from the District Court of Johnson County The Honorable
William J. Edelman, Judge
Representing Appellant: Benjamin L. Keller, Kinnaird Law
Office, P.C., Sheridan, Wyoming.
Representing Appellee: Tad T. Daly, Daly & Sorenson, LLC,
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
After learning of Mother's intent to move from Buffalo,
Wyoming, to Plains, Montana (a distance of nearly 600 miles),
Father, Luke Camino, petitioned to modify custody and
requested primary physical custody of the parties'
four-year-old son, BDC. Mother, MonteReye Iannelli (n/k/a
MonteReye Josephson), opposed a change in custody, but
counterclaimed to modify Father's visitation schedule.
After a one-day trial, the district court found that
Mother's move constituted a material change in
circumstances, and that it was in BDC's best interests to
grant Father primary physical custody. Mother appealed and we
reverse and remand.
We reframe Mother's issues:
1. Did the district court abuse its discretion when it
determined a material change in circumstances justified
reopening its prior custody order?
2. Did the district court abuse its discretion when it
determined that transferring custody to Father was in
BDC's best interests?
Father raises a threshold jurisdictional issue asserting that
Mother failed to timely file her notice of appeal.
Mother and Father were never married, but had a child
together, BDC, who was born in February 2013. Shortly after
BDC's birth, Father filed a petition to establish
paternity, custody, visitation, and support. The parties
reached an agreement a few months later and the district
court entered a stipulated order on August 13, 2013. The
district court ordered joint legal custody and named Mother
as BDC's primary physical custodian. The district court
also ordered a graduated visitation schedule for Father,
which began with supervised visits. Although both parties
resided in Buffalo, Wyoming, the order included an
alternative visitation schedule in the event either party
relocated more than 250 miles from Buffalo.
Following entry of the custody order, BDC lived in Buffalo
with Mother and his older half-sister, K. Mother owned her
home and continued to work as a waitress for a local
restaurant, as she had for approximately 16 years. Her mother
also lived in Buffalo and provided childcare while Mother
Father initially worked as a fencer and lived just outside of
Buffalo. He later married. His wife has a daughter from
another relationship, R, who is six months older than BDC. In
2014, Father moved his family into their own home on his
mother's ranch near Clearmont, Wyoming-roughly thirty
minutes from Buffalo. Father switched employment a year later
and worked in water management until his brother-in-law
offered him a job with a cattle operation in March 2016.
The parties largely adhered to the visitation schedule set
forth in the custody order.Father regularly exercised his
visitation and the parties worked together to accommodate
occasional schedule changes. During Father's visitation,
BDC went to work with Father while Father did ranch work. In
the summer months, BDC participated in rodeos and in the
Johnson County Fair with his cousins. He rode horses, fished,
hunted, and spent time with his large extended family during
In August 2016, Mother decided to move to Montana in early
2017 to be with her fiancé. She informed Father of her
relocation plans and the parties discussed adjusting
Father's visitation schedule. Father did not approve of
the move because BDC had lots of friends and family in
Buffalo. A few weeks later, Mother filed a notice of her
intent to relocate. Father retained an attorney in November
and, on January 26, 2017, he filed a petition to modify
custody and a motion for an ex-parte temporary restraining
order. The district court did not enter a restraining order
and Mother moved to Montana on February 1, 2017, as planned.
Mother answered the petition and counterclaimed to modify
visitation and child support. The district court set trial
After Mother relocated to Montana, she obtained employment as
a waitress at a local resort; she worked Thursday through
Sunday evenings from 5:00 p.m. to 9:00 p.m. While Mother
worked, her husband or their eighteen-year-old niece provided
childcare. Mother also enrolled BDC in preschool on
Mondays and Wednesdays from 12:00 p.m. to 3:00 p.m.
The parties attempted to adhere to the alternative visitation
schedule, but both parents were concerned about the amount of
time BDC spent traveling between the
households. The parties tried to negotiate a new
schedule. Father proposed that BDC stay for "four days
instead of just like the weekend, or maybe every other week[,
]" but Mother declined due to BDC's preschool
schedule. Mother filed a motion to modify visitation in March
requesting the court set a new visitation schedule pending
trial. The district court held a hearing on the motion in May
and issued a temporary order granting Father summer
visitation from May 26, 2017, until three days before school
commenced, subject to Mother's visitation on June 8-11,
July 1-4, and August 4-7.
By the time Father's summer visitation commenced, Mother
was pregnant and developed complications with her pregnancy.
Due to her condition and her husband's busy work
schedule, Mother went to Buffalo on June 1, 2017, to stay
with her mother for the summer. Mother resumed her former
waitressing job, but planned to return to the resort in
Montana after her maternity leave expired. Her mother also
planned to move to Montana to be with Mother and her family.
While in Buffalo, Mother exercised her four days a month
summer visitation and watched BDC participate in his weekly
rodeo activities. She requested three additional visits.
Father denied her requests, except he allowed Mother to take
BDC to see a movie.
The district court held a one-day trial on August 2, 2017.
The parties submitted proposed findings of fact and
conclusions of law shortly thereafter. Several months later,
on January 8, 2018, the district court entered its
Findings of Fact, Conclusions of Law, and Order. The
district court granted Father primary physical custody of BDC
commencing February 1, 2018. The court granted Mother
visitation the last full week of every month, but did not
provide any additional visitation for holidays or extended
time in the summer until BDC enters kindergarten. Father
testified that if granted custody, he would not enroll BDC in
kindergarten until he is six years old.
Mother filed a Motion for New Trial or, in the
Alternative, Motion to Alter or Amend Judgement (Rule 59
motion) on February 5, 2018 and requested a hearing. The
district court did not schedule a hearing or enter an order
on Mother's post-judgment motion. Mother filed a notice
of appeal on June 6, 2018.
