Ianelli v. Camino
Ianelli v. Camino
Opinion of the Court
[¶1] After learning of Mother's intent to move from Buffalo, Wyoming, to Plains, Montana (a distance of nearly 600 miles), Father, Luke Camino, petitioned to modify custody and requested primary physical custody of the parties' four-year-old son, BDC. Mother, MonteReye Ianelli (n/k/a MonteReye Josephson), opposed a change in custody, but counterclaimed to modify Father's visitation schedule. After a one-day trial, the district court found that Mother's move constituted a material change in circumstances, and that it was in BDC's best interests to grant Father primary physical custody. Mother appealed and we reverse and remand.
ISSUES
[¶2] We reframe Mother's issues:
1. Did the district court abuse its discretion when it determined a material change in circumstances justified reopening its prior custody order?
2. Did the district court abuse its discretion when it determined that transferring custody to Father was in BDC's best interests?
[¶3] Father raises a threshold jurisdictional issue asserting that Mother failed to timely file her notice of appeal.
FACTS
[¶4] Mother and Father were never married, but had a child together, BDC, who was born in February 2013. Shortly after BDC's birth, Father filed a petition to establish paternity, custody, visitation, and support. The parties reached an agreement a few months later and the district court entered a stipulated order on August 13, 2013. The district court ordered joint legal custody and named Mother as BDC's primary physical custodian. The district court also ordered a graduated visitation schedule for Father, which began with supervised visits. Although both parties resided in Buffalo, Wyoming, the order included an alternative visitation schedule in the event either party relocated more than 250 miles from Buffalo.
[¶5] Following entry of the custody order, BDC lived in Buffalo with Mother and his older half-sister, K. Mother owned her home and continued to work as a waitress for a local restaurant, as she had for approximately 16 years. Her mother also lived in Buffalo and provided childcare while Mother worked.
[¶6] Father initially worked as a fencer and lived just outside of Buffalo. He later married. His wife has a daughter from another relationship, R, who is six months older than BDC. In 2014, Father moved his family into their own home on his mother's ranch near Clearmont, Wyoming-roughly thirty minutes from Buffalo. Father switched employment a year later and worked in water management until his brother-in-law offered him a job with a cattle operation in March 2016.
[¶7] The parties largely adhered to the visitation schedule set forth in the custody order.
[¶8] In August 2016, Mother decided to move to Montana in early 2017 to be with her fiancé. She informed Father of her relocation plans and the parties discussed adjusting Father's visitation schedule. Father did not approve of the move because BDC had lots of friends and family in Buffalo. A few weeks later, Mother filed a notice of her intent to relocate.
[¶9] After Mother relocated to Montana, she obtained employment as a waitress at a local resort; she worked Thursday through Sunday evenings from 5:00 p.m. to 9:00 p.m. While Mother worked, her husband or their eighteen-year-old niece provided childcare.
[¶10] The parties attempted to adhere to the alternative visitation schedule, but both parents were concerned about the amount of time BDC spent traveling between the households.
[¶11] By the time Father's summer visitation commenced, Mother was pregnant and developed complications with her pregnancy. Due to her condition and her husband's busy work schedule, Mother went to Buffalo on June 1, 2017, to stay with her mother for the summer.
[¶12] The district court held a one-day trial on August 2, 2017. The parties submitted proposed findings of fact and conclusions of law shortly thereafter. Several months later, on January 8, 2018, the district court entered its Findings of Fact, Conclusions of Law, and Order . The district court granted Father primary physical custody of BDC commencing February 1, 2018. The court granted Mother visitation the last full week of every month, but did not provide any additional visitation for holidays or extended time in the summer until BDC enters kindergarten. Father testified that if granted custody, he would not enroll BDC in kindergarten until he is six years old.
[¶13] Mother filed a Motion for New Trial or, in the Alternative, Motion to Alter or Amend Judgement (Rule 59 motion) on February 5, 2018 and requested a hearing. The *65district court did not schedule a hearing or enter an order on Mother's post-judgment motion. Mother filed a notice of appeal on June 6, 2018.
