Amy Elise Evans f/k/a Amy Elise Sharpe v. Spencer Steven Sharpe , 2023 WY 55 ( 2023 )

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 55APRIL TERM, A.D. 2023
June 6, 2023
AMY ELISE EVANS
f/k/a AMY ELISE SHARPE,
Appellant
(Plaintiff),
S-22-0244
v.
SPENCER STEVEN SHARPE,
Appellee
(Defendant).
Appeal from the District Court of Albany County
The Honorable Bobbi Dean Overfield, Judge
Representing Appellant:
Christopher J. King, APEX Legal, P.C., Worland, Wyoming.
Representing Appellee:
Linda J. Steiner and Abigail E. Fournier, Steiner, Fournier & Zook, LLC, Cheyenne,
Wyoming.
Guardian ad Litem:
Alaina M. Stedillie, Crowley Fleck PLLP, Casper, Wyoming.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
GRAY, Justice.
[¶1] Amy Elise Evans (Mother) appeals from the district court’s order finding her in
contempt and modifying the divorce decree. Mother asserts the district court erred when
it found her in contempt of court. She also argues the district court abused its discretion
when it found a material change in circumstances and modified the decree to change
provisions related to travel, limit her discretion to restrict visitation, and limit her discretion
in health care decision making. Finally, Mother contends the district court erred when it
made credibility findings concerning the guardian ad litem and in failing to address child
support in its order. We affirm in part and reverse in part.
ISSUES
[¶2] We rephrase the issues:
1. Did the district court abuse its discretion when it
determined clear and convincing evidence supported
finding Mother in contempt of court?
2. Did the district court abuse its discretion when it
modified the terms of the divorce decree?
3. Did the district court commit reversible error when it
entered findings about the credibility and neutrality of
the guardian ad litem?
4. Did the district court abuse its discretion when it did not
order a change in child support?
FACTS
[¶3] Mother and Spencer Steven Sharpe (Father) married in 2010. They had two
children, EMS, born in 2011, and JES, in 2013. They divorced in July 2018. The parties
stipulated to the terms set forth in their divorce decree. The decree provides for shared
joint legal and residential custody, with a 2-2-3 weekly alternating schedule, alternating
holidays and birthdays. The decree also specifies, “Changes to the visitation schedule may
be made at Mother’s reasonable discretion.” It grants Mother “final decision-making
authority” on “major decisions” and “day-to-day decisions.” The decree required the
parties’ communications to be “child-centric, . . . productive, business-like and respectful”
and provided that “Neither parent owes child support to the other.”
[¶4] The visitation schedule set forth in the divorce decree worked for the parties until
January 2020, when Father started sending Mother antagonistic and troubling text
1
messages. The texts are numerous and lengthy, but include the following message from
Father to Mother which also referenced Father’s parents:
What I’m trying to say is that deep deep down there is still
hatred for each of you. I f*cking hate you three hypocrites and
I hate myself more. For years I’ve despised you. You hurt my
daughters and you don’t even know it. You have no right to
call yourselves Christians, no right to preach, to lecture or to
judge anyone. I don’t want to live with this hatred anymore,
and I’m not going to do you the satisfaction of killing myself.
Not by drinking, smoking, or any other self-destructive
means. . . .
[¶5] Mother described the texts as “aggressive and mean to me” and Father’s “mom . . .
dad, [and] his brothers and sisters.” She also interpreted some of these messages as an
“indicat[ion Father] was suicidal.” Mother testified that these texts, a series of others
similar in nature, and her perception that Father could be suicidal, prompted her to limit
Father’s visitation in January 2020—a decision that she understood to be within her
discretion.
[¶6] She suspended visits with Father from that time (mid-January 2020) through the end
of March 2020, a period of approximately eight to ten weeks. Mother testified that she
refused to let the children travel to Ireland with Father on a work-related trip because she
would have had to accompany the children to Ireland and one of the children would have
had to fly back alone. She also explained that she denied a request by Father to take the
children to the Bahamas because they were attending school at the time. Mother took the
children to Hawaii in March 2020, prior to the state’s COVID-19 lockdown, but refused a
second request to allow the children to travel with Father to the Bahamas at a later date
because the U.S. Center for Disease Control had issued travel restrictions to the country.
Visitation resumed after Father saw a psychiatrist, took a drug test, and seemed to “level
out.”
[¶7] In February 2021, JES was diagnosed with a brain tumor and seizure disorder. The
parties diligently sought care for JES and consulted doctors at Children’s Hospital
Colorado, MD Anderson, St. Jude’s Children’s Hospital, and the Mayo Clinic. JES was
prescribed anti-seizure medication, which she takes twice daily to prevent seizures. She
continues to see physicians at Children’s Hospital Colorado to monitor her condition.
JES’s diagnosis and treatment have impacted EMS. Testimony is undisputed that EMS
often feels overshadowed by the attention necessarily given to JES because of her illness.
[¶8] It is uncontested that the parents have a hostile relationship. JES’s medical issues
have fueled the tension between the parties. They argue about doctor appointments and
treatment options. Mother testified that Father had volunteered to take JES to a neurologist
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appointment in Denver, but then failed to pick her up, resulting in a missed appointment.
