Carl S. Olsen v. Candy M. Olsen , 2013 Wyo. LEXIS 120 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 115APRIL TERM, A.D. 2013
September 27, 2013
CARL S. OLSEN,
Appellant
(Plaintiff),
v. No. S-13-0033
CANDY M. OLSEN,
Appellee
(Defendant).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Pro se.
Representing Appellee:
No appearance.
Before KITE, C.J., and HILL, VOIGT, and BURKE, JJ., and TYLER, D.J.
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.
BURKE, Justice.
[¶1] Appellant, Carl S. Olsen, appeals the district court’s denial of his motion to
modify the custody of his three children. He also challenges the district court’s finding
that he was in contempt of court for failing to comply with the divorce decree. We will
affirm.
ISSUES
[¶2] The issues presented by Mr. Olsen, reworded for the sake of clarity, are as follows:
1. Did the district court abuse its discretion when it
determined there was no material change in
circumstances?
2. Did the district court deny due process to Mr. Olsen?
3. Did the district court abuse its discretion by failing to give
paramount consideration to the best interests of the
children?
4. Did the district court abuse its discretion in awarding
certain costs to Ms. Olsen?
5. Did the district court improperly fail to consider
contradictory testimony?
6. Did the district court abuse its discretion when it found
Mr. Olsen in contempt?
FACTS
[¶3] The parties were married in 2000 and divorced in 2010. Custody of their three
children was awarded to Ms. Olsen.1 Mr. Olsen appealed that decision. We affirmed.
Olsen v. Olsen, 2011 WY 30, ¶ 1, 247 P.3d 77, 78 (Wyo. 2011).2
1
We acknowledge that Ms. Olsen resumed the use of her former name, Candy M. Judd, following the
divorce. However, to avoid confusion and remain consistent with the pleadings in this case, we refer to
her as Ms. Olsen in this opinion.
2
We reversed the district court’s decision with regard to one aspect of the property division, but that issue
is not relevant to the current appeal.
1
[¶4] Even before we issued that decision, Mr. Olsen filed a petition in district court
seeking a modification awarding him custody of the children. He alleged, among other
things, that the children’s physical and mental health had deteriorated while in
Ms. Olsen’s care, that Ms. Olsen was unable to provide basic provisions for the children,
and that Ms. Olsen, in bad faith, planned to move with the children from Wyoming to
Utah.3 He further alleged that he could provide the children with a stable and caring
environment, so that the best interests of the children would be served by awarding
custody to him. While Mr. Olsen’s petition was pending, Ms. Olsen filed a motion
seeking to have Mr. Olsen held in contempt for failing to comply with the divorce
decree’s order to list their jointly-owned real property for sale.
[¶5] Following a three-day hearing, the district court issued a decision letter denying
Mr. Olsen’s petition to modify custody on the basis that Mr. Olsen had not demonstrated
a material change in circumstances. It also granted Ms. Olsen’s request to hold
Mr. Olsen in contempt on the basis that he had willfully disobeyed the order to list the
property for sale. Mr. Olsen filed this timely appeal. He appears pro se.
DISCUSSION
[¶6] As a preliminary matter, W.R.A.P. 7.05(a)(1) provides that a principal brief shall
not exceed seventy pages except by permission of the appellate court. Mr. Olsen’s brief
exceeds eighty pages. Further, most of the text is single-spaced, contrary to the mandate
of W.R.A.P. 7.05(b)(2). If the text were double-spaced, the length of Mr. Olsen’s brief
would greatly exceed the page limit. Pursuant to W.R.A.P. 1.03, these violations of our
appellate rules are grounds for “such action as the appellate court deems appropriate,
including but not limited to: refusal to consider the offending party’s contentions;
assessment of costs; dismissal; and affirmance.”
[¶7] We recognize that a “pro se litigant is entitled to some leniency from the stringent
standards applied to formal pleadings drafted by attorneys.” Young v. State, 2002 WY
68, ¶ 9, 46 P.3d 295, 297 (Wyo. 2002). More significantly, this case involves the
custody and welfare of three children. For these reasons, we will not dismiss the appeal
or summarily affirm the district court.
[¶8] However, we will not simply overlook these violations. Even with pro se parties,
“there must be a reasonable adherence to the procedural rules and requirements of the
3
Ms. Olsen and the children moved to Utah in April, 2011, and had been living there for approximately
ten months at the time of the hearing on Mr. Olsen’s petition for change of custody.
