Landon Gregory Greer v. Alba Rosy Greer ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 35
OCTOBER TERM, A.D. 2016
March 30, 2017
LANDON GREGORY GREER,
Appellant
(Defendant),
v. S-16-0181
ALBA ROSY GREER,
Appellee
(Plaintiff).
Appeal from the District Court of Park County
The Honorable John A. Fenn, Judge
Representing Appellant:
Christopher J. King of Greear Clark King, P.C., Worland, Wyoming
Representing Appellee:
Alex H. Sitz, III of Meinecke & Sitz, LLC, Cody, Wyoming
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
DAVIS, Justice.
[¶1] Landon Gregory Greer (Father) and Alba Rosy Greer (Mother) were divorced in
October of 2014, while both lived in Cody, Wyoming. Mother received custody of the
children, and Father was awarded liberal visitation tailored to his seasonal work schedule.
When Mother was unable to find suitable employment in Cody, she found a job in
Arizona, and moved there with the children after giving Father notice of the move.
Mother filed for a change in Father’s visitation, and Father cross-filed for a change in
custody and to have Mother held in contempt. The district court declined to change
custody or to hold Mother in contempt. Father appealed, contending that both decisions
were an abuse of discretion. We affirm.
ISSUES
[¶2] We restate the issues presented as follows:
1. Did the district court abuse its discretion when it did not change custody
from Mother to Father after Mother relocated from Cody, Wyoming to Chandler,
Arizona?
2. Did the district court abuse its discretion in failing to hold Mother in
contempt after Father was unable to exercise visitation ordered in the decree due to her
move to Arizona?
FACTS
[¶3] Mother was born in the Dominican Republic, and she and Father met when he was
on a church mission there. After his mission was complete and he had returned to the
United States, Father went back to the Dominican Republic and asked Mother to marry
him. She agreed and immigrated to Cody, Wyoming, where Father resided. They were
married a few months later.
[¶4] Mother was able to learn English, obtain citizenship, and complete an online
bachelor’s degree in criminal justice from the University of Wyoming. During the
marriage, Father worked in the family paving business, and Mother was a stay-at-home
mom. Father also served on the Cody City Council. The couple had two children, DBG
(male, born 2006) and MRG (female, born 2008).
[¶5] The relationship began to unravel, and Mother filed for divorce early in 2014.
Custody and financial issues were hotly contested in a two-day divorce trial held in
September 2014. The district court entered a comprehensive divorce decree
memorializing the above facts on October 21, 2014. The court declined to award joint
1
physical custody as requested by Father, and instead awarded Mother primary physical
custody.
[¶6] However, the court awarded Father liberal visitation, including six consecutive
weeks during January through March when he was not so busy in the paving business.
Mother was awarded the marital home.
[¶7] Mother was unable to obtain suitable employment in Cody after the divorce. She
later testified that she applied for approximately thirty jobs, including at a fast-food
restaurant and Walmart. She was able to work part-time cleaning houses and teaching
Zumba classes. Her employment prospects were probably not enhanced by criminal
charges involving an altercation with Father involving a firearm. She was charged with
domestic battery and reckless endangerment. She was ultimately allowed to plead guilty
to only one of the charges and received a deferred sentence under Wyo. Stat. Ann. § 7-
13-301.1 She later testified that she was placed on probation for a year, which had almost
elapsed without a violation at the time of the custody hearing involved in this appeal.
The guilty plea was accepted but not entered by the court, and if Mother successfully
completes her probationary period, she will not have a criminal record on this charge, as
it will be dismissed.
[¶8] Mother was not able to keep up with her financial commitments, and so she made
an arrangement with a friend to transfer her an interest in the marital home she had
received in the divorce in exchange for a line of credit of up to $100,000. By February of
2016, she had borrowed around $70,000 against the home.
