Mandi Lynn Kleinpeter, N/K/A Mandi Lynn Deleon v. Dedrick Ray Kleinpeter

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 76
APRIL TERM, A.D. 2017
June 26, 2017
MANDI LYNN KLEINPETER, n/k/a
MANDI LYNN DeLEON,
Appellant
(Plaintiff),
S-16-0269
v.
DEDRICK RAY KLEINPETER,
Appellee
(Defendant).
Appeal from the District Court of Natrona County
The Honorable Catherine C. Wilking, Judge
Representing Appellant:
Wendy S. Owens, Casper, WY.
Representing Appellee:
Dedrick Ray Kleinpeter, Pro Se, Casper, WY.
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.
HILL, Justice.
[¶1] Mandi Kleinpeter, n/k/a Mandi DeLeon (Mother), and Dedrick Kleinpeter (Father)
divorced after having two children together. About four months after entry of the Decree
of Divorce, Father filed a motion for an order to show cause why Mother should not be
held in contempt for failing to allow Father in-person and telephonic visits with the
couple’s children. Following an evidentiary hearing, the district court found Mother in
contempt of the Decree’s provisions allowing Father reasonable visitation with the
children and requiring that both parents make reasonable efforts to insure the children
free access to and unhampered contact with both parents. We affirm.
ISSUES
[¶2] Mother states the issues on appeal as follows:
1. Did the District Court err in finding Appellant in civil
contempt of court with regard to supervised visitation?
2. Did the District Court err in finding Appellant in civil
contempt of court with regard to telephonic contact?
FACTS
[¶3] Mother and Father were married on May 3, 2009 and had two children together:
RMK, born in 2010, and JCK born in 2011. On March 16, 2015, Mother filed a
complaint for divorce, and on February 9, 2016, the district court entered a Decree of
Divorce (hereinafter Divorce Decree or Decree). The Decree stated that the parties
generally agreed and stipulated that, among other facts:
5. * * * [Mother] is a fit and proper person to have
the legal and physical care, custody of the minor children of
the parties; and it 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 such as the
Casper Family Connections paid for by [Father].
[¶4] With regard to custody of the children, visitation, and the obligation to cooperate,
the Decree ordered:
3. That [Mother] is awarded the legal and physical
custody of the parties’ children * * * ; and that [Father] will
be entitled to reasonable visitation upon reasonable notice
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with the first six months of visitation to be supervised by a
third party such as the Casper Family Connections paid for by
[Father]. Following the successful completion of the
supervised visitation [Father] can have visitation with
reasonable notice for alternate weekends and alternate
holidays. In order for visitation to be utilized [Father] must
not utilize in any fashion alcohol or illegal/synthetic drugs or
in any way improperly utilize drugs whether the drugs are
prescribed to [Father] or not. [Father] will be responsible for
any transportation costs in exercising his visitation.
****
10. Obligation to Cooperate. Neither of the parents
shall complain about or malign the other nor the others’
family. Neither shall either directly or indirectly cause the
child[ren] to lose respect for or alienate the affection of said
child[ren] toward the other parent. The parents shall cast
each other in the most favorable light before the child[ren]
and shall recognize the great importance of the other’s
parent/child relationship. Either parent has the right to
petition to enforce or revise this decree with regard to the
care, custody, visitation and maintenance of the child[ren] as
the circumstances of the parents and the benefit of the
child[ren] requires in accordance with W.S. 20-2-201 through
20-2-204 and 30-2-311(d). Any breach of this instruction
shall constitute a material violation of this order.
Additionally, both parents shall:
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(b) Make every reasonable effort to insure free access
of the child[ren] to and unhampered contact with both
parents.
[¶5] On June 13, 2016, Father filed a motion for order to show cause in which he
alleged that Mother had violated the Decree by denying reasonable visitation and by
denying him access to the children by telephone. The district court entered an order to
show cause, and Mother responded with her traverse, which stated, in part:
5. While [Father] wishes that visitation be supervised by
SueAnn Tavener, LPC, it is in the children’s best interest that
visitation be supervised through Casper Family Connections
as recommended in the Decree of Divorce. It is further in the
children’s best interest that [Father] not graduate to standard
visitation until he has completed six months of consistent,
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regular, supervised visitation through Casper Family
Connections.
6. No specific visitation schedule was ordered,
particularly regarding the six months of supervised visitation.