DISCUSSION
I. Jurisdiction
[¶14] We first determine whether we have jurisdiction to consider this appeal. Evans v. Moyer ,
[¶15] A timely-filed Rule 59 motion tolls the time to file a notice of appeal if filed no later than 28 days after entry of the judgment. W.R.C.P. 59(b), (e) ; W.R.A.P. 2.02(a). The time for filing a notice of appeal begins anew after an order granting or denying the Rule 59 motion is entered, or when the motion is deemed denied. W.R.A.P. 2.02(b) ; see also Hodges v. Lewis & Lewis, Inc. ,
[¶16] Generally, civil case decisions apply retroactively because the "ruling of a court is deemed to state the true nature of the law both retrospectively and prospectively." Harvey By & Through Harvey v. Gen. Motors Corp. ,
[¶17] Prior to our decision in Essex , we held that if a post-judgment "motion was titled a motion to reconsider, or appeared after review of its substance to be a motion to reconsider," the time for appeal was not tolled. Essex Holding, LLC , ¶ 33,
An appellate court wastes judicial resources by confirming that the [post-trial] motion did not repeat issues made before *66judgment was entered. It is an 'arduous' process that is both 'inefficient' and susceptible to 'inconsistent results.' It compels this Court to review the merits of the motion to determine whether the motion could be asserted at all-effectively premising the validity of a post-judgment motion on the likelihood of its success. Finally, it denies the right of appeal to an appellant who files a post-judgment motion that merely repeats arguments, even though the very reason that a trial court should deny such a motion is that the appellant's 'proper recourse is appeal-not reargument.' 'We do not function for the purpose of ... mak[ing] an appeal disappear, but exist to administer justice to those who come to settle their disputes .'
Id. ¶ 39,
[¶18] Father also argues that Mother's appeal is untimely because Mother missed any tolled deadline to file her notice of appeal by one day. We disagree. Because the district court did not rule on Mother's Rule 59 motion, it was deemed denied 90 days after she filed it. W.R.C.P. 6(c)(4). In computing the time prescribed, the day of the event from which the designated period of time begins to run is not included. W.R.C.P. 6(a). The last day of the period is included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday or legal holiday.
[¶19] We conclude that Mother's Rule 59 motion requested the district court to consider the merits of its order and was timely filed; thus, it tolled the time for an appeal. Mother timely filed her notice of appeal after her motion was deemed denied. We therefore have jurisdiction to consider the merits of Mother's appeal.
II. Custody Modification
[¶20] "We review a district court's decision on a petition to modify child custody for an abuse of discretion, and we will not disturb the decision absent a procedural error or a clear abuse of discretion." Johnson v. Clifford ,
[¶21] 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 ,
A. Material Change in Circumstances
[¶22] Mother claims the district court abused its discretion when it determined that a material change in circumstances justified reopening the original custody order. She argues that Father was required to show that her move to Montana adversely affected BDC's welfare before her relocation could constitute a material change in circumstances necessary to allow review of the district court's prior custody determination. Mother further argues that any change in circumstances must be material to the relief sought. She asserts that although a parent's relocation may constitute a material change in circumstances, any change in circumstances due to her relocation was material only as to Father's visitation and was not material to custody modification.
[¶23] "A district court's finding concerning a material change in circumstances is principally a factual determination to which we accord great deference." Meehan-Greer v. Greer ,
[¶24] "[W]e have never said the district court must wait until the children exhibit negative consequences before reconsidering custody and/or visitation." Jacobson , ¶ 19,
[¶25] Mother's attempt to restrict review of the original order to Father's visitation schedule is also unavailing. Mother admits that her relocation created a material change in circumstances because it rendered alternating weekend visitation unworkable. However, she argues that the material change is only relevant to modifying the visitation schedule-not to custody modification. We rejected a similar argument in Booth , ¶ 21,
[¶26] In Booth , the mother argued that the change in circumstances concerned only the location of the father's visitation and not the visitation schedule itself.