2
court.” Id. Faced with similar circumstances in the past, we have refused to consider that
portion of a brief in excess of the page limit. In re Adoption of GSD, 716 P.2d 984, 986
(Wyo. 1986). Because the bulk of Mr. Olsen’s brief is single-spaced, it is difficult to
determine the number of pages by which his brief actually exceeds the limit. Instead, the
sanction we deem appropriate in this case is to refuse to consider Mr. Olsen’s fourth
issue, a contention that the district court erred in requiring him to pay certain of
Ms. Olsen’s litigation costs.
Issue 1: Material Change in Circumstances
[¶9] Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2011) provides that a court “may
modify an order concerning the care, custody, and visitation of the children if there is a
showing by either parent of a material change in circumstances since the entry of the
order in question and that the modification would be in the best interests of the children.”
Under this statute, modification of child custody is a two-step process. The first step
involves a showing of “a material change in circumstances since the entry of the order in
question. The second step requires the court to determine whether a modification will be
in the best interests of the children.” Hayzlett v. Hayzlett, 2007 WY 147, ¶ 9, 167 P.3d
639, 642 (Wyo. 2007) (internal citations omitted).
[¶10] In Mr. Olsen’s case, the district court determined that there was no material
change in circumstances. Mr. Olsen contends that there were substantial and material
changes in the circumstances. He therefore claims that the district court’s decision
represents an abuse of discretion.
[¶11] As we recently observed in JKS v. AHF, 2013 WY 97, ¶ 5, 307 P.3d 852, 854
(Wyo. 2013), child custody is a question committed to the sound discretion of the district
court, and accordingly, we review a district court’s child custody decision for abuse of
discretion.
We will not interfere with the district court’s custody
determination absent procedural error or a clear abuse of
discretion. In determining whether an abuse of discretion has
occurred, our primary consideration is the reasonableness of
the district court’s decision in light of the evidence presented.
We view the evidence in the light most favorable to the
district court’s determination, affording every favorable
inference to the prevailing party and omitting from our
consideration the conflicting evidence.
Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087, 1089 (Wyo. 2009) (internal citations
omitted).
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[¶12] Mr. Olsen supports his claim with a list, more than fifteen single-spaced pages in
length, of all the evidence he interprets as contrary to the district court’s decision.
However, when we apply the standard of review explained above, this is not the evidence
we consider. Instead, we consider the evidence favorable to the district court’s decision.
As we have previously stated, “Our review entails evaluation of the sufficiency of the
evidence to support the district court’s decision, and we afford to the prevailing party
every favorable inference while omitting any consideration of evidence presented by the
unsuccessful party.” Reavis v. Reavis, 955 P.2d 428, 431 (Wyo. 1998).
[¶13] Our review of the record reveals sufficient evidence to support the district court’s
decision. After a three day hearing that encompassed testimony from seventeen
witnesses, the evidence before the district court was voluminous. We will discuss
representative examples, but find it unnecessary to review all of the evidence in detail.
[¶14] In its decision letter, the district court observed that, at the divorce trial, almost
none of the allegations made by Mr. Olsen had been borne out by the evidence, and
“again in the post-divorce era, [Mr. Olsen] has made many allegations that were, at a
minimum, overstated.” The district court then listed a number of circumstances that it
found unchanged since the divorce. With regard to Mr. Olsen:
[He] still has substandard housing arrangements and purports
to be the proper custodial parent even though he lives in a two
bedroom residence and is about to be married. His fiancée
[now] is different than the woman he was in a relationship
with at the time of the first hearing. He points to an incident
of admitted marijuana use by the mother, certainly
inappropriate conduct, but attempted in a number of ways to
gloss over his own substance abuse in the form of a driving
while under the influence conviction. Whether one is better
or more harmful to the children than the other, it supports that
there is little change in the parenting or in the individual
decision making of these two parties since the time of the
divorce.
[¶15] Mr. Olsen testified at the hearing that he lived in a two-bedroom mobile home.
When the children stayed with him, the two daughters shared one bedroom and Mr. Olsen
and his son shared the other. He acknowledged that these living arrangements would not
work if his fiancée moved to Wyoming to live with him. This evidence supports the
district court’s finding relating to substandard living arrangements.
[¶16] Ms. Olsen admitted smoking marijuana in January, 2011. Mr. Olsen admitted that
he pled guilty to a charge of driving while under the influence of alcohol in South Dakota
in November, 2010. He conceded that his driving privileges had been suspended, but
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asserted that the suspension applied only in South Dakota. He testified that he had
obtained a “probationary” driver’s license, and indicated that his driving privileges had
not been restricted in Wyoming. A witness employed by the Wyoming Department of
Transportation contradicted his testimony. She testified that if a Wyoming resident’s
driving privileges are suspended by any other state, those privileges are also suspended in
Wyoming. She indicated that Mr. Olsen’s driving privileges in Wyoming were
suspended from January 7 through April 6, 2011. She confirmed that Mr. Olsen had
received a probationary driver’s license, but clarified that it allowed Mr. Olsen to drive
only for certain limited purposes, such as medical emergencies, court appearances, or
employment. She stated that the probationary license would not have authorized
Mr. Olsen to drive to Utah to pick up his children for visitation. This evidence amply
supports the district court’s finding as to Mr. Olsen’s efforts to “gloss over” his own
problems.
