Martin v. Hart
Martin v. Hart
Opinion of the Court
*59[¶1] Heather Martin (Mother) and Christopher Hart (Father) had a brief romantic relationship, which ended before their child was born. Father filed a Petition to Establish Paternity, Custody, Visitation, and Support. The district court awarded primary physical custody to Mother, with a visitation schedule that requires extensive travel between Mother's residence in Glenrock, Wyoming, and Father's residence in Mesa, Arizona, until the child reaches school-age, at which time the parties must agree on a new visitation schedule or seek modification from the district court. The order also requires Father to pay child support below the presumptive statutory amount. Mother appeals the district court's visitation schedule and its child support determination. We reverse and remand.
ISSUES
[¶2] The parties raise three issues on appeal, which we rephrase:
1. Did Mother appeal an order over which this Court has jurisdiction?
2. Did the district court abuse its discretion when it imposed a graduated visitation plan requiring extensive travel that does not specify how visitation will work when the child starts kindergarten?
3. Did the district court abuse its discretion in establishing Father's child support obligation?
FACTS
[¶3] Father and Mother met in Casper, Wyoming, during the summer of 2015, and began a romantic relationship. That fall, Mother and Father broke up, and Mother learned she was pregnant. Initially Father and Mother communicated about the pregnancy, but in early 2016, Mother changed her phone number and blocked Father on social media "so that he could not reach [her] anymore[.]" Meanwhile, Father moved to Mesa, Arizona, to accept a job. In March, Father filed a Petition to Establish Paternity, Custody, Visitation, and Support in district court.
[¶4] Mother gave birth to a son, LH, in June 2016. Father learned of the birth two days later from his mother, who had seen pictures of the baby on Facebook. Father travelled from Arizona to Wyoming to visit LH in July. He visited again in September, but Mother "kicked [him] out of the house" because he was taking photos after she had asked him not to. In November, Father and Mother entered into a Stipulated Temporary Agreement Establishing Paternity, Child Custody, Visitation and Support that established Father as LH's biological father, awarded Mother primary physical custody, established monthly visitation for Father, and required Father to pay child support of $646.78 per month during the pendency of the case. However, due to scheduling conflicts between Mother and Father and the expense of travelling from Arizona to Wyoming, Father missed monthly visitation in December 2016
[¶5] Mother quit working before LH's birth and did not seek new employment. While she was pregnant with LH, she and her older daughter lived with her mother and then a friend, without paying rent. She and her children then lived with her grandmother, again without paying rent. In 2017, she and her children moved in with her boyfriend, who pays for rent and utilities and bought her a car. Mother receives government assistance via food stamps and Medicaid.
[¶6] At the hearing on Father's petition, Father testified that he lives in Mesa, Arizona, with his fiancée and their infant son, where he works at an engineering firm. He also testified that he secured a spot for LH at a daycare center in Arizona, took parenting classes, and has a good relationship with LH, but has been prevented from spending more time with him because it was difficult to set up visitation with Mother and because he could not afford the approximately $1,500 *60cost of each visit. Father's mother testified that he is a good father to LH and his other son. His fiancée testified similarly, but added that visitation with LH "never goes smoothly" because "[e]very time he tries to get visitation it's never what he asks for."
[¶7] Father also testified that he could not pay both the cost of his monthly child support and travel costs to visit LH, but that Mother had told him not to worry about child support. Father requested that child support be reduced from the statutorily presumed amount to $300 per month so he could afford transportation costs to visit LH, and expenses for his other son. Father also asked for primary physical custody of LH or, failing that, either three-month rotations between his residence and Mother's or divided school year and summer visitation with alternating holidays.
[¶8] Witnesses for Mother testified that she is a good parent to both of her children and has a strong support system in the Casper area. Mother testified that she facilitates a relationship between LH and Father's parents and that, even though she and Father do not always communicate well, she wants Father and LH to develop a father-son bond. However, she was not yet comfortable with overnight visitation because Father and LH had not spent enough time together. Mother also requested primary physical custody with a graduated visitation plan for Father, with LH to begin travelling to Arizona overnight at age four.
[¶9] Applying the factors in
(i). The quality of the relationship each child has with each parent. The Court finds that the parties are equal in this regard. The testimony is that both of them have positive relationships with the child.
