mother states that "that was the last time the parties agreed upon anything" and the formidable record of contentious post-decree litigation corroborates this assertion. In March 2015, Father filed a Verified Petition to Modify Custody, Visitation and Child Support. After approximately nine months of discovery and competing pretrial motions, the district court held a 2½-day hearing in January 2016. At the hearing, the court heard the testimony of five lay witnesses and four expert witnesses, and received approximately 175 exhibits.

          [¶4] Father sought primary custody of the children, alleging, among other things, that Mother was systematically alienating the children from him[1] and suffered from a drinking problem. To support his allegation of alienation, Father introduced numerous emails, text messages, and audio recordings documenting Mother's behavior. Among many examples, Mother told or texted Father: "I'm going to tell the kids that you don't want to see them . . . [and] that you're choosing your girlfriend over them"; "I do not like [your girlfriend] and will make sure the kids don't either"; "I'll make sure the kids know you're choosing the b**** over them." Additionally, Mother would not allow the children to take their stuffed animals to Father's home and, during Father's visitation time, Mother texted pictures of herself with the stuffed animals to the children with the message "Puppy and Lamby miss you . . . [w]e want to have a playdate with you." Father also presented evidence that Mother, while insisting that Father contact the children only via the daughter's cell phone, blocked his phone number on that phone-thus explaining why the children were not answering his calls. To support his allegation that Mother had a drinking problem, Father presented Mother's bank records showing regular alcohol purchases, financed by either child support payments or her retirement savings, and Mother's own testimony that she had been arrested three times for DWUI. Father had recently remarried and believed that his new, blended family offered a stable support system for the children.

         [¶5] Mother, on the other hand, sought to keep primary custody of the children and to reduce Father's visitation time with the children, alleging that Father was a controlling, abusive, and dangerous person who became interested in becoming the primary custodial parent only after Mother sought an increase in child support. Mother denied that she had a drinking problem. Mother admitted that she had engaged in alienating behavior but, with ongoing therapy, she was "taking steps to change some of these behaviors."

         [¶6] Approximately four weeks after the hearing, the district court issued a "Temporary Order for Modification of Visitation" (the Temporary Order). The district court found four material changes of circumstances: Mother's diagnosis of breast cancer; Mother's unemployment during cancer treatment; Father's remarriage that brought step-siblings into his home; and-"the biggest material change in circumstances"-Mother's behaviors that were "likely to result in" alienating the children from their Father. The district court found that Father also engaged in alienating behavior, and "this is a close call." The district court stated: "With all the instability the children have experienced in the past few years, the Court is reluctant to add to [the children's] burden by transferring primary custody away [from Mother], " yet "[a]t the same time, if the relationship between [Father] and the children is actually being threatened, the Court may not have any other options." Ultimately, the court decided that, although Mother's behavior was "likely to result in" harm, the harm had not yet resulted (the children had not rejected Father), and the court could not justify awarding custody to Father at this time.

         [¶7] The district court therefore determined that "the most appropriate solution at this time" was a temporary one (the court's "last effort to help the parties co-parent their children"). Under the Temporary Order, the parents would continue to share time equally with the children and Mother would continue to be the primary custodial parent, but, in order to minimize conflict, the court changed the visitation schedule to reduce the number of exchanges. The order would remain in place for over seven months until October 2016, at which time it would become final-unless, prior to that date, either party requested a hearing to "establish that this custody arrangement is unworkable." At such a hearing, if the parties were "unable to agree that this arrangement is in the best interests of the children, " or if "parental alienation continues to occur, " the court would enter a "final order" which would "determine[] the long-term custody of the children" and "likely decrease the visitation of one of the parties." The district court also found that "quite possibly" Mother had an alcohol problem that "may have been a significant factor in exacerbating the confrontations between the parties." For this reason, the district court also ordered Mother "not to consume any alcohol when the children are in her custody."

         The Final Order

         [¶8] Five months later, Father requested a hearing pursuant to the Temporary Order. There followed approximately 30 pretrial filings by the parties, including contempt motions from each party alleging various violations of the district court's orders. In March 2017-more than one year after entering the Temporary Order and nearly two years after Father filed the initial petition-the district court held a second hearing on Father's petition for modification. The parties presented 10 witnesses and introduced approximately 46 exhibits. Along with witness testimony, Father presented new audio recordings and photographs evidencing Mother's continued attempts to alienate the children from Father and her alcohol consumption in the presence of the children. Father's expert witness testified that, due to Mother's alienation, the children (now ages 9 and 12) had begun to reject Father. On these grounds, Father requested primary custody of the children and a substantial period of no contact between Mother and the children. Mother denied that the children were rejecting Father, denied consuming alcohol while the children were in her care, and contended that Father had violated various terms of the Temporary Order. Mother requested the court to limit Father's visitation to alternating weekends.

