Aimee V. Kidd F/K/A Aimee V. Jacobson v. Matthew T. Jacobson ( 2020 )

IN THE SUPREME COURT, STATE OF WYOMING
2020 WY 64APRIL TERM, A.D. 2020
May 22, 2020
AIMEE V. KIDD f/k/a AIMEE V.
JACOBSON,
Appellant
(Plaintiff),
S-19-0216
v.
MATTHEW T. JACOBSON,
Appellee
(Defendant).
Appeal from the District Court of Laramie County
The Honorable Catherine R. Rogers, Judge
Representing Appellant:
Stephenson D. Emery, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.
Representing Appellee:
Linda J. Steiner and Abigail E. Fournier, Steiner Law, LLC, Cheyenne, Wyoming.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] In Jacobson v. Kidd, 2018 WY 108, ¶¶ 6, 32-33, 426 P.3d 813, 814-15, 823-24
(Wyo. 2018), we determined a material change of circumstances had occurred since entry
of an order placing primary custody of the parties’ children with Aimee V. Kidd (Mother).
We remanded for the district court to determine whether a change of custody and/or
visitation was in the best interests of the children. Id., ¶ 33, 426 P.3d at 824. The district
court awarded primary custody to Matthew T. Jacobson (Father) and granted Mother
visitation. Mother claims the district court abused its discretion by prohibiting her from
using alcohol during visitation.
[¶2] We affirm.
ISSUE
[¶3] Mother presents the following issue for our review:
Did the [d]istrict [c]ourt abuse its discretion in ordering
[Mother] to abstain from consuming any alcohol during
visitation with the [p]arties’ minor children?
FACTS
[¶4] We briefly recite the relevant facts and course of proceedings here. A more detailed
rendition of the facts of this case is set out in our prior decision, Jacobson v. Kidd, supra.1
[¶5] Mother and Father married in 2007 and had two daughters—MJ in 2007 and KJ in
2008. Jacobson, ¶ 4, 426 P.3d at 814. The parties divorced in 2009, and the district court
awarded primary custody of the children to Mother and visitation to Father. Id. The
original decree incorporated a supplemental order which prohibited the parties from
engaging in “any excessive drinking” or use of illegal substances. In 2011, Father filed a
petition to modify custody based, in part, upon Mother’s inappropriate use of alcohol. Id.,
¶ 5, 426 P.3d at 814. The parties stipulated to a modified decree in 2012, which maintained
1
Mother argues we should not consider Jacobson in arriving at a decision in this case. We disagree. We
routinely refer to decisions from earlier appeals when deciding later cases. See, e.g., Zupan v. Zupan, 2016
WY 78, ¶ 3, 377 P.3d 770, 772 (Wyo. 2016) (referring to Zupan v. Zupan, 2010 WY 59, 230 P.3d 329(Wyo. 2010)); Mad River Boat Trips, Inc. v. Jackson Hole Whitewater, Inc., 818 P.2d 1137 (Wyo. 1991)
(referring to Mad River Boat Trips, Inc. v. Jackson Hole Whitewater, Inc., 803 P.3d 366 (Wyo. 1990));
Matter of Adoption of BBC, 849 P.2d 769, 771 (Wyo. 1993) (referring to Matter of Adoption of BBC, 831
P.2d 197 (Wyo. 1992)). Moreover, as we explain in detail below, the visitation order under review in this
appeal was entered upon remand of Jacobson, so the visitation order was part of the modification action.
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primary custody with Mother but increased Father’s visitation and required Mother to
attend counseling. Id., ¶¶ 6, 22, 426 P.3d at 814-15, 822.
[¶6] On September 29, 2015, Father filed a petition to modify the custody order to award
him primary custody of the children. Id., ¶ 7, 426 P.3d at 815. (This was the petition that
led to the custody modification at issue in Jacobson, supra, and the visitation order at issue
here.) At the hearing on Father’s petition in May 2017, evidence was presented showing
several instances between 2012 and 2017 of Mother’s improper use of alcohol and
controlled substances, often resulting in law enforcement involvement. Id., ¶ 8, 426 P.3d
815-17.
• In 2012, Mother was arrested for walking on a highway while intoxicated;
• In 2014, a man told police that Mother arrived intoxicated at his residence and
tried to have sex with him;
• In February 2015, police were called to a bar fight in Casper and found Mother
intoxicated;
• In September 2015, one of Mother’s ex-boyfriends called police to report
Mother had been drinking, came to his house unannounced, and tried to get in
bed with him. She subsequently pretended to take a bottle of controlled
substances in a feigned suicide attempt;
• In January 2016, Mother and a friend “went out drinking” and later had sexual
relations at her house. Mother posted on Facebook that she could not remember
the night. She subsequently claimed she had been raped;
• In December 2016, police were called to a bar because Mother was involved in
an altercation with the alleged rapist.