(ii). The ability of each parent to provide adequate care for the child throughout each period of responsibility, including arranging for the child's care by others as needed. There was testimony that [Mother] is a stay-at-home mom, and [Father] has arranged for childcare for the minor. There was also testimony that [Mother] is completely dependent on her boyfriend for all means of support except for the public assistance that she receives while living with him. So the Court finds that to be a neutral factor between the parties.
(iii). Regarding the relative competency and fitness of each parent, the Court finds that the parties are equal. They both appear competent, fit and able to care for the child.
(iv). The parents' willingness to accept all the responsibilities, including a willingness to accept care at specified times and to relinquish care to the other parent at specified times. The Court finds that [Mother] has unreasonably restricted visitation for [Father], has unreasonably restricted contact between [Father] and the child and has generally been somewhat inflexible. This factor favors [Father].
....
(viii). The geographic distance between the residences of the parties. [Mother] lives in Glenrock, and [Father] has relocated to Mesa. That is a distance that requires significant hours to drive and a fairly significant flight [ ] between the two locations, which is a consideration for this Court.
(ix). The current physical and mental ability of each parent to care for the child. The parties are equal with regard to that factor.
(x). Any other factors that the Court deems necessary and relevant. That factor would be that the child is almost two (2) and has lived the majority of his life with [Mother] and her significant other. Given the child's age, the Court finds that factor favors [Mother], only because [Father] had to relocate to take a job.
[¶10] The district court determined it in the best interests of LH to award legal and physical custody to Mother, subject to Father's reasonable visitation. It ordered a graduated visitation plan, under which Father has seven consecutive days of monthly visitation until LH turns two, ten consecutive days of monthly visitation from age two to three, and fourteen consecutive days of monthly visitation from age three to five. The order awarded Father summer visitation for three consecutive weeks in 2018, four consecutive *61weeks in 2019, six consecutive weeks in 2020, and eight consecutive weeks from 2021 on. It also established a holiday visitation schedule under which the parties were to alternate spring break and holidays, except Mother's and Father's days. It provided that "[a]ll holiday visitation shall supersede monthly visitation," and ordered Father to choose the dates for monthly visitation in odd-numbered years and Mother in even-numbered years. Finally, the district court ordered that "[o]nce the child starts kindergarten, if the parties cannot agree as to a monthly visitation schedule, they shall seek a modification of custody and/or visitation from the Court."
[¶11] The district court gave the parties several options for travel methods and cost allocation. Both parties can drive, bearing their own fuel and mileage costs, and meet halfway to exchange LH. Father can choose to fly to Casper to pick up LH and fly with LH back to Phoenix, Arizona, at his cost. If Father chooses this option, Mother must fly to Phoenix at the end of the visit to pick up LH and return to Casper with him, bearing the cost of these flights. Father can also choose to fly into Denver and have Mother meet him there to drop off LH. Again, Mother must fly to Phoenix at the end of the visit to pick up LH, and she must bear the cost of the drive to and from Denver and the flights into and out of Phoenix. Finally, Father can drive to Wyoming for visitation, and Mother must pay mileage for his return trip to Arizona. Under the order, Father chooses where visitation occurs and which travel method they use.
[¶12] Without stating the presumptive child support amount on the record, the district court deviated downward from statutory child support guidelines. It explained:
With regard to child support, I am imputing the ability for mother to earn a minimum wage at full-time employment. She is voluntarily unemployed at this point. And I am using the father's net income on a monthly basis of $3,552. I am considering the father's obligation for support of another child that is living in his home and his obligation to provide insurance for [LH] to arrive at a downward deviation for child support of $450 per month ....
[¶13] Mother timely filed a Notice of Appeal as to "all aspects of the Order of Paternity, Custody, Visitation, and Support ...." (Emphasis in original.)