Mother also testified Father changed the contact information in JES’s medical records from
Mother to Father resulting in Mother not receiving test results and missing calls from
physicians. Father testified changes to the contact information were made inadvertently.
Mother also testified that when she attended appointments without Father, he would text
her repeatedly (once every minute or two for over an hour), making degrading and
demoralizing comments.
[¶9] According to Mother, when JES was first diagnosed, and decisions were being made
about how they would proceed with treatment, Father suggested that her treatment should
include “weed, private ukulele lessons, and a private chef.” Father explained that he had
investigated marijuana as an alternative to the anti-seizure medication, which he thought
made JES “listless and sullen.” He disclosed that he had also considered “imaginal
therapy,” therapy which asks the patient to “become imaginative about the tumor going
away,” but Mother “shut [that] down.”
[¶10] Mother, concerned about the children’s safety and JES’s need for a consistent
schedule as a result of her diagnosis, exercised her discretion to limit visitation a second
time in late February or early March 2021.
[¶11] Father agreed to Mother’s modified visitation schedule until the end of that school
year. Between February and May 2021, Father had isolated, but numerous visits with the
children. He also attended JES’s medical appointments. In June 2021, Mother declined
Father’s requests to take the children to his grandfather’s funeral in Lander, Wyoming, but
the children attended the funeral with Father’s parents. A week later, Mother denied
Father’s request to take the children to his grandmother’s celebration of life in Haxtun,
Colorado. After school ended, in July 2021, Mother attempted to schedule regular
supervised visits. Father responded to Mother’s initial efforts with an offer to turn his
house into a café and a proposal for the two of them to go into business together. Mother
and Father hired a counselor.
[¶12] In December 2021, after working with the counselor, Mother and Father agreed to
return to the visitation schedule in the decree. On March 1, 2022, after coming home from
a weekend with Father, JES exhibited signs of a seizure. Mother took her to the hospital
in Laramie. Mother repeatedly texted and e-mailed Father that night and the next day to
determine whether he had given JES her medication. Father did not respond. JES was
transported to Children’s Hospital in Denver and Mother continued her efforts to contact
Father, telling him if JES had not missed doses, the doctors “want to up her dosage . . .
[p]lease let me know as soon as you are able.” Eventually Father responded, but never
indicated whether he had or had not given JES her medication. It is Mother’s position that
Father repeatedly failed to give JES her medication, at least in part because he disagrees
with medicating her. Father testified that he understands the importance of the medicine
and that he missed “less than five” doses.
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[¶13] In April 2021, after learning Father had failed to administer prescribed doses of anti-
seizure medication to JES, Father had allowed JES to go out alone and unsupervised at
night, 1 and in response to Father’s continuous erratic and abusive texts, Mother filed a
petition to modify custody, seeking sole legal and primary residential custody of the
children. In July 2021, Father filed a separate petition to modify custody. He sought
primary physical custody and decision-making authority. Father also filed a motion to hold
Mother in contempt for withholding visitation and for refusing his requests to travel with
the children. Father later filed a motion to hold Mother in contempt for failing to return
his medical records. 2 The court appointed a guardian ad litem (GAL) in August 2021.
[¶14] Following a two-day bench trial in April 2022, the district court found Mother in
contempt for unreasonably withholding visitation, unreasonably denying Father’s requests
to travel with the children, and failing to return Father’s medical records. Regarding the
petitions to modify custody, the district court found modification was justified by a material
change in circumstances and ordered changes to the decree, which are more fully discussed
below. Mother appeals.
DISCUSSION
I. Did the district court abuse its discretion when it determined clear and convincing
evidence supported finding Mother in contempt of court?
[¶15] The district court found Mother in contempt for unreasonably withholding
visitation, for unreasonably denying Father’s requests to travel with the children, and for
failing to return Father’s medical records. Mother challenges only the finding of contempt
for withholding visitation. She contends that the district court abused its discretion when
it determined she acted unreasonably. Mother asserts that her decision to limit Father’s
visitation was based on a number of facts, was reasonable, and in accord with the terms of
the divorce decree.
A. Standard of Review
[¶16] In the district court a “civil contempt order must be supported by clear and
convincing evidence. Clear and convincing evidence is ‘evidence that would persuade a
finder of fact that the truth of the contention is highly probable.’” JLK v. MAB, 2016 WY
1
Father testified that he allowed JES to go alone to Prexy’s Pasture, on the University of Wyoming campus,
at 7 p.m. in December, when it was dark outside. He felt that because she took a walkie-talkie she would
be able to communicate with him if there was an emergency.
2
In that motion, Father also alleged that Mother failed to notify him of the children’s activities. The district
court found “Father presented minimal if any evidence to support his claim” and that Mother “presented
substantial evidence to support her efforts to keep Father informed.” The district court did not find Mother
in contempt on this issue.
4
73, ¶ 20, 375 P.3d 1108, 1113 (Wyo. 2016) (internal citations omitted) (quoting Bullock v.
Bullock, 2014 WY 131, ¶ 17, 336 P.3d 136, 141 (Wyo. 2014)).