[¶17] The district court also made these findings with regard to Mr. Olsen:
Likewise at the time of the divorce the Court made findings
concerning domestic violence during the marriage by the
father. The Court was not, apparently, emphatic enough
about that finding at the time. The father was abusive and
acting in a controlling fashion during the marriage. The
Court finds again that the evidence here supports that he very
often disagrees with the mother’s decision making because he
cannot control it. The trial evidence, especially the testimony
of the [father] himself, is replete with examples. For instance,
[his] assertion that he had to “follow the court order” and
subject the children to weekend drives to and from Utah.
This choice was not generated by the best interest of these
children. Instead this was clearly a result of the father’s
frustration and his complete inability to agree with any
suggestion the mother might make about alternatives that
might be better for [him] and his children. He refuses to
accord her or anything she suggests with any respect. The
decree allows for agreement of the parties to work around
problems and now, as at the time of the divorce, the [father]
will agree to nothing.
(Emphasis omitted.)
[¶18] The record includes several examples of Mr. Olsen’s disagreements with
Ms. Olsen and his controlling behavior. The example cited by the district court involved
Mr. Olsen’s visitations with his children after they moved to Utah. Mr. Olsen testified
that it is around 700 miles from Cheyenne to the children’s home in Utah. It is a ten- or
5
eleven-hour drive each way. On four occasions after the children moved to Utah,
Mr. Olsen exercised his weekend visitation rights by driving to Utah, picking up the
children at 6 p.m. on Friday, and driving them to Cheyenne for the weekend. Ms. Olsen
then drove to Cheyenne on Sunday, picked up the children at 6 p.m., and took them back
to Utah. That meant the children arrived home at approximately 5 a.m., and needed to be
ready for school only three hours later. Mr. Olsen admitted that it was a hardship on the
children to travel from Utah to Cheyenne for weekend visitation. Ms. Olsen testified that
“it wasn’t in the best interests of the kids to be traveling back and forth between Utah and
Wyoming,” and that she had asked Mr. Olsen to keep the children in Utah during his
visitation. The district court commented in the decision letter that it was “appalled” that
Mr. Olsen had subjected the children to such lengthy car trips in a single weekend. This
evidence supports the district court’s findings that Mr. Olsen’s decisions were “not
generated by the best interest of these children.”
[¶19] The evidence also supports the district court’s observation that many of
Mr. Olsen’s allegations against Ms. Olsen were unproven. He alleged, for example, that
Ms. Olsen had taken his two daughters out of counseling. To the contrary, Ms. Olsen
testified that the older daughter was in counseling. The younger daughter was screened
by the same counselor, who concluded she should participate in family therapy rather
than individual counseling. Ms. Olsen conceded that she did not take the children to
counseling immediately after moving to Utah, but the delay of a few months was due to
an insurance issue. Mr. Olsen admitted that, until the first day of the hearing, he did not
know that the daughters had been receiving counseling.
[¶20] With regard to Ms. Olsen, the district court acknowledged evidence that the
children were not doing well in school and had health problems, but found that these
problems were not “related to poor or inadequate care by the mother.” It also
acknowledged evidence of changes in the children’s behavior and attitudes, but found
that these “cannot be laid entirely on the mother or the father but perhaps points out the
difficulty for these children in what has amounted to constant ongoing litigation for
years.” These findings are also supported by the evidence of record.
[¶21] Based on these and other findings, the district court determined that circumstances
had not materially changed with regard to either Mr. Olsen or Ms. Olsen. The evidence,
viewed in a light favorable to the district court’s decision, provides ample support for that
determination. The district court made a reasonable decision based on the evidence
presented, and did not abuse its discretion.
[¶22] Two other aspects of the district court’s determination merit our attention. First,
the guardian ad litem appointed to represent the children recommended a finding that
there had been a material change of circumstances, and further recommended that
custody be transferred to Mr. Olsen. In its decision letter, the district court indicated that
it had considered the recommendations of the guardian ad litem, but did not agree with
6
them. A court is not required to accept the recommendations of a guardian ad litem. As
this Court has often said, “our rule is that the credibility of witnesses, the weight of the
evidence, and conflicts in the evidence must be resolved by the finder of fact.” Montee
v. State, 2013 WY 74, ¶ 23, 303 P.3d 362, 367 (Wyo. 2013), quoting Aden v. State, 717
P.2d 326, 328 (Wyo. 1986).