[¶14] The parties immediately struggled to comply with the district court's order, and the court held a hearing on their motions to clarify. The district court recognized that the holiday provisions permit the parties to manipulate the monthly visitation schedule because the order provides that, if a party selects monthly visitation that falls within a holiday period, the holiday visitation takes precedence over monthly visitation, and monthly visitation will not be made up absent agreement. So, for example, during an even-numbered year where Mother has LH during spring break, she can schedule Father's visitation within the spring break dates. Because the holiday supersedes monthly visitation, she would deprive Father of his visitation that month. Likewise, during odd-numbered years where Father is to have LH during spring break, he can schedule visitation outside of the spring break dates and exercise both monthly and holiday visitation. The district court described this arrangement as a "poison pill" meant to "get the parties to cooperate with one another, even though there hasn't historically been good cooperation."
[¶15] The district court also clarified that Father is entitled to choose the visitation method, and he can schedule monthly visitation periods back-to-back, so long as they fall within different months. The court again referred to the arrangement as a "poison pill" designed to enhance cooperation. Mother objected, stating that it was inequitable for Father to choose the visitation method and that back-to-back visitation essentially afforded him custody of LH rather than visitation. The court responded that the goal of the visitation plan was "to allow [Father] the ability to develop a relationship with the child given the distance between the parties." The district court issued no written order on these clarifications.
[¶16] The district court held another hearing after Father filed a Motion to Show *62Cause, which alleged that Mother had willfully violated the court's order and asked the court to hold her in contempt. Father testified that Mother had denied him visitation on several occasions and that she refused to cooperate with his choice of travel, which had been the Denver exchange option "[e]very single time." The court found that missed visitation had been due to miscommunication or misunderstanding and refused to hold Mother in contempt.
DISCUSSION
I. Did Mother appeal an order over which this Court has jurisdiction?
[¶17] Whether this Court has jurisdiction is a question of law that we review de novo. Inman v. Williams ,
[¶18] Father argues that Mother's appeal should be dismissed for lack of jurisdiction because she is attempting to appeal the district court's clarification of its order, rather than the order itself. He argues that the clarification is not an appealable order because it did not determine the merits of the controversy; instead, it merely provided guidance as to how to comply with the order. We agree with this description of the clarification ruling, but our review of the record shows that Mother timely appealed an appealable order. Mother's Notice of Appeal specifically appealed the Order of Paternity, Custody, Visitation, and Support within 30 days of its entry, and before the clarification hearing had been held. In compliance with W.R.A.P. 2.07, she included the district court's order in an appendix to her Notice of Appeal. Her brief challenges the district court's award of visitation, its award of child support, and its allocation of travel expenses, all of which occurred in its Order of Paternity, Custody, Visitation, and Support.
II. Did the district court abuse its discretion when it imposed a graduated visitation plan requiring extensive travel that does not specify how visitation will work when the child starts kindergarten?
[¶19] The district court established a custody arrangement that gradually affords Father increased visitation. Mother argues that the visitation plan amounts to a de facto joint custody arrangement, which is contrary to the district court's finding that the best interests of the child would be served by awarding legal and physical custody to Mother.
*63Bruegman v. Bruegman ,
[¶20] We review custody and visitation determinations for an abuse of discretion. Williams v. Williams ,
[¶21]
....
(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 the 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.
"No single factor is determinative," and "depending on the case, different factors will present a greater need for emphasis. The one constant is that the resolution must be in the best interests of the children ...." Stevens ,
[¶22] First, the arrangement imposes instability on LH at a very young age. We have repeatedly explained that "stability in a child's life is of utmost importance." Williams ,
[¶23] Additionally, the district court failed to consider the difficulty the geographic distance between Mother and Father would cause LH. The court noted that the distance "requires significant hours to drive and a fairly significant flight [time] between the two locations" but did not appear to consider the impact of this regular disruption on LH. No matter which mode of transportation the parents choose, this visitation order will require LH to spend many hours each month on planes or in cars travelling between Wyoming and Arizona. As in Reavis , here the district court "provided scarce explanation for the custody arrangement ordered ... ; one which substantially deviates from the requests of the parties and is unique to the experience of this court."