Id., ¶¶ 8, 26, 426 P.3d at 815-17, 823.
[¶7] The district court denied Father’s petition for modification in June 2017, concluding
he had failed to establish a material change of circumstances that affected the children. Id.,
¶ 12, 426 P.3d 818-19. Nevertheless, the district court noted Mother’s use of alcohol and
controlled substances was troubling.
Since the entry of that June 5, 2012[,] Modified Decree,
the evidence produced at trial would lead the [c]ourt to
conclude that [Mother] has had numerous run-ins with the law,
that she has struggled with her use of prescription drugs, and
that she has struggled with appropriate and controlled
consumption of alcohol.
Id., ¶ 12, 426 P.3d at 818.
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[¶8] Father appealed, and we ruled the district court erred by concluding there had not
been a material change in circumstances that affected the children. Id., ¶ 32, 426 P.3d at
824. There were many factors relevant to the finding of a material change in circumstances,
including Mother’s unstable lifestyle, poor decision-making, and inappropriate use of
alcohol. Id., ¶¶ 23-32, 426 P.3d at 822-24. With regard to her alcohol use, we stated:
As the district court recognized, Mother also had . . .
problems with alcohol and prescription drugs. Her feigned
suicide attempt involved narcotics and she drank to excess on
many occasions, some resulting in police involvement. On the
day after she was allegedly raped . . . , Mother posted on
Facebook that she could not get out of bed or remember the
night before. . . . Mother’s use of alcohol and drugs obviously
is relevant to the children’s lives.
Id., ¶ 26, 426 P.3d at 823.
[¶9] We reversed the district court’s denial of Father’s petition for modification and
directed the district court to determine whether modification of the governing custody and
visitation order was in the children’s best interests. Id., ¶ 33, 426 P.3d at 824. On remand,
the district court awarded Father primary custody. However, it apparently did not
determine visitation or child support at that time.2
[¶10] Around the time the district court awarded him custody, Father filed a motion for
order to show cause alleging Mother was in contempt of court for violating various court
orders. On March 26, 2019, the district court held an evidentiary hearing to determine
visitation, child support, and Father’s contempt action. The GAL presented evidence
showing Mother had been involved in an incident at a bar in February 2019.
[¶11] The district court announced its decision orally at a hearing on April 25, 2019, and
subsequently entered a written order. In general, it granted Mother visitation with the
children on alternating weekends during the school year, certain holidays, and alternating
weeks during the summer. The court ordered Mother to refrain from using alcohol and to
subject herself to chemical testing during the visitation periods. The visitation order stated:
This [c]ourt, in its original decision[,] and the Wyoming
Supreme Court have found that appropriate use of controlled
substances and alcohol are problematic in [Mother’s] life and
the Wyoming Supreme Court specifically found that
2
Neither party designated the order granting Father primary custody as part of the record on appeal. We
are, however, able to glean the gist of the custody order from the order granting visitation and statements
made by the court, counsel and witnesses at the March 2019 evidentiary hearing and the April 2019 decision
hearing.
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[Mother’s] use of alcohol and drugs obviously is relevant to the
children’s lives. There was evidence that [Mother] was once
again, at a bar in which people were intoxicated, at which there
was fighting, and at which her live-in companion was
intoxicated and was arrested. [Mother] is prohibited from
using or being under the influence of alcohol or controlled
substances while the minor children are in her care and she will
submit to chemical testing twice daily . . . while the minor
children are in her care. . . .
The district court also ordered Mother to pay child support and found her in contempt of
court for several violations of its earlier orders.
[¶12] Mother appealed, claiming the district court erred by ordering her to refrain from
using alcohol during visitation. She does not challenge other aspects of the visitation order,
the contempt order, or the child support order.
STANDARD OF REVIEW
[¶13] We review the district court’s visitation order for an abuse of discretion.
Custody, visitation, child support, and alimony are all
committed to the sound discretion of the district court. Scherer
v. Scherer, 931 P.2d 251, 253–54 (Wyo.1997); Triggs v.
Triggs, 920 P.2d 653, 657 (Wyo.1996). . . . We do not overturn
the decision of the trial court unless we are persuaded of an
abuse of discretion or the presence of a violation of some legal
principle.