[¶23] Second, in its decision letter, the district court stated that Ms. Olsen’s move to
Utah “should generally be discounted in terms of a substantial change.” At the time the
decision letter was issued, that statement was in accord with our precedent. See Watt v.
Watt, 971 P.2d 608, 614 (Wyo. 1999). Watt was subsequently overruled. In Arnott v.
Arnott, 2012 WY 167, ¶ 40, 293 P.3d 440, 458 (Wyo. 2012), we stated that, “With this
decision, we explicitly recognize that a relocation by the primary physical custodian, as
well as ‘factors that are derivative of the relocation’ – including ‘the inherent difficulties
that the increase in geographical distance between parents imposes’ – may constitute a
material change in circumstances sufficient to warrant consideration of the best interests
of the children.”
[¶24] Mr. Olsen’s brief quotes from Arnott. He does not address issues such as whether
this change in law applies to his case, or whether Arnott should apply retroactively. It is,
however, unnecessary for us to decide how or whether Arnott applies in Mr. Olsen’s case.
In Arnott, our focus was on the “strong presumption in favor of the right of a custodial
parent to relocate with her children” recognized in the Watt opinion. See Arnott, ¶ 21,
293 P.3d at 449 (emphasis omitted), quoting Watt, 971 P.2d at 614. “Ultimately, we
agree[d] with the conclusion reached in other jurisdictions that presumptions in favor of
one parent or another are detrimental to the interests of all parties in cases involving
modification of child custody based on relocation of a custodial parent.” Arnott, ¶ 38,
293 P.3d at 457. On that basis, we ruled that such a presumption “no longer applie[d].”
Id., ¶ 41, 293 P.3d at 458.
[¶25] In the case before us now, the district court did not apply any presumption in favor
of Ms. Olsen’s right to relocate. The district court cataloged the ways in which
Mr. Olsen’s circumstances were unchanged. It recognized that Ms. Olsen’s relocation
had resulted in some changes, but noted that some of those changes were beneficial. The
district court recognized that the move
has in a number of ways increased her stability. Employment
prospects were potentially better, and have played out in that
fashion in Utah. The increased stability for the children
around her family (emphasizing again that the [father’s]
extended family here was also of great benefit to the children)
also benefited the children and her ability to parent as a single
mother. The shortcomings pointed out, such as some delay in
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starting counseling, were not changes at all, but events
adequately explained by the circumstances of moving.
[¶26] Ultimately, the district court concluded that Mr. Olsen’s unchanged circumstances,
behaviors, and attitudes outweighed any changes resulting from the relocation. The
decision is consistent with the evidence in this record, and we cannot conclude that the
district court abused its discretion in finding no material change in circumstances.
Issue 2: Due Process
[¶27] Mr. Olsen asserts that he was denied due process because the district court judge
refused to recuse himself from the case, even though he was aware that Mr. Olsen had
filed a complaint against him with the Commission on Judicial Conduct. This assertion is
without merit.
[¶28] Motions for a change of judge are governed by W.R.C.P. 40.1(b)(2), which
specifically states that such motions “shall be supported by an affidavit or affidavits of
any person or persons, stating sufficient facts to show the existence of such grounds.”
Mr. Olsen provided no such affidavit to the district court. In his brief, Mr. Olsen suggests
that a supporting affidavit was not needed because his motion was only “a request for a
voluntary recus[al] by the Trial Court Judge,” and not a “motion to disqualify as it did not
address any specific evidence of bias only the possibility of such.” His argument,
apparently, is that his informal request was not governed by W.R.C.P. 40.1(b)(2). This
argument finds no support in Wyoming case law. To the contrary, we have said that a
movant is “required to submit an affidavit stating sufficient facts to show the existence of
judicial bias or prejudice against him.” Reichert v. State, 2006 WY 62, ¶ 37, 134 P.3d
268, 278 (Wyo. 2006). Mr. Olsen also seems to suggest that a judge must recuse himself
in every instance when a complaint against him has been filed by one of the litigants.
This argument also lacks support in our case law. Such a rule would encourage litigants
to file groundless complaints whenever they wanted a different judge. Mr. Olsen was not
denied due process.
