Domenico v. Daniel

541 P.3d 420

Todd Andrew DOMENICO, Appellant (Defendant),

v.Josie DANIEL f/k/a Josie Daniel Domenico, Appellee (Plaintiff).

Josie Daniel f/k/a Josie Daniel Domenico, Appellant (Plaintiff),

v.Todd Andrew Domenico, Appellee (Defendant).

S-23-0080, S-23-0106, S-23-0081

Supreme Court of Wyoming.

January 10, 2024

Representing Todd Andrew Domenico: Anna Reeves Olson, Long Reimer Winegar, LLP, Casper, Wyoming; Elizabeth Greenwood and Inga L. Parsons, of Counsel, Greenwood Law, LLC, Pinedale, Wyoming. Argument by Ms. Olson.

Representing Josie Daniel: Christopher J. King, Apex Legal, P.C., Worland, Wyoming. Argument by Mr. King.

Guardian ad Litem: No appearance.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

GRAY, Justice.

[¶1] Todd Andrew Domenico (Father) and Josie Daniel (Mother) divorced on April 9, 2018. The Decree of Divorce (Decree) granted joint legal custody of the parties’ two children to Father and Mother and primary physical custody to Father. In 2020, Mother filed for a modification of the Decree requesting primary physical custody of the children. After a trial, the district court continued primary physical custody with Father and increased Mother's visitation. Father and Mother filed cross-appeals. We reverse in part and remand for further proceedings.

ISSUES

[¶2] Mother and Father, while advocating different outcomes, raise some of the same issues and each raises separate issues. We reorganize and rephrase these issues as follows:

1. Did the district court abuse its discretion when it denied a W.R.C.P. 35 psychological evaluation of Mother and prohibited inquiry into Mother's mental health?

2. Did the district court fail to make sufficient findings of fact to support its custody and visitation determinations under W.R.C.P. 52 ?

a. Did the district court err in failing to award Mother primary physical custody or a shared custody arrangement?

b. Did the district court err in failing to allocate visitation for the children's birthdays; extending Mother's summer visitation for two weeks with no weekend visitation for Father; and removing the requirement that the parents provide qualified caregivers for WGD?

3. Did the district court abuse its discretion in failing to designate one parent as a final decision-maker on issues of the children's welfare, especially medical decision-making?

4. Did the district court violate Mother's fundamental right to parent when it prohibited Mother from obtaining a psychological evaluation of her children?

5. Did the district court abuse its discretion when it refused to consider allegations of Mother's psychological abuse of one child after the evidence closed?

FACTS AND PROCEDURAL HISTORY

[¶3] Mother and Father have two children, WGD (born in 2007) and SMD (born in 2011). WGD is severely autistic and requires specialized care. In 2018, after lengthy, hostile litigation, the district court awarded Father and Mother joint legal custody of the children and gave primary physical custody to Father. In the Decree, the district court found that Father had been the children's primary caregiver in a stable home environment since 2013 and that Mother struggled with her development as a parent because of opiate addiction and mental health issues. She was awarded supervised visitation every other weekend, Wednesday evening visitation, and four weeks during the summer vacation. The Decree placed conditions on Mother's visitation. Some related to the care of the children, and others addressed Mother's rehabilitation.

[¶4] The Decree required qualified caregivers for WGD. Specifically, the court ordered:

Mother shall provide [Applied Behavior Analysis (ABA)] therapy in her home for WGD during her periods of responsibility as recommended by WGD's therapists, and Mother shall employ assistant(s) to assist her with WGD's care. The parties shall cooperate in facilitating SMD's participation in any agreed-upon activity, regardless of which parent SMD is with during those activities.

[¶5] In 2020, after completing the rehabilitative conditions, Mother filed a Motion to Modify Custody, Visitation, and Child Support. She originally sought primary physical custody of the children but later added an alternative request for a shared custody arrangement.

[¶6] Prior to trial, Mother filed her Expert Witness Designation. Mother's designation named Dr. Amanda Turlington, a licensed psychologist, as a retained expert. According to the designation, Mother retained Dr. Turlington to conduct psychological examinations on both children "to determine the predicted effects on each child of a modification to the current custody and visitation arrangement, as well as other factors." The designation asserted the evaluations were scheduled for "early March" and that the designation would be supplemented when a report was available. Father and the guardian ad litem (GAL) first learned of Mother's proposed psychological evaluation of the children from the Expert Witness Designation. Father filed a motion to strike Mother's expert and prohibit the evaluation of the children.

