ZANE S. JOHNSON, Appellant (Defendant),
JAMI CLIFFORD, Appellee (Plaintiff). ZANE JOHNSON, Appellant (Defendant),
JAMI CLIFFORD, Appellee (Plaintiff).
from the District Court of Johnson County The Honorable
William J. Edelman, Judge
Representing Appellant: Seth Shumaker, Sheridan, Wyoming.
Representing Appellee: Christopher M. Wages of the Wages
Group, LLC, Buffalo, Wyoming.
BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.
Appellant, Zane S. Johnson (Father), appeals the district
court's order modifying the child custody, visitation and
support order entered when Father and Appellee, Jami J.
Clifford (Mother), divorced. Father argues the district court
erroneously determined a material change in circumstances
affecting the parties' children occurred since the
original divorce decree. He claims the court's order
changing custody does not serve the children's best
interests. Father also asserts the district court erred when
it denied his motion to require that Mother and the children
be examined by a psychologist of Father's choosing. We
Father raises the following issues on appeal:
I. Whether the trial court erred in finding a substantial and
material change of circumstances to justify a modification of
the court's prior decree.
II. Whether the trial court erred in finding [a] substantial
and material change of circumstances which affect[s] the
welfare of the parties' children to justify and [sic]
change in custody.
III. Whether the trial court erred in changing custody
because it did not serve the children's best interests.
IV. Whether the trial court erred in denying Father's
Motions for Orders to Examine Persons.
Father and Mother were married in 1997. Three children were
born during the marriage: CEJ, born in 1999; MRJ, born in
2001; and SDJ, born in 2005. In 2008, the Sixth Judicial
District Court in Weston County granted Father and Mother a
divorce. The divorce decree was the result of a settlement
agreement between the parties regarding property, child
custody, and child support. The decree granted the parents
joint legal custody of the children, vested primary
residential custody of the children with Mother and granted
Father reasonable and liberal visitation. The decree ordered
that the children would visit Father every Wednesday from
5:00 p.m. until Thursday at 8 a.m., and every other Thursday
afternoon through Monday morning. Father also was granted
visitation for six weeks during the summer and every other
holiday. The visitation schedule resulted in Father having
the children 48% of the time. The parties agree this
arrangement amounted to joint physical custody. Mother
remarried in 2010 and relocated to Buffalo, Wyoming. In order
to continue the joint custody arrangement, Father quit his
job in Newcastle and moved into a home close to Mother's
home in Buffalo.
In 2016, Mother filed a petition for modification of the
custody and visitation order. She alleged several material
changes in circumstances to justify modifying the custody
order, including: the parties and the children had moved to
Buffalo; CEJ is autistic/special needs and was preparing to
graduate from high school; the parties could not agree on
medical treatment decisions regarding MRJ; MRJ had become
resistant to spending time with Father; MRJ had been cited
for an alcohol offense; CEJ and SDJ experienced significant
conflict during Father's custody periods; Father often
left the children unsupervised in the mornings because he had
to drive to Gillette for work; and all three children were
receiving counseling for significant behavioral, emotional
and mental health issues.
Father opposed the petition and requested that Mother and the
children be examined by a psychologist of Father's
choosing. The district court denied Father's motion.
Father renewed the motion after Mother designated one of the
children's treating psychologists as an expert witness.
The district court again denied Father's motion.
On November 4, 2016, the district court held an evidentiary
hearing on Mother's petition to modify custody. The court
heard testimony from Mother, Father, Mother's husband,
Mother's father, the children, and two psychologists.
Mother argued that the testimony demonstrated several
material changes of circumstance that made a joint custody
arrangement no longer viable. Father argued Mother had failed
to demonstrate a material change in circumstances that would
warrant a change in custody. However, he further argued that
if a change in custody was necessary, he should receive
primary physical custody of the children.
The district court issued its Order Modifying Custody and
Visitation over six months later, on May 24,
2017. The court determined Mother had
demonstrated multiple substantial changes in circumstances
that affected the children: Mother had remarried; the parties
had communication issues that have impacted their ability to
co-parent; the children were displaying behavioral issues due
to the custody arrangement; and the joint custody arrangement
had become untenable. The court also determined it would be
in the best interests of the children to modify the custody
arrangement. The court ordered that Mother have primary
custody of the children, and awarded Father visitation every
other weekend and holiday. The court also granted Father
summer visitation beginning seven days after school is
released until seven days before school begins. During that
time, Mother is entitled to visitation every other weekend
and an undesignated continuous 14-day period. Father filed a
timely notice of appeal.
STANDARD OF REVIEW
We review a district court's decision on a petition to
modify child custody for an abuse of discretion, and we will
not disturb the decision absent a procedural error or a clear
abuse of discretion. Bishop v. Bishop, 2017 WY 130,
¶ 9, 404 P.3d 1170, 1173 (Wyo. 2017). "Judicial
discretion is a composite of many things, among which are
conclusions drawn from objective criteria; it means
exercising sound judgment with regard to what is right under
the circumstances and without doing so arbitrarily or
capriciously." Id. (quoting Gjertsen v.
Haar, 2015 WY 56, ¶ 11, 347 P.3d 1117, 1122 (Wyo.
2015)). A district court does not abuse its discretion if it
could reasonably conclude as it did. Id. In
determining whether the decision was reasonable, "[w]e
consider the evidence in the light most favorable to the
district court's decision, 'affording every favorable
inference to the prevailing party and omitting from our
consideration the conflicting evidence.'"
Id. (quoting Durfee v. Durfee, 2009 WY 7,
¶ 6, 199 P.3d 1087, 1089 (Wyo. 2009)). As previously
Deference must be given to the opportunity of the trial court
to judge the credibility of the witnesses, and a reviewing
court will not set aside the court's findings merely
because it might have reached a different result. The trial
judge is in the best position to assess the credibility of
witnesses and weigh their testimony, and, thus, this Court
accords considerable deference to the trial judge's
Drake v. McCulloh, 2002 WY 50, ¶ 18, 43 P.3d
578, 584 (Wyo. 2002).
Similarly, "[d]istrict courts are vested with wide
discretion on discovery matters[.]" McCulloh v.
Drake, 2005 WY 18, ¶ 16, 105 P.3d 1091, 1095 (Wyo.
2005). Therefore, we will not reverse a court's decision
on a discovery matter unless it is an abuse of discretion.
See id., ¶¶ 16-17, 105 P.3d at 1095;
Inskeep v. Inskeep, 752 P.2d 434, 436 (Wyo. 1988).