Martin v. Hart

FOX, Justice.

Appeal from the District Court of Natrona County
The Honorable Catherine E
. Wilking , Judge Representing Appellant:
Keith R. Nachbar, Keith R. Nachbar, P.C., Casper, Wyoming. Representing Appellee:
Stacy E. Casper, Casper Law Office, LLC, Casper, Wyoming. Before DAVIS , C.J., and BURKE ^*, FOX , KAUTZ , and BOOMGAARDEN , JJ. ^* Justice Burke retired from judicial office effective October 8 , 2018 , and , pursuant to Article 5 , § 5 of the Wyoming Constitution and Wyo . Stat. Ann. § 5-1-106(f) (LexisNexis 2017) , he was reassigned to act on this matter on October 9 , 2018. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume. FOX, Justice. [¶1] Heather Martin (Mother) and Christopher Hart (Father) had a brief romantic relationship, which ended before their child was born. Father filed a Petition to Establish Paternity, Custody, Visitation, and Support. The district court awarded primary physical custody to Mother, with a visitation schedule that requires extensive travel between Mother's residence in Glenrock, Wyoming, and Father's residence in Mesa, Arizona, until the child reaches school-age, at which time the parties must agree on a new visitation schedule or seek modification from the district court. The order also requires Father to pay child support below the presumptive statutory amount. Mother appeals the district court's visitation schedule and its child support determination. We reverse and remand.

ISSUES

[¶2] The parties raise three issues on appeal, which we rephrase:

1. Did Mother appeal an order over which this Court has jurisdiction?

2. Did the district court abuse its discretion when it imposed a graduated visitation plan requiring extensive travel that does not specify how visitation will work when the child starts kindergarten?

3. Did the district court abuse its discretion in establishing Father's child support obligation?

FACTS

[¶3] Father and Mother met in Casper, Wyoming, during the summer of 2015, and began a romantic relationship. That fall, Mother and Father broke up, and Mother learned she was pregnant. Initially Father and Mother communicated about the pregnancy, but in early 2016, Mother changed her phone number and blocked Father on social media "so that he could not reach [her] anymore[.]" Meanwhile, Father moved to Mesa, Arizona, to accept a job. In March, Father filed a Petition to Establish Paternity, Custody, Visitation, and Support in district court. [¶4] Mother gave birth to a son, LH, in June 2016. Father learned of the birth two days later from his mother, who had seen pictures of the baby on Facebook. Father travelled from Arizona to Wyoming to visit LH in July. He visited again in September, but Mother "kicked [him] out of the house" because he was taking photos after she had asked him not to. In November, Father and Mother entered into a Stipulated Temporary Agreement Establishing Paternity, Child Custody, Visitation and Support that established Father as LH's biological father, awarded Mother primary physical custody, established monthly visitation for Father, and required Father to pay child support of $646.78 per month during [¶9] Applying the factors in Wyo. Stat. Ann. § 20-2-201(a), the district court found:

(i). The quality of the relationship each child has with each parent. The Court finds that the parties are equal in this regard. The testimony is that both of them have positive relationships with the child.
(ii). The ability of each parent to provide adequate care for the child throughout each period of responsibility, including arranging for the child's care by others as needed. There was testimony that [Mother] is a stay-at-home mom, and [Father] has arranged for childcare for the minor. There was also testimony that [Mother] is completely dependent on her boyfriend for all means of support except for the public assistance that she receives while living with him. So the Court finds that to be a neutral factor between the parties.
(iii). Regarding the relative competency and fitness of each parent, the Court finds that the parties are equal. They both appear competent, fit and able to care for the child.
(iv). The parents' willingness to accept all the responsibilities, including a willingness to accept care at specified times and to relinquish care to the other parent at specified times. The Court finds that [Mother] has unreasonably restricted visitation for [Father], has unreasonably restricted contact between [Father] and the child and has generally been somewhat inflexible. This factor favors [Father].
. . . .
(viii). The geographic distance between the residences of the parties. [Mother] lives in Glenrock, and [Father] has relocated to Mesa. That is a distance that requires significant hours to drive and a fairly significant flight [] between the two locations, which is a consideration for this Court.
(ix). The current physical and mental ability of each parent to care for the child. The parties are equal with regard to that factor.
(x). Any other factors that the Court deems necessary and relevant. That factor would be that the child is almost two (2) and has lived the majority of his life with [Mother] and her significant other. Given the child's age, the Court finds that factor favors [Mother], only because [Father] had to relocate to take a job.

