Kimzey v. Kimzey

461 P.3d 1229

Tyler R. KIMZEY, Appellant (Defendant),

v.Shelby K. KIMZEY, Appellee (Plaintiff).

S-19-0194

Supreme Court of Wyoming.

April 22, 2020

Representing Appellant: Elizabeth B. Lance, MJ Hall, Lance & Hall LLP, Cheyenne, Wyoming. Argument by Ms. Lance.

Representing Appellee: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

Guardian Ad Litem: Sarah J. Manwarren, Jacobs Polidora, LLC, Laramie, Wyoming.

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

KAUTZ, Justice.

[¶1] Tyler R. Kimzey (Father) and Shelby K. Kimzey (Mother) divorced in October 2017, when they both lived in Laramie County, Wyoming. They stipulated Mother would have primary custody of their two children and Father would have reasonable visitation. They also agreed Father would pay child support in an amount less than the child support guidelines provided. In Spring 2018, Mother decided to move with the children to Arizona and Father filed a petition to modify custody. The district court appointed a guardian ad litem (GAL) to represent the best interests of the children. After a trial, the district court increased Father's child support obligation, denied his petition to modify custody, and refused to modify visitation.

[¶2] Father contests the district court's rulings on all issues. The GAL filed a brief in support of Father's position regarding custody of the children. The GAL also challenges how the district court enforced the time limits at the trial and the court's failure to make findings regarding the GAL's recommendation. We conclude the district court did not abuse its discretion by denying Father's petition to modify custody; however, it did abuse its discretion by increasing child support and refusing to modify visitation. The district court did not err in its treatment of the GAL.

[¶3] We affirm in part, and reverse and remand in part.

ISSUES

[¶4] The issues on appeal are:

1. Did the district court abuse its discretion by modifying child support?

2. Did the district court abuse its discretion by concluding modification of custody was not in the children's best interests?

3. Did the district court abuse its discretion by refusing to modify visitation?

4. Did the district court err by cutting short the GAL's closing argument and/or by failing to make findings regarding the GAL's recommendation?

FACTS

[¶5] Mother and Father married in 2011 and had two children, TKK (born in 2012) and KBK (born in 2014). Mother filed for divorce in September 2017, and the parties entered into a stipulated divorce decree a month later, in October 2017. Under the terms of the stipulated decree, Mother received primary custody of the children, subject to Father's right to visitation every other weekend on a year-round basis or, when Father had "weekend commitments i.e., coaching," he was "entitled to exercise visitation overnight on Wednesday in lieu of weekend visitation." Holiday visitation generally followed the Standard Visitation Order, but the parties agreed to split "the day" of major holidays, including Thanksgiving Day, Christmas Day and the children's birthdays. Each party was also entitled to two full weeks of uninterrupted time with the children during the summer. With regard to child support, the parties stipulated to their respective net incomes and agreed Father would pay $1,000 per month, which was a downward deviation from the presumptive monthly amount of $2,923 under the child support guidelines. Mother also received $2,000 per month in alimony under the decree.

[¶6] For the first several months after the divorce, the parties lived in Laramie County. The oldest child, TKK, attended kindergarten in Carpenter, Wyoming. He received services at school pursuant to an Individualized Educational Program (IEP). TKK previously had been diagnosed with Autism Spectrum Disorder by the Neuro Development Center of Colorado. However, by the end of his kindergarten year, his diagnosis had been changed to Attention Deficit Hyperactivity Disorder (ADHD) with a speech/language disorder.

[¶7] TKK struggled with core academic subjects, fine motor skills, speech, and language. His classroom teacher reported TKK did not respond well to change in his routine or schedule. He frequently left the classroom if he did not like what the class was doing. The teacher also said he was "rough" and "aggressive" with his classmates. TKK received in-school suspension in March 2018 for hitting a child and for choking another student by dragging him or her by the hood. The teacher stated that, on occasion, TKK's behavioral problems were significant. She noted, however, that he made a great deal of progress, both academically and behaviorally, by the end of his kindergarten year in Carpenter.