There is no effective visitation schedule to be violated or
enforced. [Father] cannot claim a violation of a non-specific
order.
****
9. [Mother] has not willfully violated this Court’s Orders,
and therefore the Motion for Order to Show Cause should be
denied.
[¶6] Following an evidentiary hearing, the district court entered an order holding
Mother in contempt. The court concluded Father had proved by clear and convincing
evidence that the Decree was an effective order directing visitation and requiring the
parties to make every reasonable effort to insure free access of the children to and
unhampered contact with both parents. The court further concluded Father had proved by
clear and convincing evidence that Mother was aware of these Decree provisions, that she
failed to comply with the provisions, and that her failure to comply was willful. The
court’s underlying findings were:
a. [Mother] permitted approximately six in-person
visitations between [Father] and the children between March
2016 and early July 2016. Visitations took place at the
Natrona County Public Library, [Father’s] sponsor’s home,
Highland Park Community Church, a park at which a
Juneteenth celebration was taking place, and the Eastridge
Mall. [Mother] supervised some of the visitations; at others,
she dropped the children off with [Father] without a clear
understanding of who would be supervising the visitations.
b. At some point, [Mother] informed [Father] that she
would no longer allow visitations except as supervised by
Casper Family Connections.
c. [Father] has not been allowed to see the children since
approximately July 3, 2016.
****
e. In February or March, 2016, shortly after [Father]
moved from the Therapeutic Community program to the
Adult Community Corrections program at Caper Re-Entry
Center, the parties reached an agreement whereby [Father]
would have telephonic visitation with the children on
Tuesdays, Thursdays, and Saturdays. The agreement was not
reduced to a court order.
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f. [Father] exercised some telephonic visitation with the
children.
g. At some point, [Mother] stopped taking [Father’s]
phone calls and stopped returning his calls. [Father] has not
been allowed to exercise telephonic visitation with the
children since that point.
[¶7] Based on these findings, the district court held Mother in contempt of court. It
ordered:
[Mother] may purge her contempt by allowing
alternating weekend and alternating holiday visitation in
accordance with pages 2-3, paragraph 3, of the Decree of
Divorce, beginning the weekend following August 9, 2016.
This date is chosen as it will be six months from the entry of
the Decree of Divorce.
[¶8] Mother timely filed a notice of appeal, which included a statement that the
contempt hearing was not reported. Mother thereafter filed her proposed statement of the
evidence and proceedings pursuant to W.R.AP. 3.03. Father filed no objection or
proposed amendments to Mother’s proposed statement, and on November 10, 2016, the
district court entered a Statement of Proceedings Pursuant to W.R.A.P. 3.03. The district
court’s statement noted that Mother’s proposed statement accurately reflected a portion
of the parties’ testimony but omitted portions on which the court relied in its ruling. The
court detailed that testimony in its statement of the proceedings, and the record reflects
no objection to the court’s recitation.
STANDARD OF REVIEW
[¶9] We review civil contempt orders in domestic relations cases for the following:
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.” Roberts v. Locke, 2013
WY 73, ¶ 14, 304 P.3d 116, 120 (Wyo. 2013). See also
Munoz v. Munoz, 2002 WY 4, ¶ 6, 39 P.3d 390, 392 (Wyo.
2002); Olsen v. Olsen, 2013 WY 115, ¶ 33, 310 P.3d 888, 896
(Wyo. 2013). 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. Roberts, ¶ 14, 304 p.3d at 120, citing Stephens v.
Lavitt, 2010 WY 129, ¶ 18, 239 P.3d 634, 639 (Wyo. 2010).
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Waterbury v. Waterbury, 2017 WY 11, ¶ 7, 388 P.3d 532, 534-35 (Wyo. 2017) (quoting
Shindell v. Shindell, 2014 WY 51, ¶ 7, 322 P.3d 1270, 1273 (Wyo. 2014)).
DISCUSSION
[¶10] We have outlined the findings a district court must make to support a civil
contempt order.
A civil contempt order must be supported by clear and
convincing evidence. McAdam, ¶ 14, 335 P.3d at 470;
Shindell, ¶ 10, 322 P.3d at 1274. Clear and convincing
evidence is “evidence that would persuade a finder of fact
that the truth of the contention is highly probable.” Id. The
elements of civil contempt are: “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.” Id. Once these elements are
proven, the burden shifts to the person charged with contempt
to show he or she was unable to comply. Id.