[¶10] The district court determined it in the best interests of LH to award legal and physical custody to Mother, subject to Father's reasonable visitation. It ordered a graduated visitation plan, under which Father has seven consecutive days of monthly visitation until LH turns two, ten consecutive days of monthly visitation from age two to three, and fourteen consecutive days of monthly visitation from age three to five. The order awarded Father summer visitation for three consecutive weeks in 2018, four consecutive weeks in 2019, six consecutive weeks in 2020, and eight consecutive weeks from 2021 on. It also established a holiday visitation schedule under which the parties were to alternate spring break and holidays, except Mother's and Father's days. It provided that "[a]ll holiday visitation shall supersede monthly visitation," and ordered Father to choose the dates for monthly visitation in odd-numbered years and Mother in even-numbered years. Finally, the district court ordered that "[o]nce the child starts kindergarten, if the parties cannot agree as to a monthly visitation schedule, they shall seek a modification of custody and/or visitation from the Court." [¶11] The district court gave the parties several options for travel methods and cost allocation. Both parties can drive, bearing their own fuel and mileage costs, and meet halfway to exchange LH. Father can choose to fly to Casper to pick up LH and fly with LH back to Phoenix, Arizona, at his cost. If Father chooses this option, Mother must fly to Phoenix at the end of the visit to pick up LH and return to Casper with him, bearing the cost of these flights. Father can also choose to fly into Denver and have Mother meet him there to drop off LH. Again, Mother must fly to Phoenix at the end of the visit to pick up LH, and she must bear the cost of the drive to and from Denver and the flights into and out of Phoenix. Finally, Father can drive to Wyoming for visitation, and Mother must pay mileage for his return trip to Arizona. Under the order, Father chooses where visitation occurs and which travel method they use. [¶12] Without stating the presumptive child support amount on the record, the district court deviated downward from statutory child support guidelines. It explained:

With regard to child support, I am imputing the ability for mother to earn a minimum wage at full-time employment. She is voluntarily unemployed at this point. And I am using the father's net income on a monthly basis of $3,552. I am considering the father's obligation for support of another child that is living in his home and his obligation to provide insurance for [LH] to arrive at a downward deviation for child support of $450 per month . . . .

[¶13] Mother timely filed a Notice of Appeal as to "all aspects of the Order of Paternity, Custody, Visitation, and Support . . . ." (Emphasis in original.) [¶14] The parties immediately struggled to comply with the district court's order, and the court held a hearing on their motions to clarify. The district court recognized that the holiday provisions permit the parties to manipulate the monthly visitation schedule because the order provides that, if a party selects monthly visitation that falls within a holiday period, the holiday visitation takes precedence over monthly visitation, and monthly visitation will not be made up absent agreement. So, for example, during an even-numbered year where Mother has LH during spring break, she can schedule Father's visitation within the spring break dates. Because the holiday supersedes monthly visitation, she would deprive Father of his visitation that month. Likewise, during odd-numbered years where Father is to have LH during spring break, he can schedule visitation outside of the spring break dates and exercise both monthly and holiday visitation. The district court described this arrangement as a "poison pill" meant to "get the parties to cooperate with one another, even though there hasn't historically been good cooperation." [¶15] The district court also clarified that Father is entitled to choose the visitation method, and he can schedule monthly visitation periods back-to-back, so long as they fall within different months. The court again referred to the arrangement as a "poison pill" designed to enhance cooperation. Mother objected, stating that it was inequitable for Father to choose the visitation method and that back-to-back visitation essentially afforded him custody of LH rather than visitation. The court responded that the goal of the visitation plan was "to allow [Father] the ability to develop a relationship with the child given the distance between the parties." The district court issued no written order on these clarifications. [¶16] The district court held another hearing after Father filed a Motion to Show Cause, which alleged that Mother had willfully violated the court's order and asked the court to hold her in contempt. Father testified that Mother had denied him visitation on several occasions and that she refused to cooperate with his choice of travel, which had been the Denver exchange option "[e]very single time." The court found that missed visitation had been due to miscommunication or misunderstanding and refused to hold Mother in contempt.