[¶17] Our standard of review in contempt proceedings involving child custody matters “is
lenient.” Heimer v. Heimer, 2021 WY 97, ¶¶ 16–17, 494 P.3d 472, 477–78 (Wyo. 2021).
“This Court does not interfere with an order holding a party in civil contempt of court 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.’” Heimer, ¶¶ 16–17, 494 P.3d at 477–78 (citations
omitted); see also Rigdon v. Rigdon, 2018 WY 78, ¶ 14, 421 P.3d 1069, 1073–74 (Wyo.
2018). “In reviewing the exercise of a district court’s broad discretion under its contempt
powers, we must determine whether the court reasonably could have concluded as it did.”
Rigdon, ¶ 14, 421 P.3d at 1073–74 (citations omitted); see also Zupan v. Zupan, 2010 WY
59, ¶¶ 36–37, 230 P.3d 329, 339 (Wyo. 2010).
B. Analysis
[¶18] Our analysis turns not on whether Mother exercised reasonable discretion, but on
whether the district court erred when it concluded Father established all the elements of
contempt.
[¶19] Addressing visitation, the district court found:
As it relates to Father’s claim that Mother unreasonably
withheld his parenting time, the prior decree provides that
“[c]hanges to the visitation schedule may be made at Mother’s
reasonable discretion.” Although the language of the decree
provides Mother with discretion, that discretion must be
reasonable. Based on the evidence presented at trial, the Court
finds Mother was unreasonable and abused her discretion
under the prior decree by denying Father any significant
visitation for such a lengthy period of time starting in February
2021. With the exception of a few hours at a time at a park,
Father was given minimal supervised visitation and precluded
from unsupervised visitation with his children for over ten
months. Mother gave minimal basis for withholding Father’s
parenting time and gave no provisions or remedies for Father
to correct the situation. Father did not help the situation but
rather added fuel to the fire with his obsessive, erratic, and
unnecessary emails and texts. Father’s communications made
Mother’s decision to withhold his parenting time almost
plausible. Not thinking or understanding that these messages
lent support to Mother’s opinion that he was mentally ill or
potentially abusing a substance, it is possible that Father
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believed harassing Mother would somehow get her to agree
with him. Father needs to learn those behaviors are not
appropriate or helpful to his cause.
The Court does not find the emails or texts rise to the
level warranting Mother to preclude the children’s regular time
with Father for almost eleven months. The same is true for the
evidence related to the missed medication and the Prexy’s
Pasture incident. The Court finds Mother in contempt for her
abuse of discretionary power to withhold Father’s parenting
time for a purpose and time frame the Court deems
unreasonable under the circumstances.
[¶20] Wyo. Stat. Ann. § 20-2-204 provides:
Enforcement and modification.
. . .
(b) A court having jurisdiction under W.S. 20-2-203 may,
upon appropriate motion of a party, require a parent to appear
before the court and show just cause why the parent should not
be held in contempt, upon a showing that the parent has
willfully violated an order concerning the care, custody and
visitation of the children. In order to enforce and require future
compliance with an order the court may find that the parent is
in contempt of court, award attorney’s fees, costs and any other
relief as the court may deem necessary under the circumstances
to the party aggrieved by the violation of an order.
Wyo. Stat. Ann. § 20-2-204(b) (LexisNexis 2021).
[¶21] To support a civil contempt order, a district court must find that the party asserting
contempt proved by clear and convincing evidence that: 1) an effective court order
“required certain conduct by the alleged contemnor; 2) the contemnor had knowledge of
the order; and 3) the alleged contemnor disobeyed the order.” Kleinpeter v. Kleinpeter,
2017 WY 76, ¶ 10, 397 P.3d 189, 193 (Wyo. 2017) (quoting JLK, ¶ 20, 375 P.3d at 1113).
Regarding “the third element, that the contemnor disobeyed the order, the party asserting
contempt must prove not only a failure to comply with the order, but also that the violation
was willful. In order to find a willful violation, the order violated must be ‘clear, specific
and unambiguous.’” Id. ¶ 11, 397 P.3d at 193 (internal citations omitted) (quoting JLK,
¶ 21, 375 P.3d at 1113). “Once these elements are proven, the burden shifts to the person
6
charged with contempt to show he or she was unable to comply.” Id. ¶ 10, 397 P.3d at 193
(quoting JLK, ¶ 20, 375 P.3d at 1113).
[¶22] Before there can be a willful violation of a court order, there must be a valid court
order which is clear, specific, and unambiguous. “An order on which a judgment of
contempt is based must be clear and unambiguous, and must spell out the details of
compliance in clear, specific and unambiguous terms so that the person will readily know
exactly what duties or obligations are imposed on him.” Crites v. Alston, 837 P.2d 1061,
1069–70 (Wyo. 1992) (quoting Cunningham v. Eighth Jud. Dist. Ct. of State of Nev., In &
For Clark Cnty., 729 P.2d 1328, 1333–34 (Nev. 1986)).
[¶23] Here the divorce decree stated:
Visitation: Mother and Father agree to a 2-2-3 weekly
alternating schedule. Changes to the visitation schedule may
be made at Mother’s reasonable discretion.