[¶9] After taking a trip to Phoenix, Mother eventually decided that she would look into
employment in that area. Her preliminary inquiries generated interest from prospective
employers – her ability to speak both Spanish and English made her more employable in
an area with a larger Hispanic population. She was eventually offered a job as a
receptionist at the Maricopa County Public Defender’s office in the Phoenix area. It paid
around $10.00 per hour and included benefits.
[¶10] Mother notified Father of her intention to move with the children on June 3, 2015,
and filed a notice of address change as required by the parties’ divorce decree on June 12.
She also filed a motion for change of Father’s visitation to adjust to the planned move on
June 19. Father responded with a petition to modify custody, support, and visitation,
asking the court to award him primary custody and to otherwise modify the decree to
adjust to this change. He also asked the court to hold Mother in contempt because (we
infer) he was not able to exercise his regular visitation due to the move.2
1
The record does not tell us which.
2
These documents were not made part of the record on appeal. Our review is therefore limited to the
district court’s summary of them and the hearing transcript.
2
[¶11] Meanwhile, Mother encountered complications with her plan to go to work for the
Maricopa County Public Defender’s office. Arizona requires a person who works for
governmental entities or in child or elder care to have an IVP3 card. We gather from the
record that when one applies for such a card, she is fingerprinted and her criminal record
is checked. Mother was notified that she did not qualify for a card because of the Cody
charges or deferral.
[¶12] However, an exception can be made for good cause. Mother was able to obtain
support from members of the Cody community, including the judge who sat on her
criminal case, and she eventually received the required card under the good-cause
exception. Father points out that she moved to Arizona without a job, because she could
not be employed at the public defender’s office without the card. She was unemployed
from June until September, waiting for the card.
[¶13] In the meantime, Mother found a different job as a substitute teacher at a charter
school, working for a private company that supplies substitutes to schools. That job paid
$22.00 per hour, with no benefits, on a contract basis. Mother worked 25 to 30 hours per
week, which allowed her to get her children ready for school and meet them at the end of
the school day. At the time of the custody hearing, she had been offered a permanent
position with the charter school at which she had been a substitute. This position will
provide benefits. She was not sure of the salary or hourly rate of her new job at the time
of the hearing.
[¶14] The children attend a school which has a number of two-week breaks throughout
the year, rather than a traditional long summer break. Father is unable to exercise the six
continuous weeks of visitation during the slow season for paving that he received under
the decree because of the school schedule and distance between the parties.
[¶15] In the meantime, Father’s life also changed. He remarried to a woman who has
four children by a previous marriage. The couple was expecting another child in June of
2016 when the hearing in this matter was held. The four children are similar in age to
Mother and Father’s two children, and they get along well and enjoy spending time with
each other.
[¶16] The parties transport the children for visitation via an economy airline that flies
from Mesa, Arizona to Billings, Montana, and then by automobile. They have had the
kinds of disputes about timing, etc., that are common in these emotionally-charged
situations when there is not yet a court order specifically delineating the parties’ rights
and responsibilities.
3
The card is incorrectly referred to as an IBP card in the transcript.
3
[¶17] The district court held a hearing on the pending motions on February 19, 2016. It
issued a comprehensive order on April 11, 2016. The parties agreed that there had been a
material change of circumstances that allowed the court to revisit custody and visitation
under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2015). The court therefore analyzed
the factors contained in Wyo. Stat. Ann. § 20-2-201 (LexisNexis 2015):
(i) The quality of the relationship each child has with each parent. The court
found that this factor did not weigh in either parent’s favor, although it noted that Father
could perhaps have done more to maintain the relationship after Mother moved to
Arizona.
(ii) The ability of each parent to provide adequate care for each child
throughout each period of responsibility, including arranging for each child’s care by
others as needed. The court found that both parents were satisfactory in this area, and
that the factor did not weigh in favor of either.
(iii) The relative competency and fitness of each parent. The court found both
parents competent and fit. However, it noted that Father would have seven children to
care for if custody were changed, and that Mother would have more time and attention to
devote to the couple’s two children than Father as a result. It therefore weighed the
factor slightly in Mother’s favor.
