Carl S. Olsen v. Candy M. Olsen
2013 WY 115
| Wyo. | 2013Background
- Carl S. Olsen and Candy M. Judd (referred to as Ms. Olsen) divorced in 2010; custody of three children was awarded to Ms. Olsen. Olsen appealed and this Court previously affirmed in part.
- While post-divorce proceedings were pending, Olsen sought modification of custody alleging deterioration of the children’s health, inadequate care by Ms. Olsen, and an intended relocation to Utah; Ms. Olsen moved for contempt over Olsen’s failure to list jointly-owned property for sale as ordered in the divorce decree.
- After a three-day hearing with testimony from 17 witnesses, the district court denied Olsen’s custody modification petition for lack of a material change in circumstances and found Olsen in contempt for willfully failing to list the property.
- The guardian ad litem recommended transfer of custody to Olsen, but the district court rejected that recommendation after weighing credibility and other evidence.
- The district court noted Olsen’s continued substandard housing, prior DUI, suspended driving privileges, long-distance weekend visitation trips that burdened the children, and instances suggesting controlling or spiteful conduct; the court found relocation-related changes insufficient to overcome Olsen’s unchanged conduct.
- Olsen appealed pro se, raising six issues: material change, due process/recusal, best interests, award of costs, contradictory testimony/perjury, and contempt. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material change in circumstances (custody modification) | Olsen: children’s health and care deteriorated under Ms. Olsen; relocation and other facts constitute material change warranting transfer. | Ms. Olsen/District Court: circumstances not materially changed; many allegations unproven; some relocation effects were neutral or beneficial. | No abuse of discretion; district court reasonably found no material change. |
| Due process / recusal of judge | Olsen: judge should have recused because Olsen filed complaint with judicial conduct commission. | Ms. Olsen/District Court: no affidavit or factual support required by W.R.C.P. 40.1(b)(2) was submitted; no basis for mandatory recusal. | Denial of recusal did not deny due process; Olsen failed to follow required affidavit procedure. |
| Consideration of best interests of children | Olsen: district court failed to give paramount consideration to best interests. | Ms. Olsen/District Court: court considered best interests but first properly required showing of material change; many findings implicated children’s welfare. | Court did not err; it applied the two-step framework and appropriately focused on material change first. |
| Award of costs to Ms. Olsen | Olsen: challenges award of certain litigation costs. | Ms. Olsen: sought costs; district court awarded them. | Appellate court declined to consider this issue (sanction for brief formatting violations). |
| Contradictory testimony / perjury | Olsen: testimony by Ms. Olsen and other witnesses contained contradictions and perjury which district court ignored. | Ms. Olsen/District Court: credibility and evidentiary conflicts were considered by the finder of fact. | Court will not disturb district court’s credibility resolutions; no showing it ignored contradictions. |
| Contempt for failure to list property | Olsen: noncompliance not willful or insufficient evidence of contempt. | Ms. Olsen/District Court: Olsen admitted noncompliance; record supports willful disobedience and spiteful motives. | Affirmed: sufficient evidence to support finding of willful contempt. |
Key Cases Cited
- Hayzlett v. Hayzlett, 167 P.3d 639 (Wyo. 2007) (establishes two-step test for custody modification: material change first, then best interests)
- Arnott v. Arnott, 293 P.3d 440 (Wyo. 2012) (relocation and derivative factors may constitute a material change; repudiated prior presumption favoring custodial parent’s relocation)
- Durfee v. Durfee, 199 P.3d 1087 (Wyo. 2009) (appellate review of custody decisions for abuse of discretion; view evidence favorably to prevailing party)
- Reavis v. Reavis, 955 P.2d 428 (Wyo. 1998) (appellate standard: afford prevailing party favorable inferences and omit conflicting evidence)
- Roberts v. Locke, 304 P.3d 116 (Wyo. 2013) (standard of review for civil contempt in domestic relations matters)