Mother was given “reasonable discretion” to make changes to visitation. The decree did
not define reasonable. It provided no guidance as to when in the exercise of her discretion
Mother could limit visitation and it provided no direction on reinstating visitation after
Mother used her discretion to limit it. The decree granted Mother “final decision-making
authority” on issues regarding the children:
In the event the parties disagree on issues regarding the minor
children, Mother shall have the final decision-making
authority.
We agree with the district court that the decree imposed a duty on Mother to exercise
“reasonable discretion.” The decree also provided Mother with expansive decision-making
authority. Mother’s authority to change visitation and make final decisions was nearly
unfettered. When read as a whole, we do not agree that the decree was sufficiently “clear,
specific, and unambiguous” such that Mother would have “readily known exactly what
duties or obligations were imposed” on her. See Crites, 837 P.2d at 1069–70 (holding that
divorce decree provision indicating that “Wyoming shall retain jurisdiction over the
custody” of the child “cannot be construed as a clear, specific and unambiguous court order
or decree. Consequently, a ‘violation’ of [that provision], whether ‘willful’ or otherwise,
cannot be enforced with the district court’s contempt power.”). See Greene v. Finn, 2007
WY 47, ¶ 14, 153 P.3d 945, 951 (Wyo. 2007) (“One of the controlling principles of law in
contempt jurisprudence is that ambiguities in court orders ‘redound to the benefit of the
person charged with contempt.’” (quoting Bard Ranch Co. v. Weber, 557 P.2d 722, 733
7
(Wyo. 1976))). Because the decree was ambiguous, the district court’s assessment of
contempt was not justified. 3
II. Did the district court abuse its discretion when it modified the terms of the divorce
decree?
[¶24] Mother argues the district court committed reversible error when it found a material
change of circumstances justified modification of the divorce decree terms governing her
decision-making authority regarding medical care, parenting time, and travel. She also
contends that the district court “committed reversible error” when it modified the medical
decision-making and decision-making authority regarding parenting time and travel terms
of the decree.
A. Standard of Review
[¶25] “We review a district court’s decision on a petition to modify child custody for an
abuse of discretion[.]” Johnson v. Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo.
2018) (citing Bishop v. Bishop, 2017 WY 130, ¶ 9, 404 P.3d 1170, 1173 (Wyo. 2017)).
“[W]e will not disturb the decision absent a procedural error or a clear abuse of discretion.”
Id. (citing Bishop, ¶ 9, 404 P.3d at 1173). “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.” Id. (quoting Bishop, ¶ 9, 404 P.3d at 1173).
[¶26] “A district court does not abuse its discretion if it could reasonably conclude as it
did.” Johnson, ¶ 8, 418 P.3d at 822 (citing Bishop, ¶ 9, 404 P.3d at 1173). To determine
whether the district court’s decision was reasonable, “[w]e consider the evidence in the
3
A decree that provides for reasonable visitation is not necessarily ambiguous and may in some
circumstances support a finding of contempt. See Kleinpeter, ¶ 15, 397 P.3d at 194. There the district court
held mother in contempt for denying father’s supervised visits. On appeal, mother argued the following
provision was too vague to be enforced through contempt: “[I]t is in the children’s best interests to be placed
in the legal and physical custody of [mother] with [father] having rights of reasonable visitation as agreed
by both parties upon reasonable notice with the initial six months of visitation to be supervised by a third
party[.]” Id. We found this provision was enforceable because “no provision in the [d]ecree allowed
[m]other to unilaterally discontinue [f]ather’s visitation.” Id. ¶ 20, 397 P.3d at 195.
We have likewise observed that “[a] decree in which custody and visitation are disputed must
provide more detail so that the parents each understand their obligations, and so the decree may be enforced
by contempt sanctions should that regrettably become necessary.” IC v. DW, 2015 WY 135, ¶ 21, 360 P.3d
999, 1005 (Wyo. 2015). IC was a paternity, custody, and visitation dispute. Father appealed a district
court’s order awarding custody to the mother as well as the court’s visitation order. Id. ¶ 1, 360 P.3d at
1000–01. We upheld the award of custody but remanded for a more specific visitation order. We
concluded, the order, which provided father at least monthly visitation and that visitation should be
“flexible,” was insufficient to promote the parties’ understanding and compliance. Kleinpeter, ¶ 13, 397
P.3d at 193 (quoting IC, ¶ 20–21, 360 P.3d at 1005).
8
light most favorable to the district court’s decision, ‘affording every favorable inference to
the prevailing party and omitting from our consideration the conflicting evidence.’”
Bishop, ¶ 9, 404 P.3d at 1173 (quoting Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087,
1089 (Wyo. 2009)). “This Court may not reweigh the evidence.” Ianelli v. Camino, 2019
WY 67, ¶ 20, 444 P.3d 61, 66 (Wyo. 2019) (citing Paden v. Paden, 2017 WY 118, ¶ 13,
403 P.3d 135, 140 (Wyo. 2017)).
Judicial discretion is not absolute, however:
Abuse occurs when a material factor deserving
significant weight is ignored, when an improper factor
is relied upon, or when all proper and no improper
factors are assessed, but the court makes a serious
mistake in weighing them.