(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. The court found that the parties were willing
to accept the responsibilities of parenting, but that Mother has been the primary caregiver
for the children, and that removing them from her care would be devastating to them. It
noted that the parties had had some disagreements regarding the children after Mother
moved. It concluded that the first part of the factor weighed in Mother’s favor, and the
second was neutral.
(v) How the parents and each child can best maintain and strengthen a
relationship with each other. The court found that Mother had done as much as she
could to help Father maintain his relationship with the children. She sent him text
messages and emails updating him on their activities, and purchased the children watch
phones so that he could call them when he wished, and they could do the same. On the
other hand, Father had not taken advantage of these tools to the extent he could have. It
therefore weighed this factor in Mother’s favor.
(vi) How the parents and each child interact and communicate with each other
and how such interaction and communication can be improved. The court found that the
parties had problems communicating with each other, and that this factor was neutral.
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(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 of privacy. Neither parent scored well on this factor, and thus the court found
that it did not weigh in favor of either.
(viii) Geographic distance between the parents’ residences. The parties live over
1,000 miles apart. That factor did not weigh in favor of either party, but the court
observed that it impacts the custody and visitation it is able to award.
(ix) Current physical and mental ability of each parent to care for each child.
Both parents were found to be capable of caring for each child, and thus the factor was
found to be neutral.
(x) Other factors the Court deems necessary and relevant. The court noted
that because this case involves relocation, it had to balance certain other factors identified
in Arnott v. Arnott, 2012 WY 167, ¶¶ 30-31, 293 P.3d 440, 454 (Wyo. 2012), and other
cases preceding it.
a. Whether an established custodial environment continues to exist despite a
change in the children’s domicile. The court found that it did, because Mother had always
been the primary custodial parent, and to change that would upend that historic
arrangement.
b. The attributes and characteristics of the parents and children and how the
children have fared under the original custody and visitation arrangement. The court
noted that the children had fared well under the original custody arrangement.
c. The relocating parent’s motives for proposing the move. Mother
established that she moved in order to find employment that would allow her to support
herself and the children. Although she made a false start due to the initial inability to get
an IVP card, she obtained a position that paid relatively well and would soon be in a full-
time teaching position with benefits.4 She should not have to exhaust the equity in the
home awarded her in the divorce to support herself. The court found itself extremely
reluctant to force Mother to return to an area where she cannot support herself or the
children.5
d. Whether reasonable visitation is possible for the remaining parent.
Because the children have multiple extended breaks during the school year in Arizona,
4
Mother testified that her new employer will allow her to begin work as she did when she was a
substitute so that she can get the children ready for school.
5
Mother testified at the hearing that if the court changed custody to Father, she would return to Cody
because she would not be separated from her children, regardless of how difficult that would be – even if
she had to “eat rock and drink water.”
5
Father can have extended time with them during these periods. He can also exercise
additional visitation with them in Arizona if he chooses. Therefore, although it will be
diminished from that ordered under the decree, Father could still have reasonable
visitation.
[¶18] The court concluded that it was in the children’s best interest for Mother to
continue as the primary custodial parent. It made modifications to the decree to provide
Father as much visitation as possible under the changed circumstances. Finally, it
declined without elaboration to hold Mother in contempt. Father timely perfected this
appeal.
DISCUSSION
A. Determination to Allow Mother to Have Continued Primary Custody
[¶19] Our standard of review in challenges to custody decisions is well-established.
We review orders modifying custody, visitation, and child
support for an abuse of discretion and will not disturb an
order regarding custody or visitation so long as the court
could reasonably conclude as it did. Roemmich v. Roemmich,
2010 WY 115, ¶ 7, 238 P.3d 89, 92 (Wyo. 2010). We
evaluate the reasonableness of a decision in relation to the
evidence presented, viewing it in the light most favorable to
the district court’s determination, affording every favorable
inference to the prevailing party, and ignoring any conflicting
evidence. Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 7, 297
P.3d 768, 772 (Wyo. 2013).