Father visited LH over the Christmas holiday but missed some scheduled monthly visitation because he got in a car accident, and Mother told him she could not reschedule.

DISCUSSION

I. Did Mother appeal an order over which this Court has jurisdiction? [¶17] Whether this Court has jurisdiction is a question of law that we review de novo. Inman v. Williams, 2008 WY 81, ¶ 10, 187 P.3d 868, 874 (Wyo. 2008). "Under W.R.A.P. 1.04(a), this Court has jurisdiction to entertain an appeal from a judgment or from an appealable order." SEG v. GDK, 2007 WY 203, ¶ 4, 173 P.3d 395, 395 (Wyo. 2007). "[W]ithin 30 days from entry of the appealable order," W.R.A.P. 201(a), a party must file a notice of appeal that "[identifies] the judgment or appealable order . . . appealed." W.R.A.P. 2.07(a)(2). [¶20] We review custody and visitation determinations for an abuse of discretion. Williams v. Williams, 2016 WY 21, ¶ 13, 368 P.3d 539, 543 (Wyo. 2016). "It has been our consistent principle that in custody matters, the welfare and needs of the children are to be given paramount consideration." Jacobson v. Kidd, 2018 WY 108, ¶ 14, 426 P.3d 813, 820 (Wyo. 2018) (quoting Meehan-Greer v. Greer, 2018 WY 39, ¶ 14, 415 P.3d 274, 278 (Wyo. 2018)). We will not overturn a district court's decision "unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle." Id. "To determine whether a district court has abused its discretion, we must rely on the district court's articulation of the factors which were considered and how those factors support its conclusions." IC v. DW, 2015 WY 135, ¶ 12, 360 P.3d 999, 1004 (Wyo. 2015) (quoting Stevens v. Stevens, 2014 WY 23, ¶ 26, 318 P.3d 802, 811 (Wyo. 2014)). The district court's articulation of its reasoning is critical when a court chooses an unconventional custody arrangement. Pace v. Pace, 2001 WY 43, ¶ 17, 22 P.3d 861, 867 (Wyo. 2001), overruled in part on other grounds by Bruegman, 2018 WY 49, 417 P.3d 517). [¶21] Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2018 Supp.) sets forth factors district courts must consider in exercising their discretion to create a custody arrangement in the best interests of the child:

. . . .
(i) The quality of the relationship each child has with each parent;
(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for the child's care by others as needed;
(iii) The relative competency and fitness of each parent;
(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
(v) How the parents and each child can best maintain and strengthen a relationship with each other;
(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
(vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
(viii) Geographic distance between the parents' residences;

(ix) The current physical and mental ability of each parent to care for each child;
(x) Any other factors the court deems necessary and relevant.

