Summary 2006 WY 68

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Case Name: TW v. BM

Citation: 2006 WY 68

Docket Number: C-05-8

Appeal from the District Court of Park County, Honorable Hunter Patrick, Judge

Representing Appellant (Respondent): Gibson Sean Benham of Casper, Wyoming

Representing Appellee (Respondent): Kyle R. Smith of Worrall, Greear & Smith, Worland, Wyoming

Date of Decision: June 1, 2006

Issues: Whether the trial court abused its discretion by ordering modification of custody bases on relocations by Appellant mother is light of her constitutional right to travel.

Holdings: Although Wyo. Stat. § 20-2-204(c) prohibits consideration of pre-divorce evidence when there is a determination of whether there has been a substantial change in circumstances but it does not limit the court's consideration of such information when making a determination of the children's best interest.

Relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order. That precept is also applicable to any factors that are derivative of relocation. However, this does not preclude the district court is from considering the effects of relocation on the children so long as there is some other circumstance that is sufficiently deleterious to the welfare of the children that by itself would serve as a substantial and material change in circumstances even in the absence of a relocation. In the present action, the district court did not make any specific written findings that mother's relocations had deleterious effects on son. At the same time, there is nothing in the district court's findings that suggests the district court relied on mother's relocations, standing alone, to justify the change in custody. To the extent that the district court's findings of fact address mother's relocations, the district court found that mother's instability was proven through her testimony regarding the many residential and educational changes regarding son. Thus, it is apparent that the district court focused on the instability such relocations created, not on the relocations themselves.

It would be helpful to review if the district court had provided more detailed findings of fact regarding the substantial change in circumstances but there is nothing in the findings of fact that suggests the district court, as Appellant claims, relied solely on mother's relocations to modify custody. The failure to provide a transcript does not necessarily require dismissal of an appeal, but the review is restricted to those allegations of error not requiring inspection of the transcript. Lacking a transcript, or a substitute for the transcript, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Without a transcript to review, the district court's finding that father established a substantial change in circumstances must be accepted. In addition, there are other findings, independent of Appellant's relocations that support the district court's determination that there was a substantial change in circumstances.

In a one-paragraph argument, Appellant claims it is in the child's best interests that primary physical custody remain with her. She asserts that she is the primary caregiver for son. While acknowledging her multiple relocations, Appellant contends that the relocations have been in an effort to improve her economic condition. She states that she is now able to provide a financially stable environment. She also asserts that custody should not be modified simply because father is inconvenienced in exercising visitation. Appellant's argument depends upon a review of the evidence presented at the district court hearing. Without a transcript from that hearing, the Court is unable to ascertain whether or not Appellant's assertions are accurate. Instead, it must again accept the district court's findings on this issue.

On this record, it cannot be concluded that the district court committed any error in finding a substantial change in circumstances.

Affirmed.

C.J. Hill delivered the opinion for the court.