Tracy v. Tracy, 2017 WY 17, ¶ 46, 388 P.3d 1257, 1267 (Wyo. 2017).
[¶20] We have not underestimated the difficulties district judges face when dealing with
custody disputes when one parent relocates. Disputes arising from the relocation of a
custodial parent “present some of the knottiest and most disturbing problems that our
courts are called upon to resolve.” Tropea v. Tropea, 665 N.E.2d 145, 148 (N.Y. 1996).
Relocation cases are “intractable problems” and the “San
Andreas fault” of family law. When one parent attempts to
move a child a significant distance from the other parent, the
child’s relationship with each parent changes in quality and
quantity. These “no-win” cases are occurring with increasing
frequency, create enormous tensions for parents and their
children, and burden the legal system and the judges who
6
have to decide them. A potential relocation can generate
conflict in cases where there had been none before, reopen
old wounds in others, or exacerbate an already highly-
conflicted situation. Unfortunately, such cases are
increasingly common.
Arnott, ¶ 12, 293 P.3d at 444 (quoting Linda D. Elrod, National and International
Momentum Builds for More Child Focus in Relocation Disputes, 44 Fam. L.Q. 341, 341-
42 (2010)).
[¶21] Father contends that the district court abused its discretion because of the impact
of Mother’s move on his visitation rights, because the custody arrangement was working
well in Cody before the move, and because Mother relocated to Arizona with only the
hope of getting a job. He also contends that the decision places the onus on him to
exercise reasonable visitation. He further argues that there was no evidence that Father’s
new family and expected baby would impact his ability to parent DBG and MRG.
Finally, he points out that the district court declined to increase the value of Mother’s
child support obligation because the change in her earnings would be three percent or
less, meaning that she has not received a significant economic benefit from the move so
far.6
[¶22] We perceive Father’ claims in this appeal to ask us to weigh the evidence
differently than the district court did, which we will not do. Tracy, ¶ 47, 388 P.3d at
1267. For whatever it is worth, Mother did have a job offer before she moved to Arizona,
and ran into a snag when she learned of the need for an IVP card, then recovered nicely
by getting the card and finding a job that paid even better and allowed her to provide
good care to the children. If Father is attempting to insinuate that Mother moved for the
purpose of interfering with his visitation, the record simply does not support that
assertion. Mother could not find suitable employment in Cody and was rapidly sinking
deeper in debt, and then learned that her skills, including her ability to speak Spanish and
English fluently, were in greater demand in Arizona than they were in Cody.
[¶23] When we view the record in the light most favorable to Mother and the district
court’s decision, we find that the court appropriately evaluated and weighed the factors
contained in § 20-2-201, and that the record supports its conclusions. The court found
that Mother had been the children’s primary caregiver and that changing that would
impact them negatively, and that she had made good efforts to facilitate a relationship
with Father. It found that the increase in the size of Father’s family from two to seven
would impact his time with the children, which only seems to be common sense. The
court was reluctant to separate Mother from her children or force her to return to a place
6
The court imputed income in the decree at $1,200 per month, even though Mother wasn’t making that
much. It initially believed she would eventually find work in Cody.
7
where she could not support herself or provide her share of support for the children. It
did the best it could to assure Father as much visitation as possible under the
circumstances, and it ordered Mother to bear half of the cost of visitation.
[¶24] It is true that this arrangement is not as favorable to Father as the one originally
decreed. We understand his disappointment – as the district court found, Father is a
capable and loving parent who now cannot see his children as much as he (and probably
they) would like. However, at the end of the day, the statutory analysis of the best
interests of the children led the court to maintain Mother as the custodial parent, although
it was a relatively close and probably agonizing call. We are in no position to second-
guess that decision in this difficult case. There was no abuse of discretion.
