P. Craig Silva, J. Williams, Porter, Day & Neville P.C.
Darla D. Kappen v. Jim R. Kappen
S-14-0092
January 7, 2015
This case is a custody modification case where the opinion was decided 3-2 with Justices Burke and Davis dissenting.
The father, Jim R. Kappen, petitioned the court for modification of primary custody of the couple’s youngest daughter, GK, be placed with him. The mother, Darla D. Kappen, opposed the modification. The District Court found for the father. The mother appealed, and the Wyoming Supreme Court reversed.
The District Court held: (1) the mother had been terminated from her long term employment for stealing a co-worker’s phone; (2) the theft resulted in a misdemeanor conviction following a jury trial; and (3) the mother moved from Lingle, Wyoming, to Denver, Colorado. These three factors, for the purpose of this summary, are grossly truncated; nevertheless, this was the primary reason the District Court modified the custody arrangement giving the father primary custody of the minor child.
Wyoming Supreme Court Justices Fox, Hill, and Kite reversed indicating those three factors were not shown to have any impact on the best interest or welfare of the child; consequently, Mr. Kappen failed to meet his burden of showing a material change in circumstances had occurred. Justice Davis took issue with the majority opinion opining the standard of review is abuse of discretion in these cases and the majority is re-weighing the facts in a light most favorable to the mother, and greater deference here should have been given to the District Court decision. Justice Davis reviewed the record below finding the mother had conceded a material change in circumstances had occurred as a result of her behavior and that concession should have carried the day as a judicial admission. According to Justice Davis, “[t]he district judge spared no effort to address the issues the parties raised; he held appropriate hearings and issued a thorough decision, and would undoubtedly have addressed the material change question in more detail if it had truly been an issue.”
State of Wyoming v. Dustin Deen
S-14-0079
January 8, 2015
In the afternoon of July 19, 2013, the Campbell County Sheriff's Department stopped a vehicle and found 44.7 grams of marijuana in the vehicle. The driver indicated the marijuana had been purchased from “Dustin” who resided at Peaceful Valley Drive. The Deputy obtained a warrant on the residence of Dustin Deen based on the information provided by the driver but did not serve the warrant until 18 minutes after 10:00 p.m.
W.R.Cr.P. 41(c) provides, in relevant part, “. . . warrant shall direct that it be served between 6 a.m. and 10 p.m., unless the issuing authority, by appropriate provision in the warrant, and reasonable cause shown, authorizes its execution at other times.” It was undisputed this warrant was served in violation of the rule. The District Court suppressed the evidence. The Wyoming Supreme Court reversed.
According to the Wyoming Supreme Court, suppression should not occur in this context under this rule unless there is prejudice to the defendant or deliberate disregard of the rule. Factually, the execution of this warrant was not prejudicial. It was served only a short time after 10:00 p.m., and everyone in the home was up and awake when law enforcement arrived. Moreover, there did not appear from the record an intent to violate the rule in that law enforcement was marginally aware it was past 10:00 p.m. when the warrant was served.
In re: Wrongful death action of Jerome C. Knight by and through his wrongful death personal representative, Garret Knight v. The Estate of Victor McCoy and M&M Welding Services, LLC
S-14-0099
January 14, 2015
Jerome C. Knight and Victor McCoy were traveling from a work site when Victor McCoy, the driver of the vehicle, and Jerome C. Knight, as passenger, were in a fatal automobile accident with a semi-trailer. Toxicology tests post-accident revealed McCoy was under the influence of methamphetamine. Suit was brought by the Personal Representative of Mr. Knight’s Estate against the Estate of Victor McCoy (hereinafter McCoy) and M&M Welding Services, LLC (hereinafter M&M).
A motion for summary judgment was fled by McCoy and M&M based on the Workers’...