B. Best Interests
[¶27] A material change in circumstances does not automatically warrant a change in custody. Jensen , ¶ 12, 297 P.3d at 773 ; Arnott , ¶ 41, 293 P.3d at 458 (citation omitted). Instead, "[c]ustody must be arranged so as to be in the best interests of the child(ren) on an individualized basis." Jensen , ¶ 12, 297 P.3d at 773 (quoting JRS v. GMS ,
[¶28] In considering BDC's best interests, the district court made the following findings:
6. Mother relocated to Montana with very little discussion with Father about the move. Additionally, the parties were unable to develop a new parenting plan to address the geographic distance that now exists between them.
7. Mother returned to the Johnson County area due to complications associated with her pregnancy and failed to notify Father of the relocation. Mother plans to return to the northwest Montana area following the birth of her new child.
8. Father presently works for a large cattle operation and his work is primarily completed during the day light hours. Additionally, Father works in an area that is geographically close to his extended family which gives him access to a number of care providers who are related to the minor child in this case. Father's work schedule is flexible and he can make adjustments to accommodate for providing for his child. Furthermore, Father's work schedule is lighter during the fall and winter months which allows him to be more available to care [for] his minor child.
9. Mother is presently working at a local restaurant but upon returning to Montana will return to employment at a local resort. This employment requires her to be away from the minor child in the evening several days a week.
The district court made additional findings when it analyzed the statutory best interest factors.
[¶29] Mother disagrees with the district court's findings. She contends that the findings are insufficient and demonstrate the court failed to consider: (1) the impact of separating BDC from his sister, K; (2) the impact of separating BDC from his primary caregiver; and (3) the relocation factors specific to custody modification. She also contends that the district court's findings as to the statutory best interest factors weighing in Father's favor are contrary to the evidence. Mother argues that the district court's various errors led to a custody arrangement that promotes instability and is not in BDC's best interests.
1. Sibling Separation
[¶30] We have consistently acknowledged a strong public policy in favor of preserving sibling relationships and "[k]eeping siblings together in the same household[.]" Paden , ¶ 19,
must assist the trial judge in articulating on the record the relevant factors and their relative weight which, in the lawyer's professional judgment, should act as a foundation for the trial court's exercise of judicial discretion.
Paden , ¶ 19,
[¶31] The record reflects that BDC has numerous half- and step-siblings, and that the district court's order separated BDC from his half-sister K. Trial counsel did not remain passive on this issue as they explicitly addressed sibling separation in their proposed findings of fact and conclusions of law. The district court nevertheless failed to address this material factor.
2. Primary Caregiver
[¶32] We have recognized that the child's dependence on the primary caregiver is an important consideration in determining custody and is often a "crucial factor." Williams , ¶¶ 19, 21,
[¶33] Although the parties addressed BDC's primary caregiver at trial and in their proposed findings of fact and conclusions of law, neither the record nor the district court's order shows that the court weighed primary caregiver status in awarding custody to Father. Here again, a material factor deserving significant weight was ignored.
3. Relocation Factors
[¶34] We have identified three non-exclusive factors to aid the district court in its best interests determination "when modification of a custody order is sought due to a parent's relocation[.]" Paden , ¶ 11,
[¶35] Regarding the first relocation factor, the district court found that both Mother and Father are "physically and mentally able to care for BDC," both are "fully capable and have demonstrated an ability to care for BDC," both enjoy a good relationship with BDC, and both parents have "consistently communicated well, and regularly, over the past four years[.]" The district court further found that "there is little in the way of parent-child communication that needs to be improved upon[.]"
[¶36] The district court made no specific findings regarding the second and third relocation factors-Mother's motive for relocating and whether reasonable visitation is still possible for Father. Because Mother counterclaimed for modification of visitation, this case, in particular, calls for consideration of whether reasonable visitation is still possible for Father. Paden , ¶ 11,
CONCLUSION
[¶37] The district court did not abuse its discretion when it determined that a material change in circumstances justified reopening its prior custody and visitation order. However, we conclude the district court abused its discretion when it ignored the material factors discussed above. We therefore reverse the district court's custody modification order and remand for further proceedings consistent with this opinion.