B. Contempt
[¶25] For reasons we will explain below, we would be justified in refusing to consider
Father’s argument concerning his efforts to have Mother held in contempt. However,
because of the prevalence of these efforts in domestic relations cases, we will take a
moment to touch on the requirements for contempt. We note that domestic relations
cases involve the same rules governing contempt as other cases.
[¶26] There are two general types of contempt, civil and criminal, as well as direct
criminal contempt. It is clear that direct criminal contempt, a contempt occurring in the
presence of the judge, is not an issue in this case, and we will not discuss it further. See
W.R.Cr.P. 42(b), allowing summary punishment of direct contempt.
[¶27] As to indirect civil and criminal contempt, we are unable to determine from the
record of which type of indirect contempt Father sought. As a result, we will discuss
both types. We have explained:
A contempt is considered civil when the punishment is
wholly remedial, serves only the purposes of the complainant,
and is not intended as a deterrent to offenses against the
public. A civil contempt is generally intended to compel a
party to comply with a lawful court order while a criminal
contempt is punitive in nature and is enforced so the authority
of the law and the court will be vindicated. Stated simply, the
primary purpose of criminal contempt is to punish while the
primary purpose of civil contempt is to coerce. Appellate
courts are obligated to decide whether a contempt is civil or
criminal based on the reasons for a particular penalty.
Stephens v. Lavitt, 2010 WY 129, ¶ 15, 239 P.3d 634, 638-39 (Wyo. 2010) (citations
omitted).
8
[¶28] Criminal contempt is a crime in every fundamental respect, and may be used to
punish, inter alia, “disobedience of any lawful judgment, order, or process of the court.”
Weidt v. State, 2013 WY 143, ¶ 20, 312 P.3d 1035, 1040 (Wyo. 2013) (citing In re BD,
2010 WY 18, ¶ 4, 226 P.3d 272, 273 (Wyo. 2010) (quoting Swain v. State, 2009 WY 142,
¶ 13, 220 P.3d 504, 508 (Wyo. 2009)); W.R.Cr.P 42(a)(2)(C). An indirect criminal
contempt proceeding must be brought in a separate criminal proceeding from the one in
which the alleged contempt occurred. Swain, ¶ 17, 220 P.3d at 509; see also In re BD, ¶
5, 226 P.3d at 274 (citing a series of cases holding the same over decades). The State has
the burden of proving the elements of indirect criminal contempt beyond a reasonable
doubt, as it must prove the elements of any crime. Weidt, ¶ 20, 312 P.3d at 1040.
[¶29] Civil contempt requires proof of the following elements by clear and convincing
evidence: “1) an effective court order that required certain conduct by the alleged
contemnor; 2) the contemnor had knowledge of the order; and 3) the alleged contemnor
disobeyed the order.” Shindell v. Shindell, 2014 WY 51, ¶ 10, 322 P.3d 1270, 1274
(Wyo. 2014). Once those elements are proven, the burden shifts to the person charged
with contempt to show he or she was unable to comply – i.e., that the failure to comply
was not willful. Id. The court may allow a civil contemnor to purge the contempt by
taking certain actions. Meckem v. Carter, 2014 WY 52, ¶ 19, 323 P.3d 637, 644 (Wyo.
2014); 17 Am. Jur. 2d Contempt §§ 204, 205 (2004). A court may also award damages
as a form of compensatory contempt to redress contumacious acts if it has the evidence to
establish the amount of damage. Walker v. Walker, 2013 WY 132, ¶ 39, 311 P.3d 170,
178 (Wyo. 2013).
[¶30] We will not disturb a lower court’s ruling on an application for civil contempt
unless there has been a serious procedural error, a violation of a principle of law, or a
clear and grave abuse of discretion. Roberts v. Locke, 2013 WY 73, ¶ 14, 304 P.3d 116,
120 (Wyo. 2013).