         [¶9] Approximately one month later, the district court issued its Decision and Order Modifying Custody (the Final Order). The district court stated that it had intended the Temporary Order to be a "message" or a "signal" to Mother "that her alienating and controlling behaviors would not be tolerated, " and Mother "did not heed that warning." The court found a material change in circumstances since the entry of the Temporary Order: the likelihood of harm to the children due to Mother's alienating behavior had "switched from potential to palpable"-in other words, the children were now rejecting Father. After considering the factors provided by Wyo. Stat. Ann. § 20-2-201(a), the district court granted primary custody of the children to Father and reduced Mother's visitation. The district court also found Mother to be in contempt of the court's Temporary Order due to her consumption of alcohol in the presence of the children and her continued alienating behavior. Mother timely appealed the district court's modification of custody and its finding of contempt.

         DISCUSSION

         I. Did the trial court erroneously issue a temporary order instead of a final order following an evidentiary hearing on the merits of the case?

         [¶10] Mother alleges that the district court erred by entering a temporary custody modification order after a full evidentiary hearing. As a result of the court's error, she argues, the Temporary Order: (1) constituted a final judgment, precluding subsequent adjudication of the same issues under the doctrine of res judicata; and (2) created a modification procedure that denied her due process when the district court held a second hearing to permanently modify the custody of the children. We will first consider whether the district court improperly issued the Temporary Order. We will then address whether the transgression resulted in a final judgment, precluding a subsequent adjudication of the same issues under res judicata, or a violation of due process.

         A. The Temporary Order

         [¶11] Mother did not challenge the validity of the Temporary Order below, and usually we do not address an issue raised for the first time on appeal. Tracy v. Tracy, 2017 WY 17, ¶ 22, 388 P.3d 1257, 1262 (Wyo. 2017). However, we make an exception for issues "so fundamental they must be considered, or if they concern matters of jurisdiction." Id. (citation omitted).[2] We have recognized that the right to familial association is a fundamental issue that permits us to consider Mother's claim. Id. at ¶¶ 22, 23, 388 P.3d at 1262. We review issues of jurisdiction and statutory interpretation de novo. MF v. State, 2013 WY 104, ¶ 6, 308 P.3d 854, 857 (Wyo. 2013). If we find that the district court had the authority to issue the Temporary Order modifying child custody, we review the order for abuse of discretion. Gjertsen v. Haar, 2015 WY 56, ¶ 11, 347 P.3d 1117, 1122 (Wyo. 2015). "In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did." Ready v. Ready, 906 P.2d 382, 384 (Wyo. 1995) (citations omitted).

         [¶12] Wyo. Stat. Ann. § 20-2-112(b) (LexisNexis 2017) empowers district courts to issue temporary orders in a custody proceeding, "[o]n the application of either party . . . ." This language suggests that the district court may not issue a temporary order on its own motion. However, we have explained that,

because the rules and statutes governing courts are seldom all-encompassing, courts have been held to have inherent power to take such actions as may be necessary to perform their duties, so long as the exercise of that power is a reasonable response to specific problems and needs in the fair administration of justice and it does not contradict any express rule or statute. Dietz v. Bouldin, __ U.S. __, __, 136 S.Ct. 1885, 1891-92, 195 L.Ed.2d 161 (2016). This Court has also held that courts have inherent equitable authority to enter custody orders, even in the absence of a statute that provides that specific authority. See, e.g., Marquiss v. Marquiss, 837 P.2d 25, 33 n.5 (Wyo. 1992); Urbach v. Urbach, 52 Wyo. 207, 224-26, 73 P.2d 953, 960-61 (Wyo. 1937). . . .
Secondary authorities also recognize that courts have the power to enter temporary custody orders when to do so is in the best interests of the child. 2 Jeff Atkinson, Modern Child Custody Practice § 12-20 (2d ed. 2014) (brief temporary orders may minimize disruption to a child that might come from a change of custody after a full hearing); 24A Am. Jur. 2d Divorce and Separation § 857 (2008) ("A court may make a temporary change of custody when considering an application to change it permanently.").

Tracy, 2017 WY 17, ¶¶ 25-26, 388 P.3d at 1263. However, "[t]he fact that such an inherent power exists does not mean that it is appropriate to use it in every case. Courts should exercise their inherent power with restraint and discretion so as to avoid sacrificing one vital interest for another." Id. at ¶ 27, 388 P.3d at 1263 (citing Dietz v. Bouldin, 136 S.Ct. 1885, 1893, 195 L.Ed.2d 161 (2016)).

         [¶13] In exercising its discretion to formulate parenting arrangements, there may be a circumstance for which a district court's sua sponte temporary order is a reasonable response to specific problems and needs in the fair administration of justice. However, this case presents no such circumstances. After a full evidentiary hearing, the district court, upon its own motion, issued a temporary order as a sort of probationary custody arrangement for over seven months before entering a final order. This is not an appropriate use of a temporary order. The district court may have believed it to be in the best interests of the children to make one "last effort to help the parties co-parent their children" by sending a ...


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