"No single factor is determinative," and "depending on the case, different factors will present a greater need for emphasis. The one constant is that the resolution must be in the best interests of the children . . . ." Stevens, 2014 WY 23, ¶ 26, 318 P.3d at 811. Applying these standards, we must conclude that the district court abused its discretion by fashioning a custody arrangement that is not in the best interests of the child. [¶22] First, the arrangement imposes instability on LH at a very young age. We have repeatedly explained that "stability in a child's life is of utmost importance." Williams, 2016 WY 21, ¶ 26, 368 P.3d at 548; see also Testerman, 2008 WY 112, ¶ 15, 193 P.3d at 1145; Reavis v. Reavis, 955 P.2d 428, 432 (Wyo. 1998), overruled in part on other grounds by Bruegman, 2018 WY 49, 417 P.3d 157. The order requires LH to alternate frequently between Mother, who has been his primary caregiver throughout his life, and Father, who had never spent any time alone with him or cared for him overnight at the time the court issued the order. While not determinative, primary caregiver status is a weighty factor that the district court must consider. Bruegman, 2018 WY 49, ¶ 41, 417 P.3d at 170; Williams, ¶ 19, 368 P.3d at 546; Walter v. Walter, 2015 WY 53, ¶¶ 10-12, 346 P.3d 961, 965 (Wyo. 2015); In re Paternity of JWH, 2011 WY 66, ¶ 11, 252 P.3d 942, 947 (Wyo. 2011). Although the district court acknowledged that LH had "lived the majority of his life with [Mother]," it did not address how removing him from her care for a week or more each month would disrupt his life. [¶23] Additionally, the district court failed to consider the difficulty the geographic distance between Mother and Father would cause LH. The court noted that the distance "requires significant hours to drive and a fairly significant flight [time] between the two locations" but did not appear to consider the impact of this regular disruption on LH. No matter which mode of transportation the parents choose, this visitation order will require LH to spend many hours each month on planes or in cars travelling between Wyoming and Arizona. As in Reavis, here the district court "provided scarce explanation for the custody arrangement ordered . . . ; one which substantially deviates from the requests of the parties and is unique to the experience of this court." 955 P.2d at 432. We have previously found an abuse of discretion where "[t]he district court offered no explanation regarding the children's ability to handle the sweeping changes imposed, [nor expressed] why such 2008 WY 135, ¶¶ 39-40, 196 P.3d at 183. Here, the record demonstrates Mother and Father's inability to communicate about their son, comply with visitation orders, or accommodate one another's schedules for the benefit of their son. The district court offered no basis for its expectation that they would be able to cooperate to the degree the order requires. Their history offers no evidence that the order's "poison pills" would be anything but poisonous. The "[b]lind hope . . . that forcing the responsibility of joint decision-making upon the warring parents will bring peace is not acceptable." Reavis, 955 P.2d at 434 (quoting Taylor v. Taylor, 508 A.2d 964, 972 (1986)). Before a court imposes a custody arrangement that requires a high degree of cooperation, it should have evidence that the parties can "work together to promote the child's best interest." Buttle, ¶ 39, 196 P.3d at 183. Our review of the record finds little support for that conclusion. [¶27] We recognize that crafting custody and visitation arrangements "encompasses one of the most difficult and demanding tasks assigned to a trial judge," Bruegman, 2018 WY 49, ¶ 11, 417 P.3d at 161 (quoting Pace, 2001 WY 43, ¶ 11, 22 P.3d at 865), and we sympathize with the district court's goal "to allow [Father] the ability to develop a relationship with the child[.]" But that laudable goal does not outweigh the burdens the district court's order imposes on LH. The district court abused its discretion in failing to adequately consider the best interests of the child; we reverse the custody and visitation order, and remand for further proceedings consistent with this opinion. III. Did the district court abuse its discretion in establishing Father's child support obligation? [¶28] "We review a district court's order modifying child support, including deviations from presumptive child support, for abuse of discretion." Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo. 2015).

We will not interfere with the district court's decision regarding [deviation from the presumptive child support amount] absent a procedural error or a clear abuse of discretion. In determining whether the district court has abused its discretion, we must decide whether it could reasonably conclude as it did. 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.