[¶31] We are unable to review Father’s claim for the following reasons. We can see
from the Clerk of Court’s index that Father filed a Motion for Order to Show Cause,
which we assume was the document initiating the contempt process. However, the
motion itself is not in the record. We have the transcript of the custody hearing, but there
is no meaningful discussion of contempt. As a result, we have no way of knowing
whether Father sought to have Mother punished in some fashion, which would be
criminal contempt. If he sought punishment, the district court had no jurisdiction because
there was no separate criminal case. Swain, ¶ 17, 220 P.3d at 509.
[¶32] If this was a request to have Mother held in civil contempt, Father does not
identify the provision of the decree he claims was violated. We can see from the custody
hearing transcript that he claims Mother violated the decree because he could not exercise
his ordered visitation due to the distance between them after she moved. However, the
9
decree did not (and probably could not)7 prohibit Mother from moving out of state. It
provided that the parties must give notice of a change of address so long as there was a
support obligation, and she did so. We have been provided with no authority indicating
that a custodial parent may not move without prior court approval if to do so would
impact the noncustodial parent’s visitation, and we have no intention of launching into
those uncharted waters without some sound legal basis to do so. Father likewise provides
us with no argument as to why Mother’s choice to move would be sufficiently willful
under these circumstances, when she was unable to support herself and her children in
Cody, but found gainful and appropriate employment in Arizona.
[¶33] Finally, we are unable to determine what coercive sanction Father was asking for
due to the lack of a record on that issue. We have held that appellants must provide this
Court with a record sufficient to allow adequate appellate review. Roberts, ¶ 27, 304
P.3d at 122. In the absence of such a record, we presume that there were no irregularities
in the district court’s judgment, and that it was reasonably based on competent and
sufficient evidence. Id. (citing Golden v. Guion, 2013 WY 45, ¶¶ 4-5, 299 P.3d 95, 96-97
(Wyo. 2013); Chancler v. Meredith, 2004 WY 27, ¶ 5, 86 P.3d 841, 842 (Wyo. 2004);
Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo. 1996)).
[¶34] We have also held that we will not consider issues which are not clearly defined or
supported by proper citation or cogent argument. Poitra v. State, 2016 WY 20, ¶ 22, 368
P.3d 284, 289 (Wyo. 2016) (citing Manzanares v. State, 2015 WY 63, ¶ 18, 349 P.3d
969, 972 (Wyo. 2015)). Father has not cited us to legal authority or provided cogent
argument which would allow us to evaluate the district court’s ruling in light of the facts
as they may or may not prove the elements of civil contempt, whether the standard of
proof was met, and why Mother did not prove that her contempt was not willful, if there
was in fact a violation of the decree.
[¶35] We have said all of this not to pick on Father or his counsel – efforts to have a
former spouse held in contempt are not uncommon – perhaps they are the rule rather than
the exception. We merely make the point that an allegation of contempt is serious, and
that the rules governing contempt are specialized and complex. As emotionally
7
In Watt v. Watt, 971 P.2d 608 (Wyo. 1999), the decree contained a provision providing for an automatic
change of custody if the custodial parent moved more than fifty miles from Upton, Wyoming. The
district court there refused to enforce the provision, and this Court adopted a rule that a change of
residence could not alone be considered a material change of circumstances to allow a reevaluation of
custody. Id. at 614-17. Arnott overruled Watt on this point, holding that relocation by the custodial
parent may be a material change of circumstances, and noting that “[u]ltimately, we agree 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.” 2012 WY 167, ¶ 38, 293 P.3d at 457. There is no reason that a
provision in a divorce decree should fare any better than a presumption. As we recently noted, district
courts can protect a child from the adverse consequences of a move through the use of a temporary
custody hearing and order. Tracy, ¶¶ 25-31, 38 P.3d at 1263-64.
10
gratifying as it can evidently be to lodge a complaint that an ex-spouse is in contempt,
such a claim should not be undertaken lightly. At the end of the day, we have no basis to
conclude that the district judge erred in refusing to hold Mother in contempt, or that he
even could have.
CONCLUSION
[¶36] We find no error in the district court’s ruling, and consequently affirm.
11