[¶8] KBK also had some behavioral issues at daycare and preschool while living in Laramie County. On November 7, 2017, he was "kicked out" of daycare in Pine Bluffs for the day because of his poor behavior. After that, Father kept the child with him during the day until Mother enrolled him in the Montessori School of Cheyenne. KBK attended the Montessori School from January through May 2018. According to the director of the school, KBK would occasionally be brought into the office for bad behavior and Mother would be called "to either come talk to him or to come get him." On one occasion, KBK punched another child in the face and he was sent home.

[¶9] Between November 2017 and July 2018, Father had more contact with the children than the decree provided. During each of those months, Father saw the kids from 11 to 21 days. He often took TKK to and from school and, when KBK was not in school, he took him to work during the day. Sometime in Spring 2018, Father learned Mother was contemplating moving out of state with the children, prompting him to file a petition to modify the decree to give him primary custody. He also requested child support be addressed in accordance with any change of custody.

[¶10] Mother moved to Arizona with the children in July 2018. TKK began school at a charter school close to their new home. The parties made the joint decision to have him repeat kindergarten. TKK received special education services at the charter school pursuant to an IEP, but less overall minutes of services than he had received in Carpenter. He had some behavioral problems at school, resulting in several conduct referrals and disciplinary actions. KBK was removed from daycare in Arizona because of his poor behavior.

[¶11] The district court held a two-day trial on Father's modification petition. Mother and Father each received five hours and the GAL received two hours to present their cases. The parties testified about their relationships with the children and the children's experiences in Wyoming and in Arizona. Both parties presented expert testimony about their respective incomes. The GAL cross-examined witnesses and recommended the district court award primary custody to Father.

[¶12] Later, the district court verbally announced its ruling. It concluded there was a material change of circumstances to reopen the custody portion of the decree due to Mother's relocation and the conditions surrounding it. However, it decided it was in the children's best interests for Mother to retain primary custody. The court ruled that, even though the children were being harmed by the current visitation order, there was not enough information in the record to modify it. It also concluded there was a material change of circumstances regarding child support and increased Father's obligation from $1,000 to $9,980 per month. Father appealed, and the GAL filed a brief in his support.

DISCUSSION

1. Child Support

[¶13] "In general, determinations concerning child support are left to the district court's sound discretion." Bagley v. Bagley, 2013 WY 126, ¶ 6, 311 P.3d 141, 143 (Wyo. 2013). Therefore, we review the district court's order on child support for an abuse of discretion. Id. ; Stevens v. Stevens, 2014 WY 23, ¶ 8, 318 P.3d 802, 805-06 (Wyo. 2014) (quoting Bingham v. Bingham, 2007 WY 145, ¶ 10, 167 P.3d 14, 17-18 (Wyo. 2007) ). "A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances." Stevens, ¶ 8, 318 P.3d at 806 (quoting Bingham, ¶ 10, 167 P.3d at 17-18 ) (some quotation marks and citations omitted). We review de novo any questions of law regarding child support determinations. See Walker v. Walker, 2013 WY 132, ¶ 44, 311 P.3d 170, 179 (Wyo. 2013) (citing Swaney v. Dep't of Family Servs., 2011 WY 105, ¶ 3, 256 P.3d 514, 515 (Wyo. 2011) ).

[¶14] As we stated above, the stipulated decree entered in October 2017 required Father to pay $1,000 per month in child support, which was a downward deviation from the presumptive child support under the guidelines. In arriving at the stipulated support amount, the parties agreed on their net incomes and that, based upon those figures, Father's presumptive child support would be $2,923 per month. In addition, Father "agreed to be solely responsible for the children's medical, dental, educational, and extracurricular activities."

[¶15] Father's petition for modification requested that child support be calculated under the child support guidelines "in accordance with any [custody] modification." Mother did not request modification of Father's child support obligation. As we explain in detail below, the district court decided not to change custody (and we affirm that decision). However, it concluded modification of Father's child support obligation was warranted.

[¶16] Generally, a final judgment binds the parties and res judicata prevents re-litigation of matters decided therein. See, e.g. , Ready v. Ready, 2003 WY 121, ¶ 11, 76 P.3d 836, 839 (Wyo. 2003) ; Smith v. Smith, 895 P.2d 37, 41 (Wyo. 1995) ; Pauling v. Pauling, 837 P.2d 1073, 1075-76 (Wyo. 1992). A final judgment regarding child support may, however, be reopened under § 20-2-311(a):

(a) Any party ... may petition for a review and

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