Issue 3: Best Interests of the Children
[¶29] Mr. Olsen contends that the district court erred by disregarding the best interests of
the children. As we explained above, however, modification of child custody is a two-
step process. The first step involves a showing of “a material change in circumstances
since the entry of the order in question. The second step requires the court to determine
whether a modification will be in the best interests of the children.” Hayzlett, ¶ 9, 167
P.3d at 642 (internal citations omitted). If the court finds no material change in
circumstances in the first step, it is not required to take the second step of evaluating the
best interests of the children. In Mr. Olsen’s case, the district court found no material
change in circumstances.
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[¶30] In addition, Mr. Olsen has failed to establish that the district court did not consider
the best interests of the children. Many of the facts relied on by the district court in
determining if there was a material change in circumstances also relate to the best
interests of the children. Moreover, when granting the divorce, the district court
explicitly made the decision that it was in the best interests of the children to be in
Ms. Olsen’s custody. We cannot agree with Mr. Olsen that the district court ignored the
best interests of the children in this case.
Issue 4: Award of costs to Ms. Olsen
[¶31] For the reasons explained at the beginning of this discussion, we decline to
consider Mr. Olsen’s contentions relating to this issue.
Issue 5: Contradictory Evidence
[¶32] In this issue, Mr. Olsen makes a passionate effort to demonstrate that Ms. Olsen
and another witness on her behalf presented contradictory testimony and committed
perjury. He contends that the district court erred by failing to consider these
contradictions. We agree that the record indicates some discrepancies in the testimony of
Ms. Olsen and the other witness. There are also discrepancies in Mr. Olsen’s testimony.
However, Mr. Olsen has made no showing that the district court ignored these
discrepancies. In fact, the district court observed in its decision letter that Mr. Olsen’s
“candor is again in question,” demonstrating that it had considered the credibility of the
witnesses in making its decision. As stated earlier in this opinion, “our rule is that the
credibility of witnesses, the weight of the evidence, and conflicts in the evidence must be
resolved by the finder of fact.” Montee, ¶ 23, 303 P.3d at 367, quoting Aden, 717 P.2d at
328. We will not disturb the district court’s resolution of the credibility of the witnesses.
Issue 6: Contempt
[¶33] In his final issue, Mr. Olsen challenges the district court’s decision holding him in
contempt.
This Court will not disturb an order holding a party in civil
contempt in a domestic relations case absent a serious
procedural error, a violation of a principle of law, or a clear
and grave abuse of discretion. We review questions of law de
novo. Greene v. Finn, 2007 WY 47, ¶ 5, 153 P.3d 945, 948
(Wyo. 2007). In reviewing the exercise of a district court’s
broad discretion to sanction contumacious acts, we must
determine whether the court reasonably could have concluded
9
as it did. Stephens v. Lavitt, 2010 WY 129, ¶ 18, 239 P.3d
634, 639 (Wyo. 2010).
Roberts v. Locke, 2013 WY 73, ¶ 14, 304 P.3d 116, 120 (Wyo. 2013). Mr. Olsen makes
no claim of procedural error or violation of a principle of law. Although he attempts to
frame his argument in the context of his constitutional rights, the real basis of his claim is
that there was insufficient evidence to prove a willful failure to comply with the district
court’s order.
[¶34] In its divorce decree, the district court ordered that certain real property “will be
listed for sale immediately but in any event not later than thirty (30) days after this
Decree is filed.” Proceeds of the sale were to be applied to pay off debt associated with
the property, with any remaining proceeds to be divided equally between Mr. Olsen and
Ms. Olsen.
[¶35] At the hearing on the motion to modify custody, Mr. Olsen testified that he was
aware of the court’s order requiring the listing of the property for sale. He agreed that he
had not complied with that order. He provided no explanation for failing to list the
property for sale. The district court, in its decision letter, wrote that, “based on the trial
evidence the Court has to find that the plaintiff in this case willfully disobeyed that court
order, and beyond that may have done so out of spite or a misguided attempt to further
control the post-divorce relationship between the parties.”
[¶36] We have previously discussed Mr. Olsen’s efforts to maintain control. The record
also supports the district court’s finding that Mr. Olsen had taken actions motivated by
spite toward Ms. Olsen. An example of spite involves the motorcycle awarded to
Ms. Olsen in the divorce decree. At the time of the divorce, the motorcycle was in
Mr. Olsen’s possession. When Ms. Olsen went to retrieve the motorcycle, she found it
“in pieces,” and she “had to take the motorcycle in parts.” We conclude that the evidence
in this record, along with the inferences reasonably drawn from that evidence, supports
the district court’s finding that Mr. Olsen willfully violated the court’s order.
CONCLUSION
[¶37] The district court’s decision is affirmed.
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