JLK v. MAB, 2016 WY 73, ¶ 20, 375 P.3d 1108, 1113 (Wyo. 2016) (quoting Bullock v.
Bullock, 2014 WY 131, ¶ 17, 336 P.3d 136, 141 (Wyo. 2014)).
[¶11] With regard to 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. JLK, ¶ 21, 375 P.3d at 1113 (quoting Meckem v. Carter, 2014
WY 52, ¶ 20, 323 P.3d 637, 644 (Wyo. 2014)). “In order to find a willful violation, the
order violated must be ‘clear, specific and unambiguous.’” Id. (quoting Greene v. Finn,
2007 WY 47, ¶ 14, 153 P.3d 945, 951 (Wyo. 2007)).
[¶12] The district court found clear and convincing evidence to support each contempt
element, but Mother has appealed only the court’s ruling that “there was an effective
court order for visitation.” She contends that the Divorce Decree lacked the specificity
required to support a contempt finding and, in so arguing, points to this Court’s decision
in IC v. DW, 2015 WY 135, 360 P.3d 999 (Wyo. 2015). Because IC was not a contempt
appeal, we find Mother’s reliance on its holdings to be misplaced under these
circumstances.
[¶13] IC was a paternity, custody, and visitation dispute, in which the father appealed a
district court’s order awarding custody to the mother as well as the court’s visitation
order. Id. at ¶ 1, 360 P.3d at 1000-01. We upheld the award of custody but remanded for
a more specific visitation order, having concluded that the order, which directed that
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father shall have at least monthly visitation and further directed that visitation should be
“flexible,” was insufficient to promote the parties’ understanding and compliance. Id. at
¶ 21, 360 P.3d at 1005. In so holding, we 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.” Id. We directed on remand that the district court enter a
visitation order incorporating the following:
• It should specify which weekends and holidays Father is to
be allowed visitation.
• The child is now more than 18 months old, having been
born in 2013. Accordingly, the schedule must provide more
detail concerning overnight visits, and in particular address
visitation conditions and issues relating to transferring the
child between the parents.
• The schedule should provide specific dates and times for
Father to communicate remotely with the child via Skype,
FaceTime or similar means when he is in Washington and the
child is in Jackson with Mother.
• It should gradually provide more visitation as the child gets
older, and provide a meaningful schedule until he reaches his
majority. The schedule should include visitation at Father’s
home when appropriate, and allocate transportation costs and,
if necessary, specify details of travel. It should address
summer visitation for a period appropriate to the child’s age.
Id. at ¶ 21, 360 P.3d at 1005.
[¶14] Mother contends that because the visitation terms in the Divorce Decree lack the
specificity we ordered in IC, they are inadequate to support a contempt holding. This
argument ignores the distinctions between IC and the case before us.
[¶15] First, in IC, custody and visitation were hotly contested and were complicated by
the parties’ geographical separation, with the mother living in Jackson, Wyoming, and
the father living in Washington. IC, ¶ 3, 360 P.3d at 1001. Our concern with the lack of
specificity in the visitation order was heightened “given the parties’ acrimonious
relationship and the distance between them.” Id. at ¶ 21, 360 P.3d at 1005. In contrast, in
the case presently before us, there is no indication that when the district court entered the
Divorce Decree, it had before it parties or circumstances that would make the ordered
visitation unworkable. In fact, the Divorce Decree indicated that the parties were
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“generally agreeing and stipulating to the following facts and conditions,” which
included:
[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 * * * .
[¶16] More importantly, however, the present case comes to us in a different posture
than the appeal in IC. Unlike in IC, we are not presented with a challenge to the entry of
a visitation order. Certainly the visitation order in this case could have been, and perhaps
should have been, more detailed with regard to both in-person and telephonic visitation.
That is not, however, the question before us. The question here is whether the district
court could reasonably conclude that the Divorce Decree was sufficiently clear and
specific to find a willful violation by Mother. Given the Decree’s provisions and the
evidence the district court had before it, we answer that question in the affirmative.
[¶17] The Divorce Decree provisions in question directed:
3. That [Mother] is awarded the legal and physical
custody of the parties’ children * * * ; and that [Father] will
be entitled to reasonable visitation upon reasonable notice
with the first six months of visitation to be supervised by a
third party such as the Casper Family Connections paid for by
[Father]. Following the successful completion of the
supervised visitation [Father] can have visitation with
reasonable notice for alternate weekends and alternate
holidays. In order for visitation to be utilized [Father] must
not utilize in any fashion alcohol or illegal/synthetic drugs or
in any way improperly utilize drugs whether the drugs are
prescribed to [Father] or not. [Father] will be responsible for
any transportation costs in exercising his visitation.