[¶24] The district court's failure to determine how custody and visitation will work when the child starts school "further undermines the stability of his environment," Buttle v. Buttle ,
[¶25] This case is more like the custody arrangement imposed in Buttle . There, the district court directed two parents who lived in different cities to discuss where their child would attend school when he reached school age and, if they could not decide, to return to the district court to resolve the issue. Buttle ,
[¶26] Further, a custody and visitation plan involving frequent exchanges of a child and joint travel arrangements necessarily requires effective communication and cooperative decision-making between parents. See Johnson v. Clifford ,
[¶27] We recognize that crafting custody and visitation arrangements "encompasses one of the most difficult and demanding tasks assigned to a trial judge," Bruegman ,
III. Did the district court abuse its discretion in establishing Father's child support obligation?
[¶28] "We review a district court's order modifying child support, including deviations from presumptive child support, for abuse of discretion." Windham v. Windham ,
We will not interfere with the district court's decision regarding [deviation from the presumptive child support amount] absent a procedural error or a clear abuse of discretion. In determining whether the district court has abused its discretion, we must decide whether it could reasonably conclude as it did. 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.
Keck v. Jordan ,
[¶29] Mother contends that the district court abused its discretion in deviating from the presumptive child support amount because it considered Father's obligations to provide insurance for LH, without evidence of its cost, and to support his second child, without considering Mother's obligations to her other child.
[¶30] Child support calculated pursuant to
[¶31] Here, the district court's order did not set forth the presumptive child support amount, and we are unable to determine from the record what the presumptive child support amount would be. The district court ordered Father to pay monthly child support in the amount of $450, stating that it was deviating downward from the presumptive amount. The parties had stipulated to temporary child support based on Father's gross income of $3,556.17 per month during the pendency of Father's petition. But at the hearing on Father's petition, his attorney explained that "[another attorney] represented my client previously. They had come to an agreement about child support with [Mother's attorney], and I'm not sure what figures they used .... I don't believe they're correct." Father submitted a financial affidavit that listed his monthly gross income as $2,307.70. However, cross-examination revealed that this figure was incorrect. Father had listed the gross amount of his most recent paystub, but its pay period was only for half the month, meaning that his gross monthly income was roughly double the amount listed in his financial affidavit. Father testified that he had made a mistake and his gross monthly income "should be 4,000 [dollars]." He also testified, inconsistently, that his salary is $60,000 per year.
[¶32] In fixing child support, the district court did not choose any of these contradictory figures. Instead, it stated that it was "using father's net income on a monthly basis of $3,552." The district court did not state the presumptive child support amount, and the record does not contain reliable evidence to ascertain what that amount might be. See Noonan v. Noonan ,
[¶33] Although the absence of a presumptive child support amount is a sufficient basis to reverse and remand, the record on the district court's deviation is also perplexing. "A court may deviate from the presumptive child support [amount] upon a specific finding that [it] would be unjust or inappropriate in that particular case."
[¶34] We agree with Mother that the record includes no evidence of the cost of insurance, and that the district court did not consider her financial obligations to her other child. It also did not consider the cost of transporting LH to and from visitation, even though its order required extensive travel, which the parties had struggled to pay prior to the entry of the order. These omissions standing alone may not constitute an abuse of discretion. See Windham ,
CONCLUSION
[¶35] We remand for further proceedings consistent with this opinion.
Father visited LH over the Christmas holiday but missed some scheduled monthly visitation because he got in a car accident, and Mother told him she could not reschedule.
Mother's opening brief also argued that the district court imposed new obligations at the clarification hearing, resulting in a de facto modification of its order. However, neither the district court nor Father believed any new obligation arose at the clarification hearing, Mother conceded in her reply that "without a written order [the hearing was] little more than an expression of the district court's intent," and our review of that proceeding likewise does not reveal any obligations beyond those in the district court's order.
We agree that the visitation plan affords Father substantial visitation and "seems inconsistent with the district court's award of primary custody to [Mother]." Testerman v. Testerman ,
Williams , Testerman , and Reavis each related instability to joint custody arrangements, which were presumptively disfavored at the time those cases were decided. Williams , ¶ 26,
Mother also argues that the district court could not consider Father's other son in making custody and support determinations because the child was born out of wedlock and his paternity has not been adjudicated. She relies on an Arizona case, Castillo v. Lazo ,
Reference
- Full Case Name
- Heather MARTIN, (Respondent) v. Christopher HART, (Petitioner).
- Cited By
- 26 cases
- Status
- Published