Love v. Love, 851 P.2d 1283, 1291 (Wyo. 1993) (quoting
Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo. 1993)). “[I]n
every case, the record must support the district court’s
determination that the modification is in the children’s best
interests through ‘the proceeding transcripts, by opinion letter,
or as findings in the written order’ to allow appellate review.”
Booth v. Booth, 2019 WY 5, ¶ 22, 432 P.3d 902, 910 (Wyo.
2019) (quoting Jackson v. Jackson, 2004 WY 99, ¶ 15, 96 P.3d
21, 26 (Wyo. 2004)).
Ianelli, ¶ 21, 444 P.3d at 66–67.
B. There was a material change in circumstances affecting the welfare of the
children sufficient to modify the terms of the divorce decree.
[¶27] Wyo. Stat. Ann. § 20-2-204(c) sets forth the statutory requirements for modification
of custody and visitation orders:
(c) A court having jurisdiction 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
pursuant to W.S. 20-2-201(a). In any proceeding in which a
parent seeks to modify an order concerning child custody or
visitation, proof of repeated, unreasonable failure by the
custodial parent to allow visitation to the other parent in
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violation of an order may be considered as evidence of a
material change of circumstances.
Wyo. Stat. Ann. § 20-2-204(c). Courts engage in a “two-step inquiry to determine whether
modification of a custody and visitation order is appropriate.” Jacobson v. Kidd, 2018 WY
108, ¶ 16, 426 P.3d 813, 820 (Wyo. 2018). The first step, a finding that there has been a
material change in circumstances since the entry of the order in question, is a threshold
requirement. Bishop, ¶ 11, 404 P.3d at 1173 (quoting Hanson v. Belveal, 2012 WY 98,
¶ 18, 280 P.3d 1186, 1193 (Wyo. 2012)). That is because a “district court does not properly
acquire jurisdiction to reopen an existing custody order until there has been a showing of
‘a substantial or material change of circumstances which outweigh society’s interest in
applying the doctrine of res judicata’ to a custody order.” Id. (quoting Hanson, ¶ 18, 280
P.3d at 1193). The second step requires a determination of whether a modification would
be in the best interests of the child. 4 Id. (quoting Hanson, ¶ 18, 280 P.3d at 1193). Here
Mother takes issue with the first step, the finding of a change in material circumstances.
[¶28] The party seeking modification must prove a material change of circumstances has
occurred since entry of the governing order. Bishop, ¶ 12, 404 P.3d at 1173 (citing In re
TLJ, 2006 WY 28, ¶ 11, 129 P.3d 874, 877 (Wyo. 2006)). To determine whether there has
been a material change, “[t]he district court evaluates ‘the current circumstances of the
parties in relation to their circumstances at the time the prior custody order was entered.’”
Id. (citations omitted). “[T]o be considered material and justify reopening the decree, the
4
In determining the best interests of the child, courts consider the following factors:
(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 each
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.
Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2021). Mother confines her argument to the first step—the
finding of a material change in circumstances. Accordingly, we do not address the best interests factors
here.
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change in circumstances must affect the welfare of the children.” Ianelli, ¶ 23, 444 P.3d at
67; Bishop, ¶¶ 12–13, 404 P.3d at 1173–74.
“[W]e have never said the district court must wait until
the children exhibit negative consequences before
reconsidering custody and/or visitation.” Jacobson, ¶ 19, 426
P.3d at 821. Rather, the change must hold “some relevance in
the child[’]s life.” Id. (quoting Kappen [v. Kappen, 2015 WY
3], ¶ 15, 341 P.3d [377, 382 (Wyo. 2015)]) (internal quotation
marks omitted). We have recognized that “[a] circumstance
may have relevance in a child’s life before there are outward
signs of harm.” Id. Accordingly, the district court “may take
into account the obvious or natural effects of a situation in
finding a material change in circumstance.” Id.Ianelli, ¶ 24, 444 P.3d at 67. “A district court’s finding concerning a material change in
circumstances is principally a factual determination to which we accord great deference.”
Id. ¶ 23, 444 P.3d at 67 (quoting Meehan-Greer v. Greer, 2018 WY 39, ¶ 17, 415 P.3d 274,
279–80 (Wyo. 2018)).
[¶29] The district court concluded that “there has been a material change[] in
circumstances sufficient to modify the previous decree’s custody and visitation
provisions.” It identified amplified tensions between the parties caused by JES’s brain
tumor diagnosis and Mother’s exercise of discretionary power in withholding visitation for
several months as material changes. The district court found that Mother’s decision to
deny visitation caused confusion and harmed the children. Despite her allegations that
“there has been a substantial and material change in circumstances” warranting
modification of custody in her Petition to Modify Custody and Visitation, Mother now
argues that the district court’s finding of material change in circumstances was erroneous.
[¶30] It is undisputed that since the entry of the original decree, adverse tensions between
Mother and Father have intensified. JES was diagnosed with a brain tumor necessitating
doctor appointments, hospital visits, ongoing therapies, medication, and changes at school.
These events have impacted Mother and Father’s relationship and the well-being of the
children. The district court’s conclusion that there has been a material change in
circumstances affecting the children’s welfare on this basis is reasonable and is well-
supported by the record.