A court does not abuse its discretion unless it acts in a manner
which exceeds the bounds of reason under the circumstances.
Pinther v. Pinther, 888 P.2d 1250, 1252 (Wyo.1995). Our
review entails evaluation of the sufficiency of the evidence to
support the district court’s decision, and we afford the
prevailing party every favorable inference while omitting any
consideration of evidence presented by the unsuccessful party.
Triggs, 920 P.2d at 657; Cranston v. Cranston, 879 P.2d 345,
351 (Wyo.1994). Findings of fact not supported by the
evidence, contrary to the evidence, or against the great weight
of the evidence cannot be sustained. Jones v. Jones, 858 P.2d
289, 291 (Wyo.1993). Similarly, an abuse of discretion is
present “‘when a material factor deserving significant weight
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is ignored.’” Triggs, 920 P.2d at 657 (quoting Vanasse v.
Ramsay, 847 P.2d 993, 996 (Wyo.1993)).
Stevens v. Stevens, 2014 WY 23, ¶ 8, 318 P.3d 802, 805-06
(Wyo. 2014) (quoting Bingham v. Bingham, 2007 WY 145, ¶
10, 167 P.3d 14, 17–18 (Wyo. 2007)).
Meehan-Greer v. Greer, 2018 WY 39, ¶ 14, 415 P.3d 274, 278-79 (Wyo. 2018) (some
citations and quotation marks omitted).
DISCUSSION
[¶14] We employ a two-step analysis in determining a request for a change in custody or
visitation. Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 8, 297 P.3d 768, 772 (Wyo. 2013)
(citing In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876 (Wyo. 2006)). The first step requires
a showing of a material change in circumstances since the most recent custody and/or
visitation order. Id.; Meehan-Greer, ¶ 17, 415 P.3d 279-80. Once that is shown, the court
determines whether a change of custody and/or visitation is in the children’s best interests.
Jensen, ¶ 8, 297 P.3d at 772; Meehan-Greer, ¶ 25, 415 P.3d at 281.
[¶15] In Jacobson, ¶¶ 32-33, 426 P.3d at 824, we ruled there was a material change in
circumstances and “direct[ed] the district court to determine whether modification of the
governing custody and visitation order [was] in the [children’s] best interests.” The district
court changed custody of the children; therefore, it needed to determine what visitation
plan for Mother was in the children’s best interests. Wyo. Stat. Ann. § 20-2-202(a)(i)
(LexisNexis 2019) (“The court may order visitation it deems in the best interests of each
child and the court shall [o]rder visitation in enough detail to promote understanding and
compliance[.]”). See also, Johnson v. Clifford, 2018 WY 59, ¶¶ 25-27, 418 P.3d 819, 827-
28 (Wyo. 2018) (recognizing a change from joint custody to primary custody in one parent
justified an order granting visitation to the other parent); DJG v. MAP, 883 P.2d 946, 947-
48 (Wyo. 1994) (change in custody and visitation).
[¶16] Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2019) governs the best interests
analysis:
In determining the best interests of the child, the court shall
consider, but is not limited to, the following factors:
(i) The quality of the relationship each child has with each
parent;
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(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.
Id.[¶17] Mother does not challenge the amount or times of visitation. She contests only the
provision prohibiting her from consuming any alcohol during visitation with the children.
Mother claims the evidence presented at the March 2019 evidentiary hearing was
insufficient to justify that condition.
[¶18] We noted in Womack v. Swan, 2018 WY 27, ¶ 34, 413 P.3d 127, 139 (Wyo. 2018),
that a parent’s alcohol use implicates § 20-2-201(a)(iii) (the relative competency and
fitness of the parent) and (a)(ix) (the mental ability of the parent to care for the children).
Consequently, courts routinely limit parents’ use of alcohol while they are with their
children. See, e.g., Womack, ¶ 7, 413 P.3d at 132 (ordering the mother “not to consume
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any alcohol when the children [were] in her custody”); Levene v. Levene, 2014 WY 161, ¶
7, 340 P.3d 270, 272 (Wyo. 2014) (conditioning the mother’s unsupervised visitation with
the children upon her maintaining sobriety); Inman v. Williams, 2008 WY 81, ¶ 7, 187 P.3d
868, 873 (Wyo. 2008) (prohibiting the parents from using alcohol around the children).