We first determine whether we have jurisdiction to consider
this appeal. Evans v. Moyer, 2012 WY 111, ¶ 9,
282 P.3d 1203, 1208 (Wyo. 2012). The existence of
jurisdiction is a question of law we review de novo.
Golden v. Guion, 2016 WY 54, ¶ 11, 375 P.3d
719, 722-23 (Wyo. 2016) (citation omitted). Our jurisdiction
is limited to timely appeals from final, appealable orders.
W.R.A.P. 1.03(a); W.R.A.P. 1.04; see also Evans,
¶ 11, 282 P.3d at 1208 (citations omitted). A notice of
appeal is timely if filed within 30 days from entry of the
appealable order. W.R.A.P. 2.01(a). The district court
entered its Findings of Fact, Conclusions of Law, and
Order on January 8, 2018. Mother did not file her notice
of appeal within 30 days following entry of that order, but
instead filed her Rule 59 motion on February 5, 2018.
A timely-filed Rule 59 motion tolls the time to file a notice
of appeal if filed no later than 28 days after entry of the
judgment. W.R.C.P. 59(b), (e); W.R.A.P. 2.02(a). The time for
filing a notice of appeal begins anew after an order granting
or denying the Rule 59 motion is entered, or when the motion
is deemed denied. W.R.A.P. 2.02(b); see also Hodges v.
Lewis & Lewis, Inc., 2005 WY 134, ¶ 20, 121
P.3d 138, 144-45 (Wyo. 2005). Mother timely filed her Rule 59
motion on February 5, 2018; however, Father argues that the
motion did not toll the time for filing a notice of appeal
because the substance of the motion simply requests
reconsideration of the district court's decision.
See, e.g., Sherman v. Rose, 943 P.2d 719,
721 (Wyo. 1997), overruled by Plymale v. Donnelly,
2006 WY 3, 125 P.3d 1022 (Wyo. 2006), and overruled by
Essex Holding, LLC v. Basic Properties, Inc., 2018 WY
111, 427 P.3d 708 (Wyo. 2018). Father acknowledges that we
recently overruled our prior precedent supporting his
position, but argues Essex should apply
prospectively only. Essex Holding, LLC, ¶ 40,
427 P.3d at 721.
Generally, civil case decisions apply retroactively because
the "ruling of a court is deemed to state the true
nature of the law both retrospectively and
prospectively." Harvey By & Through Harvey v.
Gen. Motors Corp., 739 P.2d 763, 765 (Wyo. 1987)
(citations omitted). "Whether the general rule should be
departed from depends on whether a substantial injustice
would otherwise occur." Id. (citations and
emphasis omitted); see also Adkins v. Sky Blue,
Inc., 701 P.2d 549, 552 (Wyo. 1985) (citation omitted)
(explaining that "where a decision might produce
substantial inequitable results if applied retroactively, it
is appropriate to avoid such hardship or injustice by
providing for prospective operation only"). We see no
reason to depart from the general rule.
Prior to our decision in Essex, we held that if a
post-judgment "motion was titled a motion to reconsider,
or appeared after review of its substance to be a motion to
reconsider," the time for appeal was not tolled.
Essex Holding, LLC, ¶ 33, 427 P.3d at 718
(citations omitted). Applying this precedent, we dismissed
several appeals for lack of jurisdiction. See, e.g.,
Byrnes v. Harper, 2018 WY 21, ¶ 8, 411 P.3d
427, 430 (Wyo. 2018), overruled by Essex, 2018 WY
111, 427 P.3d 708; Lokey v. Irwin, 2016 WY 50,
¶ 8, 374 P.3d 311, 315 (Wyo. 2016), overruled by
Essex, 2018 WY 111, 427 P.3d 708; Waldron v.
Waldron, 2015 WY 64, ¶ 12, 349 P.3d 974, 977 (Wyo.
2015), overruled by Essex, 2018 WY 111, 427 P.3d
708; In re Estate of Nielsen, 2011 WY 71, ¶ 12,
252 P.3d 958, 961 (Wyo. 2011), overruled by Essex,
2018 WY 111, 427 P.3d 708. In Essex, we closely
examined our prior precedent and determined that we had
incorrectly interpreted federal law and, thus, improperly
conflated the grounds on which a trial court decides a Rule
59(e) motion with the grounds used to determine if a motion
constitutes "a valid Rule 59(e) motion for the purposes
of tolling the time for appeal." Essex Holding,
LLC, ¶ 34, 427 P.3d at 718. We further explained:
An appellate court wastes judicial resources by confirming
that the [post-trial] motion did not repeat issues made
before judgment was entered. It is an 'arduous'
process that is both 'inefficient' and susceptible to
'inconsistent results.' It compels this Court to
review the merits of the motion to determine whether the
motion could be asserted at all- effectively premising the
validity of a post-judgment motion on the likelihood of its
success. Finally, it denies the right of appeal to an
appellant who files a post-judgment motion that merely
repeats arguments, even though the very reason that a trial
court should deny such a motion is that the appellant's
'proper recourse is appeal-not reargument.'
'We do not function for the purpose of . . .
mak[ing] an appeal disappear, but exist to administer justice
to those who come to settle their disputes.'
Id. ¶ 39, 427 P.3d at 720 (citations and
footnote omitted) (emphasis added). For these reasons, we
held that a post-judgment motion, however titled, is treated
as a Rule 59(e) motion and tolls the time for filing a notice
of appeal if it challenges the merits of the judgment and is
filed no later than 28 days after the entry of the judgment.
Id. ¶ 40, 427 P.3d at 721. Retroactive
application of this rule would not create injustice; ...