[¶31] The district court also found that Mother’s withholding of visitation for a period of
several months was a material change in circumstance. “[P]roof of repeated, unreasonable
failure by the custodial parent to allow visitation to the other parent in violation of an order
may be considered as evidence of a material change of circumstances.” Bishop, ¶ 14, 404
P.3d at 1174 (quoting Wyo. Stat. Ann. § 20-2-204(c)). Although the decree was ambiguous
11
as to the bounds of Mother’s discretion to limit and reinstate visitation, see supra ¶¶ 22–
23, she clearly curtailed visitation between Father and the children over a significant time
period. This constitutes a material change in circumstances. The district court did not
abuse its discretion when it found a material change in circumstances sufficient to modify
the decree.
C. The district court did not abuse its discretion when it modified the medical
decision-making term of the decree.
[¶32] The parties’ original divorce decree contains no provision regarding medical care
exclusively, but provides:
Major Decisions. The parties shall discuss major decisions
regarding the education, medical and dental care, mental health
care, work-related child care, general welfare and other major
parental decisions for their child and shall, to the extent
possible, make decisions together. In the event they cannot
reach consensus, Mother shall have the final decision-making
authority.
[¶33] The district court modified this provision to provide:
[P]rior to making a final decision involving whether one of the
minor children should undergo a major surgery, if the parties
cannot agree, Mother must obtain recommendations from at
least three licensed medical professionals knowledgeable
about the child’s condition.
a. Neither party shall interfere with the other
parent’s ability to communicate with medical
professionals involved with the minor children’s
medical needs.
b. Both parents shall continue to notify the other
parent of any medical appointments or information
related to the health of the minor children.
c. Father shall not change any access to or
otherwise modify the children’s health documentation
without Mother’s specific permission.
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d. Subject to consultation with Father, Mother shall
retain the final decision-making authority for the
children’s healthcare.
e. The parents shall attempt to have joint
communications with important medical providers to
avoid miscommunications.
[¶34] Mother argues the medical care provision should not have been modified because
there was no evidence that the children were harmed by a lack of medical care. As set forth
supra, our standard of review of a trial court’s decision regarding custody, visitation, and
relocation orders is one of abuse of discretion. Johnson, ¶ 8, 418 P.3d at 822. The record
reveals that the parties have frequently had trouble reaching agreements on issues of
appropriate medical care for JES. See supra ¶¶ 8–9. The district court’s modification is
intended to assist the parties in communicating about health care choices for the children
and to reach common ground in reaching decisions. The modification requires Mother to
obtain recommendations from three medical professionals in the event she and Father
cannot agree on a major surgery. Otherwise, Mother retains final decision-making
authority for the children’s healthcare with specific communication and consultation
requirements. The modification is a reasonable method of ensuring the parties
communicate on healthcare decisions and reach common ground or consensus as to major
surgery. We cannot conclude that the court abused its discretion in determining that a
clarification was necessary. The district court’s modification is reasonable.
D. The district court did not abuse its discretion when it modified the parenting
time and travel terms of the decree.
[¶35] The parties’ original divorce decree addressed custody and visitation, providing:
B. Parenting Time. It is the intention of the
parties to provide frequent, liberal, and recurring
parenting time to both parents as the children
need regular contact with both parents and such
parenting time is in their best interest. The
parties will not interfere with the other’s
visitation, and both parents will encourage a
quality relationship with both parents.
9. Visitation: Mother and Father agree to a 2-2-3
weekly alternating schedule. Changes to the visitation
schedule may be made at Mother’s reasonable
discretion.
13
The district court modified the visitation terms of the parties’ divorce decree as follows:
1. Shared Parenting Time. Each parent[’s] parenting time
shall be as follows:
a. School Year Schedule. The parties shall
continue with a 2-2-3 weekly alternating schedule.
b. Summer. The parties shall equally share the
summer commencing the first Friday after the release of
school and continuing until Friday before school
reconvenes by exercising a one week on, one week off
schedule with an exchange each and every Friday at
5:00 p.m. Father shall receive the first week of summer
visitation in even numbered years and Mother shall
receive the first week in odd numbered years. The
parties may change this schedule for purposes of family
vacation time but shall only do so upon agreement of
the parties and with equal time being granted to the
other parent.
c. Holiday Visitation. Holidays shall remain the
same as specified in the Decree of Divorce.
. . .
3. Discretion Over Father’s Parenting Time. Father’s
parenting time set forth above is contingent on him managing
his mental health by following all recommendations of his
treatment team (medical providers, counselors, and
psychiatrists) and taking his prescribed medication. In the past,
Mother has been able to unilaterally restrict Father’s time with
the children when she has felt he was not healthy to exercise
his time with them. This paragraph and below subparagraphs
now govern that discretion as follows:
a. In the event Mother feels Father is not managing
his mental health appropriately and is unsafe to exercise
his parenting time with the minor children, Mother may
withhold the children, but shall notify Father in writing
as to why his parenting time is being suspended and
what she proposes would remedy the situation.
