299 P.3d 88
Wyo.2013Background
- Mother sought modification of custody and visitation; district court denied modification after finding no material change in circumstances.
- Original 2007 divorce granted Father primary custody with Mother awarded liberal visitation.
- 2010 Mother filed motion to modify; 2012 hearing held with lay and expert witnesses; court held no material change and favored limited cross-action by Father in scheduling.
- Counselor notes and written opinion from treating counselor were argued as admissible evidence; district court ruled them inadmissible hearsay.
- On appeal, Mother argued material change and admissibility issues; court affirmed denial of modification and declined to consider admissibility as a first-time issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification: whether there was a material change in circumstances | Willis contends changes occurred warranting custody modification. | Davis urges no material change justifying modification. | No material change; denial affirmed. |
| Admissibility of treating counselor’s notes and opinion | Notes/opinion should be admissible as relevant counseling records. | Notes/opinion are inadmissible hearsay. | Evidence deemed inadmissible hearsay; issue not considered on appeal. |
Key Cases Cited
- In re TLJ (CLH v. MMJ), 129 P.3d 874 (Wyoming 2006) (governs modification jurisdiction when no material change)
- Willis v. Davis, 243 P.3d 568 (Wyoming 2010) (res judicata and material change prerequisites for modification)
- Jensen v. Milatzo-Jensen, -- P.3d -- (Wyoming 2013) (confirms limits on modifying custody absent material change)
- Bachand v. Walters, 809 P.2d 284 (Wyoming 1991) (court properly exercises discretion in visitation scheduling)
- Washington v. State, 261 P.3d 717 (Wyoming 2011) (first-time appellate arguments not reviewed absent jurisdictional/fundamental issues)
- Erwin v. State, DFS, 237 P.3d 409 (Wyoming 2010) (context for appellate review of evidentiary rulings)
- Glenn v. Union Pac. R.R. Co., 262 P.3d 177 (Wyoming 2011) (evidentiary rulings reviewed for abuse of discretion)