Brandon Lee Jensen v. Margaret E. Milatzo-Jensen
2013 WY 27
| Wyo. | 2013Background
- Divorce between Father and Mother (2007) with Mother's primary custody and joint legal custody allocation; stipulation in 2007 granting Father five overnight visits every two weeks, alternating holidays, and two non-summer weeks; 2010 alteration replacing two one-week summer visits with a sixty-day summer visit after Father moved to Wellington, Colorado; Mother filed a motion to modify visitation citing relocation as a material change in circumstances; district court held relocation and ongoing parental acrimony justified modification in child's best interests; subsequent rulings denied Father’s requests (expert testimony, abatement of child support, modification of child support), ordered partial day-care reimbursement to Father, and awarded attorney’s fees to Mother; this appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification of visitation based on material change in circumstances | Arnott overruled Watt; relocation can be material change | Relocation plus conduct justify modification | Modification affirmed; relocation can be material change in circumstances |
| Exclusion of expert testimony | Experts would support best-interest of child | Trial court did not abuse discretion; conflicts/scope restrictions proper | No abuse of discretion; restrictions reasonable |
| Abatement of child support | Child custody exceeded 40% and contributions were substantial | Abatement should be granted under statute | Abatement granted for appropriate period; remanded to determine amount |
| Petition to modify child support | 40% custody and substantial contributions warrant shared-custody calculation | No 40% threshold met under existing schedule; no >20% change | Denied; modification of child support inappropriate under record; shared custody calculation not applied |
| Day-care reimbursement and attorney's fees | Mother should reimburse full day-care; fees reasonable | Decree absolves Father of half day-care once child support paid; fees excessive | Day-care reimbursement partially reversed; attorney's fees award reversed for lack of demonstrated reasonableness |
Key Cases Cited
- In re Paternity of JWH, 252 P.3d 942 (Wy. 2011) (establishes two-step test for visitation modification: material change and best interests)
- Arnott v. Arnott, 293 P.3d 440 (Wy. 2012) (relocation may constitute material change in circumstances)
- JRS v. GMS, 90 P.3d 718 (Wy. 2004) (custody modified on individualized best interests; proximity impact factors)
- Watt v. Watt, 971 P.2d 608 (Wy. 1999) (relocation alone not sufficient; overruled for welfare considerations)
- Cranston v. Cranston, 879 P.2d 345 (Wy. 1994) (substantial contributions required; not nominal or merely necessities)