Mother’s written basis for suspending Father’s
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parenting time shall be given to Father no later than
forty-eight (48) hours after any parenting time is denied
under this provision. As soon as the issues stated by
Mother can be addressed, and confirmation provided to
Mother that Father has taken the appropriate steps to
address Mother’s stated concerns, Father’s regularly
scheduled parenting time shall resume.
b. If Father’s parenting time is suspended for any
period of time, Father may continue to see the minor
children in a supervised setting until such time as the
situation is resolved. Father shall be solely responsible
to arrange for supervised visitation. This supervision
may be provided by members of Father’s family as long
as they are willing to provide 24/7 in-sight supervision.
c. This provision is not in place to give Mother
unilateral decision-making power as to when Father can
spend time with the children. It continues to be a part
of this order only to allow Mother to take action should
there be any immediate safety concerns related to the
minor children.
Mother argues the district court abused its discretion because this modification was not
supported by a corresponding change in circumstances. Mother points out that the district
court did not change custody or visitation from the original decree but altered how she
could exercise her decision-making authority with respect to visitation/custody.
[¶36] Regarding travel, the original decree provided:
Father shall be permitted to travel with the children
domestically and internationally with the children upon
agreement of the parties. Travel plans shall be subject to
Mother’s reasonable discretion. All travel plans must be
shared with Mother well in advance of any trip. Agreement
will not be unreasonably withheld by Mother. Mother shall
also be permitted to travel with the children and will provide
notice of travel plans to Father. Both parents will cooperate
with one another to exchange all necessary passports and travel
documents that belong to the children.
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[¶37] The district court modified these terms to require:
2. Travel. Father shall be permitted to travel with the
children domestically so long as he provides at least thirty (30)
days written advance notice of the travel to Mother and
provides the following: (A) an itinerary of travel dates; (B)
destination; (C) places where the children or traveling parent
can be reached. Mother shall also be permitted to travel with
the minor children and will provide the same thirty (30) day
advanced written notice of an itinerary of travel dates,
destination, places where the children or Mother can be
reached to Father. The children shall be permitted to travel
internationally with either parent upon agreement of the
parties. All travel plans must be agreed to by both parents in
writing at least thirty (30) days in advance. Agreement shall
not unreasonably be withheld by either parent. It is expected
that any travel will be scheduled during the respective
parent[’s] visitation time unless otherwise agreed upon in
writing. Both parents will cooperate with one another to obtain
and exchange all necessary passport and travel documents that
may be necessary for travel. Short weekend or day trips that
do not . . . affect either parent[’s] respective parenting time
shall not require thirty (30) days written notice or agreement.
For example, travel to Colorado.
Mother argues the district court did not find a material change in circumstances related to
travel and it abused its discretion in modifying these provisions.
[¶38] “Once the issue of custody or visitation is reopened by a finding of material change
in circumstances, the court is required to make an independent determination about what,
if any, modification is in the children’s best interest.” Booth v. Booth, 2019 WY 5, ¶ 21,
432 P.3d 902, 909 (Wyo. 2019) (citing Forbes v. Forbes, 672 P.2d 428, 429 (Wyo. 1983)
(“It is well settled that the district court is not bound to accept a stipulation of the parties
and that the court’s major consideration in determining custody of minor children is the
welfare of those children.”); Mann v. Green, 2012 WL 2948198, *2 (Del. 2012) (“[T]he
judge has broad statutory authority to modify visitation orders in the ‘best interests of the
child,’ even if the parent has not specifically requested that relief in the Petition to Modify
Visitation.”)).
[¶39] The district court properly considered modification of the decree’s provisions
governing Mother’s discretion over Father’s parenting time and travel. The original decree
provided Mother with unfettered discretion to alter Father’s visitation and to approve or
disapprove Father’s travel plans with the children. She exercised her discretion and limited
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visitation with no road back to the visitation provided in the decree. Father had only one
recourse—to petition the court. As we concluded supra ¶ 23, the decree’s original
language was ambiguous and gave Mother and Father no guidance in terms of Mother’s
discretion over visitation and travel. The district court did not abuse its discretion in
modifying the divorce decree to clarify the travel and visitation provisions.
III. Did the district court commit reversible error when it entered findings about the
credibility and neutrality of the guardian ad litem?
[¶40] In its decision letter, after concluding there had been a change in circumstances, the
district court evaluated the best interests of the children. In its analysis, the district court
commented:
The Court also considered the investigation and
recommendations of the guardian ad litem, who supported the
continuation of the parties’ previous custody schedule with
some modifications to address the circumstances that
warranted the foregoing action. The guardian ad litem, like
the counselor, appeared credible and neutral in her
investigation and recommendations to the Court. She
clearly did not gain the favor of either party. Her suggestions
were relevant to promote a continued co-parenting relationship
that would be in the best interests of the children.
(Emphasis added.) Mother contends that the district court committed reversible error in
making a finding addressing the credibility and neutrality of the GAL. Mother also argues
the GAL improperly elicited testimony when examining witnesses vouching for the GAL’s
credibility and bolstering the GAL’s recommendation. She argues that those questions
placed the GAL’s credibility at issue and should not have been allowed. Mother also
asserts that this Court should provide guidance for guardians ad litem in cases such as this
one.