KAUTZ, Justice, specially concurring, in which DAVIS, Chief Justice, joins.
[¶38] I agree that, under the circumstances presented here, this case must be reversed and remanded to the district court for additional findings regarding separation of the siblings because our precedent requires the district court make specific findings on that issue. See, e.g. , Produit v. Produit ,
[¶39] Appellate review of district court custody determinations and modifications begins with the acknowledgment that district courts have broad discretion. Our precedent is very clear in this regard:
This Court has consistently recognized the broad discretion enjoyed by a district court in child custody matters. We will not interfere with the district court's custody determination absent procedural error or a *71clear abuse of discretion. In determining whether an abuse of discretion has occurred, our primary consideration is the reasonableness of the district court's decision in light of the evidence presented. We view the evidence in the light most favorable to the district court's determination, affording every favorable inference to the prevailing party and omitting from our consideration the conflicting evidence.
Walker v. Walker ,
[¶40] I agree with the majority that the district court abused its discretion by failing to make explicit findings regarding BDC's primary caregiver, not because the "primary caregiver" is a special factor which always merits explicit findings, but because the parties requested findings under W.R.C.P. 52(a).
[¶41] We encourage district courts to place on the record the facts crucial to their child custody decisions even without a Rule 52(a) request. TW v. BM ,
[¶42] We have not prescribed specific requirements for Rule 52(a) findings of fact in child custody cases. See generally , In re KRA ,
This Court has said that findings pursuant to a W.R.C.P. 52(a) request must be sufficient to indicate the factual basis for the decision on the contested matters. Lebsack v. Town of Torrington ,698 P.2d 1141 , reh. denied and case remanded703 P.2d 338 , order amended707 P.2d 1389 (Wyo. 1985). We have further stated:
[T]he requested findings need not be set forth in elaborate detail but need only be clear, specific and complete in concise language informing the appellate court of the underlying bases for the trial court's decision.
Whitefoot v. Hanover Insurance Company ,561 P.2d 717 , 720 (Wyo. 1977).
O's Gold Seed Co. v. United Agri-Products Fin. Servs., Inc. ,
[¶43] The majority opinion addresses the primary caregiver factor separately from the considerations set out in
[¶44] The primary caregiver discussion in each of the cases cited in the majority opinion was in the context of an initial custody determination. See Bruegman , ¶ 1,
*72In re Paternity of JWH ,
[¶45] Finally, I believe we should provide greater direction to the district court upon remand. Our remand should direct the district court to make specific findings with respect to sibling relationships and separation and to the quality of relationship/primary caregiver status/child stability, based on Mother's Rule 52 demand. Then, the district court should re-evaluate the best interests of BDC giving consideration to those additional findings.
BDC was now three years old and Father's graduated visitation consisted of every other weekend, alternating every two weeks in the summer months, and holiday visitation. While Father was also entitled to visitation every Wednesday evening, he instead kept BDC a few hours longer during his weekend visits.
Mother filed a second notice of her intent to move on September 9, 2016, which changed her new address from Missoula to Plains.
Mother married her fiancé on March 1, 2017. Her husband has three children, ages nine, six, and five, who visit frequently and regularly in the winter, but less regularly from May to October due to their father's construction work schedule.
The alternative visitation schedule provided Father with alternating weekend visitation. Father testified he received all of his visitation except one weekend when Mother attended a family funeral.
Mother did not notify Father of her plan to stay in Buffalo for the summer until just prior to her scheduled visit with BDC on June 8.
In Arnott , we explained that new issues created by a parent's relocation may preclude application of res judicata, including when there is a change in the ability of the parties to maintain the existing parenting agreement and a change in the ability of the children to maintain a close relationship with the remaining parent, inter alia . Arnott v. Arnott ,
The statutory factors are:
(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.
Reference
- Full Case Name
- MonteReye IANELLI, (Respondent) v. Luke CAMINO, (Petitioner).
- Cited By
- 21 cases
- Status
- Published