Keck v
. Jordan, 2008 WY 38, ¶ 6, 180 P.3d 889, 891 (Wyo. 2008) (quoting Gray v. Pavey, 2007 WY 84, ¶ 8, 158 P.3d 667, 668 (Wyo. 2007)). amount of his most recent paystub, but its pay period was only for half the month, meaning that his gross monthly income was roughly double the amount listed in his financial affidavit. Father testified that he had made a mistake and his gross monthly income "should be 4,000 [dollars]." He also testified, inconsistently, that his salary is $60,000 per year. [¶32] In fixing child support, the district court did not choose any of these contradictory figures. Instead, it stated that it was "using father's net income on a monthly basis of $3,552." The district court did not state the presumptive child support amount, and the record does not contain reliable evidence to ascertain what that amount might be. See Noonan v. Noonan, 2005 WY 145, ¶ 8, 122 P.3d 964, 966 (Wyo. 2005) (finding that the district court failed to "obtain sufficient financial evidence of both parties' income to make factual determinations and to comply with [statutory support guidelines]" because the only evidentiary support for its child support award was a brief affidavit estimating the parties' respective income). [¶33] Although the absence of a presumptive child support amount is a sufficient basis to reverse and remand, the record on the district court's deviation is also perplexing. "A court may deviate from the presumptive child support [amount] upon a specific finding that [it] would be unjust or inappropriate in that particular case." Wyo. Stat. Ann. § 20-2-307(b) (LexisNexis 2017). When a court deviates from the presumptive amount, it must "specifically set forth fully" the reasons for deviation. Id. The statute identifies particular factors for a district court to consider in determining whether to deviate, including "[t]he responsibility of either parent for the support of other children . . . ; [t]he cost of transportation of the child to and from visitation; [and] [t]he ability of either or both parents to furnish health, dental and vision insurance through employment benefits[.]" Id. at (b)(ii), (vii), (viii). [¶34] We agree with Mother that the record includes no evidence of the cost of insurance, and that the district court did not consider her financial obligations to her other child. It also did not consider the cost of transporting LH to and from visitation, even though its order required extensive travel, which the parties had struggled to pay prior to the entry of the order. These omissions standing alone may not constitute an abuse of discretion. See Windham, 2015 WY 61, ¶ 15, 348 P.3d at 841 (finding no abuse of discretion where the district court deviated downward after considering Mother's responsibility to support her other child, but not Father's responsibility to support his other child). However, we urge the district court to obtain and consider additional evidence to support any deviation in order to comply with Wyo. Stat. Ann. § 20-2-307(b)'s requirement to "specifically set forth fully" its reasons for deviation.

Mother's opening brief also argued that the district court imposed new obligations at the clarification hearing, resulting in a de facto modification of its order. However, neither the district court nor Father believed any new obligation arose at the clarification hearing, Mother conceded in her reply that "without a written order [the hearing was] little more than an expression of the district court's intent," and our review of that proceeding likewise does not reveal any obligations beyond those in the district court's order.

We agree that the visitation plan affords Father substantial visitation and "seems inconsistent with the district court's award of primary custody to [Mother]." Testerman v. Testerman, 2008 WY 112, ¶ 14, 193 P.3d 1141, 1145 (Wyo. 2008), overruled in part on other grounds by Bruegman v. Bruegman, 2018 WY 49, 417 P.3d 157 (Wyo. 2018). However, we have previously declined to hold that, standing alone, this inconsistency constitutes an abuse of discretion, and we likewise do not rely on it for our holding here. JS v. MB, 2010 WY 114, ¶¶ 8, 16, 237 P.3d 974, 976, 978 (Wyo. 2010).

Williams, Testerman, and Reavis each related instability to joint custody arrangements, which were presumptively disfavored at the time those cases were decided. Williams, ¶ 26, 368 P.3d at 548; Testerman, ¶ 15, 193 P.3d at 1145; Reavis, 955 P.2d at 432. Bruegman overruled our "archaic" presumption against joint custody, ¶¶ 15-16, 417 P.3d at 163-64, but stability remains an important consideration in determining the best interests of the child.

Mother also argues that the district court could not consider Father's other son in making custody and support determinations because the child was born out of wedlock and his paternity has not been adjudicated. She relies on an Arizona case, Castillo v. Lazo, 386 P.3d 839, 842 (Ariz. Ct. App. 2016), which stated that a birth certificate is insufficient to establish paternity in an action challenging a purported father's paternity. See also Ariz. Rev. Stat. § 25-812 (LexisNexis 2018). However, although a purported father's signature on a birth certificate is not sufficient to establish paternity in such an action, it is sufficient to trigger a presumption of paternity for other purposes. Ariz. Rev. Stat. § 25-814(A)(3) (LexisNexis 2018). Here, Father is listed on the child's birth certificate, both he and his fiancée testified that he supports the child, and no one challenges Father's relationship to the child, including Mother whose counsel stated he "[had] no doubt" that Father is the biological father. For these reasons, we decline to hold that the district court abused its discretion in considering his obligations to his second child. --------

CONCLUSION

[¶35] We remand for further proceedings consistent with this opinion.