[¶41] Father counters that it was Mother who put the GAL’s investigation and neutrality
at issue, and, in any event, the Court should not consider Mother’s argument because she
did not object to the GAL’s questioning at trial and any objections were waived. 5
[¶42] “Normally, we will not consider an issue raised for the first time on appeal, but we
have recognized ‘two exceptions to this rule: when the issue raises jurisdictional questions
or when the issue is of such a fundamental nature that it must be considered.’” Int. of VS,
5
Mother’s attorney objected to one question the GAL asked of the paternal grandfather on the grounds that
he was not designated as an expert witness. That objection was overruled. Mother’s arguments here do
not concern that objection or the district court’s ruling on it.
17
2018 WY 119, ¶ 25, 429 P.3d 14, 21–22 (Wyo. 2018) (internal citation omitted) (quoting
In Int. of ECH, 2018 WY 83, ¶ 21, 423 P.3d 295, 302 (Wyo. 2018)). This issue implicates
neither of these exceptions. The Wyoming Rules of Appellate Procedure provide, “[p]lain
errors or defects affecting substantial rights may be noticed although they were not brought
to the attention of the trial court.” W.R.A.P. 9.05; see also Guy-Thomas v. Thomas, 2015
WY 35, ¶¶ 9–10, 344 P.3d 782, 785–86 (Wyo. 2015) (“[f]ailure to object constitutes waiver
of whatever alleged error occurred, unless the error rises to the level of plain error”); Case
v. Outback Pipe Haulers, 2007 WY 181, ¶ 14, 171 P.3d 514, 517 (Wyo. 2007); but see
Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 976 (Wyo. 1974) (any objection
appellant had to evidence was waived by the failure to assert an objection at that time).
[¶43] Mother does not argue that this error affected a substantial right. She cites only one
case in her argument regarding the GAL: Pace v. Pace, 2001 WY 43, 22 P.3d 861 (Wyo.
2001), overruled on other grounds by Bruegman v. Bruegman, 2018 WY 49, 417 P.3d 157(Wyo. 2018). In Pace, the district court invited the GAL to testify regarding the results of
her investigation and her recommendation. Pace, ¶ 5, 22 P.3d at 864. We reversed, holding
that the GAL “impermissibly acted as both trial counsel and a witness.” Id. ¶ 24, 22 P.3d
at 869. The present case is distinguishable. Here, the GAL did not testify, but cross-
examined Mother about her concerns with the GAL’s investigation. Mother has not
established that the district court plainly erred by allowing that testimony; nor has she
established that it abused its discretion when it commented on the GAL’s neutrality and
credibility when it considered the children’s best interests. The district court’s analysis of
best interests, encompassing over three pages in its the decision letter, went far beyond its
consideration of the GAL’s recommendation.
[¶44] Mother also invites the Court to provide guidance to guardians ad litem, yet she
offers no cogent argument and cites to no authority that would assist the Court in this
undertaking. We decline her invitation to expand our guidance to GALs. See Matter of
TJH, 2021 WY 56, ¶ 13, 485 P.3d 408, 413 (Wyo. 2021) (where mother presented “no
cogent argument or citation to pertinent legal authority” we could decline to consider the
matter); Willey v. Willey, 2016 WY 116, ¶ 30, 385 P.3d 290, 299–300 (Wyo. 2016) (“We
need not consider issues which are not supported by proper citation of authority and cogent
argument or which are not clearly defined.” (quoting Hamburg v. Heilbrun, 889 P.2d 967,
968 (Wyo. 1995))).
IV. Did the district court abuse its discretion when it did not order a change in child
support?
[¶45] Mother argues that the district court failed to address her request for child support
modification. Father did not respond to this argument.
[¶46] The district court’s decision letter provides, “All other provisions within the
Stipulated Judgment and Decree of Divorce Nunc Pro Tunc entered on October 1, 2018
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not modified herein, shall remain in full force and effect.” The district court’s order
modifying custody and visitation provided “[a]ll other provisions of the Decree not
otherwise modified or addressed herein shall remain in full force and effect.”
[¶47] District courts have broad discretion in determining child support and will not abuse
their discretion unless acting “in a manner which exceeds the bounds of reason under the
circumstances.” Marquis v. Marquis, 2020 WY 141, ¶ 20, 476 P.3d 212, 218 (Wyo. 2020)
(citations omitted) (Failure to hold evidentiary hearing regarding income was not an abuse
of discretion.). Child support in the original divorce decree was stipulated to by Mother
and Father. Neither custody nor visitation was changed after a trial on the parties’ separate
petitions to modify. The district court addressed the request to modify child support by
finding that “other provisions [of the divorce decree] not modified herein, shall remain in
full force and effect.” Unsurprisingly, the district court left child support unchanged when
it did not modify custody. The district court did not abuse its discretion when it did not
separately address change in support in its decision letter and order.
CONCLUSION
[¶48] Because the divorce decree was ambiguous, Mother could not readily know the
duties imposed on her in exercising her discretion to limit visitation. The district court’s
finding of contempt is reversed. The district court did not abuse its discretion when it
modified the terms of the divorce decree, and it did not commit reversible error when it
entered findings about the credibility and neutrality of the guardian ad litem. Finally, the
district court did not abuse its discretion when it did not modify child support. We affirm
in part and reverse in part.
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