****
10. Obligation to Cooperate. * * * [B]oth parents
shall:
****
(b) Make every reasonable effort to insure free access
of the child to and unhampered contact with both parents.
[¶18] The testimony on which the district court based its contempt ruling included the
following:
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a. The Father was aware of the visitation ordered
by the Court at the trial on September 11, 2015; but the
written Decree was not presented to the Court by Mother’s
attorney until February of 2016, and he did not see his
children until after the Decree was entered.
b. The Father testified that he wasn’t allowed
phone contact until March of 2016, and he was allowed
telephone contact with the children on Tuesdays, Thursdays
and Saturdays at 7:30 p.m. The Mother testified that she
suggested the telephone contact and the Father was sporadic
in calling the children.
c. The Father testified that he wanted to visit with
the children in-person, contacted Casper Family Connections
to set up visitation, and was advised of the fees and costs
associated with that service provider.
d. The Father testified that he could not afford to
use Casper Family Connections because they did not have a
sliding-fee scale. The Father then contacted Mercer House
and Central Wyoming Counseling Center to see if he could
arrange visitation with those service providers, as they both
offered sliding fee scales. Both of those service providers
were available to supervise visitation. The Father believed
that Mercer House and Central Wyoming Counseling Center
qualified as a “third party” who could supervise visitation
under the Decree.
e. The Father testified that he advised the Mother
of the other service providers and continued to ask for
visitation with his children. The Mother allowed him to see
the children six times between March and July of 2016.
****
k. The Father testified that the sixth time he saw
the children, the Mother dropped the children off at the
Eastridge Mall, and the Father drove the children to Mother’s
home after the visit was complete.
l. The Father testified that after he returned the
children from the Eastridge Mall visit, the Mother refused to
afford him any visitation with the children, and he did not
have contact with the children in any form as of July 3, 2016.
m. The Mother testified that she complained to the
Father about his boundaries and that his texts to her were
inappropriate.
n. The Mother admitted that she refused to allow
the Father to have telephone contact with the children.
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o. The Mother admitted that she refused to allow
visitation with the Father after July 3, 2016, unless it was
supervised by Casper Family Connections.
p. The Mother admitted that the children asked to
see the Father during the times she was refusing visitation and
telephone contact.
[¶19] With respect to in-person visitation, the Divorce Decree’s visitation provision is
clear on its face that Casper Family Connections was one but not the only party allowed
to provide supervision for Father’s first six months of visitation. Additionally, as we
noted above, the requirement that an order must be clear, specific, and unambiguous to
support a contempt finding is aimed at ensuring the charged violation was willful. JLK,
¶ 21, 375 P.3d at 1113. The record here shows that before Mother unilaterally
discontinued Father’s visits with the children, she had allowed visitation supervised by
parties other than Casper Family Connections. Her conduct in allowing those visits is
evidence that Mother understood the visitation terms, including the flexibility of the
supervision requirement.
[¶20] The Decree’s visitation provision did not require that a particular party or entity
act as supervisor for Father’s visits and no provision in the Decree allowed Mother to
unilaterally discontinue Father’s visitation. Based on the clear terms of the Decree and
Mother’s conduct, which reflected her understanding of the visitation terms, the district
court could reasonably conclude that Mother willfully violated the Decree when she
refused to allow Father visitation except as supervised by Casper Family Connections.
[¶21] With respect to telephonic visitation, Mother is correct that the Divorce Decree
contains no provision specifically requiring such visitation. The Decree does, however,
clearly require that each parent “[m]ake every reasonable effort to insure free access of
the child[ren] to and unhampered contact with both parents.” The children asked to see
their father, and Father tried to have both in-person and telephonic visitation with them.
Although the Decree does not specifically require telephone access, the district court
could reasonably conclude that when Mother refused to allow Father telephonic or in-
person visitation with his children, she willfully interfered with the children’s access to
Father in violation of this non-interference provision of the Decree.
CONCLUSION
[¶22] The Divorce Decree’s visitation and cooperation provisions were sufficiently clear
and specific to support the district court’s order holding Mother in contempt for her
refusal to allow Father in-person or telephonic visitation with the couple’s children.
Affirmed.
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