Appeal
from the District Court of Uinta County The Honorable Joseph
B. Bluemel, Judge
Representing Appellant: Eric F. Phillips, Eric F. Phillips
Law Office, Rock Springs, Wyoming.
Representing Appellee: Farrah L. Spencer and Monica J.
Vozakis of Long Reimer Winegar Beppler LLP, Evanston,
Wyoming.
Before
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
KAUTZ,
JUSTICE.
[¶1]
Following a bench trial, the district court awarded the
appellee, Samuel B. Kramer (Father), primary physical
custody, and the appellant, Sarah McBride-Kramer (Mother)
visitation, of the couple's daughter (the child). Mother
appeals the order, arguing the district court abused its
discretion when it refused to allow her to call one of the
child's counselors, who had not been previously
designated as a witness, to testify at trial. We affirm.
ISSUE
[¶2]
Mother identified two issues on appeal; however, they involve
the same ruling. Therefore, we distill Mother's issues to
one:
Whether
the district court abused its discretion when it refused to
allow an undesignated witness to testify at trial.
FACTS
[¶3]
Father and Mother were married on October 4, 2008, and the
child was born in 2012. Toward the end of the marriage,
Mother became convinced that Father was either sexually
abusing the child or grooming her for future sexual abuse.
Father denied abusing the child, but Mother's concerns
eventually led to her leaving the family home and moving with
the child to Mother's parents' home in Utah. Mother
filed for divorce on February 24, 2016.
[¶4]
Between the time Mother filed for divorce and the trial, the
child was treated by seven counselors, the focus being
whether the child was sexually abused. The child also was
examined by emergency room staff who were informed of
Mother's suspicions of sexual abuse. Mother reported the
suspected abuse to the Utah and Wyoming Department of Family
Services and twice to law enforcement. As part of both
criminal and juvenile investigations, the child underwent two
separate forensic examinations. It appears Mother's
reports went unsubstantiated because a criminal or juvenile
action was not filed against Father.
[¶5]
Mother refused to allow Father any unsupervised visitation
with the child after they moved to Utah. On May 3, 2016,
Father filed a motion to establish temporary visitation. The
district court held a hearing on that motion, considered the
arguments of the parties, and ordered an unsupervised
visitation schedule for Father. Mother, however, refused to
abide by the terms of the order and insisted on a
"transition period" for Father's visitation.
Mother was present during each visit, usually staying
overnight in Father's home with the child. She often
arrived with the child several hours late for Father's
visitation, and almost always took the child home early.
Other times, she simply would not bring the child for
visitation, claiming the child was ill or did not want to
visit Father. On February 25, 2017, Mother called the
Evanston Police Department to "keep the peace" when
she arrived with the child four to five hours late. Mother
asked the police officer to grant her permission to decline
the visit because Father would act rudely to the child. The
officer informed Mother that she needed to comply with the
visitation order.
[¶6]
Father continuously requested that visitation occur in accord
with the district court's order. However, the first
overnight visit without Mother did not take place until March
10, 2017. On that day, Mother arrived at Father's house
over three hours late, and again requested that law
enforcement intercede. She explained "she was upset that
her daughter had to go for [an] overnight visitation that she
did not think she was ready for." The visit took place
and Father's unsupervised visitation continued to take
place thereafter.
[¶7]
On October 29, 2017, Mother picked the child up from her
visit with Father and again alleged that Father had abused
the child. Father was interviewed for a third time, and the
child underwent a third forensic interview. Because this
additional investigation was ongoing, on November 17, 2017,
Mother requested to continue the custody trial set for
November 29 and 30, 2017. The district court observed that
the claims in this investigation seemed to be more of the
same claims that had been investigated before, denied
Mother's request for a continuance, and the trial
proceeded as scheduled. The record does not indicate this
investigation ever resulted in any juvenile or criminal
action.
[¶8]
On the morning of the first day of trial, Mother requested
that Heather Wyler, a counselor who had been treating the
child since December 2016, be allowed to testify. Although
Mother had listed other therapists who treated the child as
potential witnesses at trial, Mother never listed Ms. Wyler
as a potential witness in any capacity in her pretrial
disclosures. Mother argued Ms. Wyler had obtained important
and useful information from the child within the prior month,
and that information had been provided to Father through two
separate letters. Father objected to Ms. Wyler's
testimony, stating that while he had received the letters, he
did not have any of the child's treatment records from
Ms. Wyler. The district court pointed out that it had ordered
Mother's expert witnesses be designated by March 31,
2017, Mother had not designated Ms. Wyler at that time, and
the order specifically stated that "[e]xpert witnesses
not designated will be prohibited from testifying, absent
consent of the Court for good cause shown." The court
then explained that Mother's request for a continuance
and the information Ms. Wyler would apparently testify about
were simply a rehash of Mother's allegations of sexual
abuse that had not been substantiated to date and did not
constitute "good cause."
[¶9]
During the trial, the court heard testimony from Mother,
Father, Mother's parents, Father's brother, and a
psychologist Mother had consulted about the child. Mother
testified extensively about her concern that Father had
either sexually abused or was going to sexually abuse the
child. Father testified that he never abused the child and
Mother's allegations were unfounded. Dr. Goldsmith, a
psychologist that Mother had consulted with and designated as
an expert, was called as a witness by Father. Dr. Goldsmith
explained that the child could appear anxious around Father
because she had been repeatedly asked questions about her
father and abuse by many different people. Dr. Goldsmith
expressed concern about the number of times the child had
been examined for sexual abuse, explaining those exams also
carry the risk of trauma to the child.
[¶10]
The court also heard extensive testimony from both parties
about Mother's unwillingness to comply with the temporary
visitation order and the difficulties Father encountered in
spending time with the child. After considering the
testimony, the district court determined Father had not
sexually abused the child, although it acknowledged that
Mother believed otherwise. The court carefully considered
each factor listed in Wyo. Stat. Ann. § 20-2-201(a)
(LexisNexis 2017).[1] The court found that both parents love and
are capable of caring and providing for the child.
Mother's behavior towards Father and her continual
interference with visitation, however, weighed heavily
against Mother in the analysis. The court expressed concern
that nothing would stop Mother from believing that Father
abused the child, and that belief will prevent Mother from
...