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Booth v. Booth

Supreme Court of Wyoming

January 14, 2019

MELISSA GROW BOOTH, Appellant (Defendant),
v.
BERKELEY CRAIG BOOTH, Appellee (Plaintiff).

          Appeal from the District Court of Sweetwater County The Honorable Richard L. Lavery, Judge.

          Representing Appellant: Farrah L. Spencer and Monica J. Vozakis of Long Reimer Winegar Beppler LLP, Evanston, Wyoming.

          Representing Appellee: Berkeley C. Booth, pro se.

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

          FOX, JUSTICE.

         [¶1] Berkeley Booth (Father) and Melissa Booth (Mother) agreed when they were divorced that Mother would keep their former marital residence in Oakley, Utah, just east of Salt Lake City, while Father moved to Rock Springs, Wyoming. They also agreed, and the district court ordered, that Father would exercise his visitation with their two children at the former marital residence in Oakley. Two years later, the parties asked the district court to modify the visitation schedule so that Father was no longer required to exercise his visitation at the Oakley home. The court granted the request, but also changed Father's visitation schedule to provide that the children would spend extended periods of time with him in Rock Springs. Because neither the district court's order nor the record provide support for a finding that the modification to Father's visitation schedule was in the children's best interests, we reverse that aspect of the court's order.

         ISSUES

         [¶2] 1. Did the district court violate Mother's due process rights when it modified the visitation schedule?

         2. Was there a material change in circumstances that justified modifying the visitation schedule in addition to the visitation location?

         3. Did the district court abuse its discretion when it modified Father's visitation without considering the children's best interests?

         FACTS

         [¶3] Father and Mother were married in 1996, and had two children: BJB, born in 2000, and PAB, born in 2003. On November 6, 2015, the parties divorced. The parties filed a Stipulation and Agreement for Divorce, in which they agreed to joint legal custody of the children, with Mother to have primary physical custody. The agreement also provided that Mother would have possession of the marital home in Oakley until June 30, 2021, when it would be listed for sale and the proceeds split. The district court incorporated this agreement into the divorce decree.

         [¶4] Father lives in Sweetwater County, Wyoming, while Mother lives in Oakley, Utah. They agreed that it was in the children's best interests for Father to exercise his visitation at the parties' former marital home in Oakley. Father had alternating weekend visitation from Friday at 6:00 p.m. to Sunday at 7:00 p.m., and every Tuesday from 5:30 p.m. to 8:30 p.m. He also had visitation during spring break in odd numbered years and had four consecutive weeks during the summer, while Mother had two uninterrupted weeks in the summer. Father was responsible for his transportation costs from his home in Sweetwater County to the Oakley home.

         [¶5] The agreement led to a rancorous situation that might have been predicted. In December 2016, Mother filed a motion for order to show cause that accused Father of failing to adhere to the agreement's provision that he would treat Mother with respect while he exercised his visitation at the Oakley home. After a hearing, the district court found Father in contempt "for failing to vacate the Oakley home at the conclusion of his visitation, and for having guests visit the Oakley home without [Mother's] permission." The court ordered Father to adhere to the parties' agreement and the court's divorce decree.

         [¶6] On July 5, 2017, Father filed his Petition to Modify Decree of Divorce, in which he asserted that a "substantial change in circumstances has occurred" that warranted a modification. Father alleged that the travel distance between Sweetwater County and the Oakley home made it "nearly impossible . . . to utilize [his] mid-week visits," Mother "arranged for . . . [B]B] to work during Father's scheduled visits," and Mother was interfering with his parenting time while at the Oakley home. Father asked the district court to modify the decree to allow him to exercise his visitation "at a location of his choosing," to require Mother to split the transportation costs, or to allow Father to stay overnight at the Oakley home during his Tuesday visits. He also requested that the court require Mother to give him the "First Right of Refusal" to watch the children when she could not. In her response and counter-petition, Mother generally agreed that visitation at the Oakley home was no longer feasible because they could not get along and that a "substantial change in circumstance" existed. She asked the court to modify the order to no longer allow Father to exercise his visitation at the Oakley home, but to still require him to exercise his visitation somewhere else in Summit County, Utah, near the Oakley home. In addition, she alleged that Father was interfering with her two consecutive weeks of summer break with the children. Father filed a response to Mother's counter-petition and agreed that continuing his visitation in Summit County was in the children's best interests.

         [¶7] At the hearing on the cross-petitions, Father testified that he and Mother initially agreed to have Father exercise his visitation at the Oakley home so that the children would remain in a familiar environment and because "it would be difficult, if not impossible, for us to split the kids like traditional families and drive halfway and drop kids off." He testified that when he was at the Oakley home for visitation, Mother was also there and their animosity towards each other impeded his ability to have his scheduled visitation with the children and has "been very detrimental to the kids."

         [¶8] Father testified that, because the divorce decree requires him to pay $1, 500 towards the mortgage on the Oakley home, he is unable to buy or rent a home near Oakley where he could exercise his visitation. Thus, Father proposed having Mother sell or refinance the Oakley home in her name so he could obtain a loan to get a place nearby. Father also testified that he has generally been unable to exercise Tuesday evening visitation because of the distance between his home in Rock Springs and Oakley. At the conclusion of Father's testimony, the district court made the following suggestion:

I'm kind of in a position where my choices are to say tough it out and continue with the same visitation schedule that you have, that's all that there is.
The other alternatives are to . . . do a more normalized visitation. We'll split the cost of transportation, you get every other weekend wherever you want to go, except at the [Oakley] house.
Do it somewhere else, you get half the summer ...

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