[¶7] Father based his objection on two arguments. First, Mother's designation failed under W.R.C.P. 26(a)(2)(B)(i) and (ii). Rule 26 in relevant part requires that the disclosure of a witness retained or specially employed to provide expert testimony must be accompanied by a written report. The written report must contain, among other things, "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; [and] (ii) the facts or data considered by the witness in forming them[.]" Second, Mother failed to seek court approval for an evaluation of the children under W.R.C.P. 35.

[¶8] After finding that Mother had failed to submit the required information or show good cause for the evaluation, the district court granted Father's motion. It prohibited a psychological evaluation of the children and struck the witness.

[¶9] The proceedings were bifurcated with the initial hearing limited to the question of whether there had been a material change of circumstances (First Phase: Material Change of Circumstances or Change of Circumstances Trial). Once the district court found a material change of circumstances, the case proceeded to trial on modification of custody and visitation (Second Phase: Modification of Custody and Visitation or Custody Modification Trial).

A. First Phase: Material Change of Circumstances

[¶10] At the July 2021 Change of Circumstance Trial, Mother presented the testimony of Dr. Sadie Cole Monaghan.¹ Dr. Monaghan conducted a psychological evaluation of Mother on April 16, 2018, followed by weekly individual therapy sessions with Mother which continued through the time of the trial. Dr. Monaghan testified that Mother had shown significant improvement in her parenting skills and mental health issues. Mother also called her primary substance abuse therapist, Anne Ellingson. Ms. Ellingson's participation in Mother's treatment began shortly after the divorce was filed in 2017 and continued until 2019. In March 2019, she released Mother from further drug rehabilitation treatment but recommended continued mental health treatment. Two caregivers who worked with WGD in Mother's home testified the children had a close and loving relationship with Mother. Sara Devon Viehman, Mother's friend and coworker, testified about Mother's likely success in her new job, her personal improvement, and her close relationship with the children.

[¶11] The district court found a material change of circumstance as follows:

It was unequivocally established at trial that Mother has made vast improvements in personal development and her ability to parent since the time of the Decree in 2018. Mother struggled with addiction. She is now well into recovery. She was subject to a variety of treatment and testing requirements. She has met those benchmarks and completed treatment. She was unemployed. She is now employed. She rented a home. She now owns a home. She was faced with a large volume of conditions for supervised and unsupervised visitation. She has complied with those conditions now for a long period and transitioned some time ago to unsupervised visitation. She had health issues and physical limitations. Those limitations have resolved. It is uncontested that Mother now thrives. Mother should be commended for her achievements.

It is also not contested that Father has maintained as a parent since the entry of the Decree. His life has not been stagnant, however. Changes in his life include the addition of a new partner who now lives in the home. That partner's daughter also resides at Father's home. The Court heard testimony that the parties’ children continue to do well in the new environment at Father's house.

Thus, this is not a case where the custodial parent has diminished or remained stagnant. Both parents now appear to be on a more even footing as parents when compared to the circumstances at the time of trial.

B. Motions Prior to Second Phase: Modification of Custody and Visitation Trial

[¶12] After the district court's ruling on the Material Change of Circumstances Trial but prior to the Custody Modification Trial, the parties filed numerous motions—Father's Motion to Dismiss Petition or Alternative to Strike [Mother's] Experts² and for Sanctions (Motion to Strike); the GAL's Motion for an Order Requiring [Mother] to Obtain a Psychological Evaluation Pursuant to W.R.C.P. 35 (Rule 35 Motion); Mother's Expedited Motion for Order Regarding Medical Decision-Making Concerning COVID-19 Vaccination for the Minor Children; Father's Motion for Full Medical Authority to Make Medical Decisions for the Minor Children; and Mother's Expedited Motion for Order Permitting [Mother] to Make Medical Appointment for WGD.

1. Motion to Strike

[¶13] Father based his Motion to Strike on Mother's failure to comply with discovery.³ He cited many instances where Mother failed to comply with discovery requests entirely, provided only partial responses, or...