[¶19] Mother asserts the only evidence the district court could properly consider regarding
her alcohol use was that presented at the March 2019 evidentiary hearing. She fails to
recognize the visitation order was entered on remand of the custody modification order
which was prompted by Father’s 2015 petition. The most recent custody and visitation
order prior to that petition was the 2012 order. Thus, all of the evidence of Mother’s
behavior after the 2012 order was fairly considered by the district court in making its
visitation determination, including that presented at the 2017 and 2019 hearings.
[¶20] The district court stated at the April 25, 2019, decision hearing:
Finally, as it concerns restrictions and controls on
[Mother] in connection with the visitations, specifically as it
concerns alcohol and controlled substances, the guardian ad
litem asked this [c]ourt to order that [Mother] be prohibited
from use of controlled substances and alcohol while the
[children] are in her care and that she be monitored for such.
And I think it’s incumbent on the [c]ourt to observe that the
evidence at the March 26[, 2019,] hearing regarding
[Mother’s] use of alcohol was what I will call scant. There was
limited testimony about one incident on February 16th, 2019, at
a bar in Mills, and there was no additional evidence presented
at the March 26, 2019[,] evidentiary hearing concerning
[Mother’s] use of controlled substances. However, both this
[c]ourt in . . . its original decision and the Wyoming Supreme
Court have found that use of controlled substances and alcohol
[is] problematic in [Mother’s] life and the Wyoming Supreme
Court specifically found that [M]other’s use of alcohol and
drugs obviously is relevant to the children’s lives.
This conclusion and the facts that led to that conclusion
as well as the additional evidence that [Mother] was once
again, at a bar in which people were intoxicated, at which there
was fighting, and at which her live-in companion was
intoxicated and was arrested does leave the [c]ourt to conclude
that the guardian ad litem’s recommendations in this regard are
well taken.
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[Mother] will be prohibited from using or being under
the influence of alcohol or controlled substances while the
minor children are in her care and she will submit to chemical
testing twice daily, . . . while the minor children are in her care.
...
In addition, [Mother] . . . shall not allow the children to
be around anyone who is using, in possession of, or under the
influence of alcohol or controlled substances while the children
are in her care and custody.
[¶21] The evidence presented at the 2017 and 2019 hearings supports the district court’s
determination. As we described above, the evidence at the 2017 evidentiary hearing
showed Mother has had significant problems with alcohol for years. The evidence at the
2019 hearing showed she engaged in behavior similar to that described in Jacobson just
one month prior to the hearing. The GAL questioned Mother about the February 2019
incident:
Q. . . . On the night of February 16, 2019, were you
at the Baja Beach Club also known as Stagger’s Bar?
A. Very, very, very briefly.
Q. At approximately 11:00, you were there with
George Michael Karaouni [her live-in companion], Brett
Erickson, and Benjamin Ledford?
A. No.
Q. Were any of those people there that day?
A. Mike was there with his, um, I guess they were
friends at the time, but they’re not anymore, yeah, they were
feeding him shots. They were getting pretty rowdy. I left and
Cameron came and picked me up and I went home.
Q. Were you asked to leave the bar?
A. No, they were, I didn’t (sic).
Q. Did you and Mr. Karaouni get into a fight?
A. No.
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Q. You did not get in any physical fight and had to
be separated?
A. No. No, Mike has never ever, ever been violent
towards me, ever.
Q. And Mr. Karaouni was arrested for public
intoxication and trespassing?
...
THE WITNESS: Yeah, I’m not entirely sure what
happened other than from what Mike told me and he doesn’t
really remember much. Was – his friend then was supposed to
drive him home and they had to go back for some reason –
Q. Okay.
A. -- Mike walked into the bar to use the bathroom
and was arrested for trespassing and I think public
intox[ication]. But he really doesn’t have a recollection of that.
...
Q. Are you aware that Mr. Ledford filed a citizen
complaint, criminal complaint against you for assault that day?
A. Yes.
[¶22] The February 2019 incident was evidence of Mother’s current behavior relating to
alcohol. Although there is no direct evidence Mother was intoxicated during the episode
at the Baja Beach Club, it is clear she was involved in an incident fueled by alcohol. Mother
admitted her live-in companion was intoxicated and a citizen complaint for assault had
been filed against her. The district court could reasonably infer Mother’s behavior during
that incident was, like many times before, affected by her use of alcohol.
CONCLUSION
[¶23] The district court properly considered evidence presented at the 2017 and 2019
hearings regarding Mother’s behavior while using alcohol. This evidence was certainly
relevant to the best interests of the children. The court did not abuse its discretion when it
ordered Mother to refrain from using any alcohol during visitation with the children.
[¶24] Affirmed.
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