               IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 24

                                                          OCTOBER TERM, A.D. 2014

                                                                  February 19, 2015

SHERRI LYNN LORAN,

Appellant
(Plaintiff),

v.                                                   S-14-0181

JUSTIN RAY LORAN,

Appellee
(Defendant).


                      Appeal from the District Court of Park County
                        The Honorable Steven R. Cranfill, Judge


Representing Appellant:
      Thomas P. Keegan of Keegan & Winslow, P.C., Cody, Wyoming

Representing Appellee:
      John P. Worrall of Worrall and Greear, P.C., Worland, Wyoming


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Sherri Lynn Loran (Mother) appeals the district court’s denial of her motion for
relief from an order on child custody, visitation and support. The order awarded her
primary custody, but granted Justin Loran (Father) liberal visitation and allowed him to
pay joint presumptive support pursuant to Wyo. Stat. Ann. § 20-2-304(c). Mother claims
that the visitation awarded to Father is a de facto shared custody arrangement, and that
the district court did not make the findings necessary to support such an arrangement or
an award of joint support.

[¶2]   We affirm in part, reverse in part, and remand for further proceedings.

                                         ISSUES

[¶3] 1.       Did the district court abuse its discretion when it refused to set aside
provisions of an order that expressly found shared custody inappropriate but nonetheless
awarded Father liberal visitation resulting in the minor children spending 41.6% of the
year with him in 2014?

      2.      Did the district court abuse its discretion when it awarded joint presumptive
child support without determining that both parents contribute substantially to the
expenses of the children as required by Wyo. Stat. Ann. § 20-2-304(c)?

        3.    Does the order awarding Father visitation contain a clerical mistake that the
district court should have corrected if it had acted within the proper scope of its
discretion?

                                         FACTS

[¶4] The parties married in 2002, but after a decade in which they had four children
together, Mother filed for divorce in 2012. The district court held a divorce trial in
October 2013, and promptly entered a divorce decree which dissolved the bonds of
matrimony but reserved the issues of child custody, support, visitation, and division of
marital property until a written decision could be entered.

[¶5] In December 2013, the district court issued a decision letter which resolved all but
one of the reserved issues, and shortly thereafter entered an order incorporating and
implementing the rulings contained in the decision letter. After a thorough review of the
evidence and application of relevant factors, it awarded primary custody to Mother and
rejected Father’s request for shared custody, explaining that:

                     The Court finds that shared custody is not an effective
              solution for this case. The lack of effective communication


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             between the parties, as well as other factors, strongly weigh
             against it. The Court finds that [Mother] should have primary
             custody with reasonable visitation by the [Father].

[¶6] Father was awarded liberal visitation, which allowed the children to stay with him
all but the last weekend of each month, on every Wednesday night, during defined time
periods on specific alternating holidays, and two weeks of uninterrupted summer
vacation.

[¶7] The court indicated in its decision letter that it was unable to calculate child
support because Father had not submitted an updated financial affidavit as he had been
ordered to do, and it directed him to file that affidavit so that the calculation could be
made and another order awarding child support could be entered. When Father’s counsel
tallied the visitation up for purposes of making a support calculation, he determined that
Father would have parenting time of 152 out of 365 days in 2014. By his calculation, this
would be 41.6% of the year.

[¶8] Consequently, Father’s counsel wrote a letter to the district court explaining that
his client would qualify to pay joint presumptive support pursuant to Wyo. Stat. Ann. §
20-2-304(c). Father would pay less support if he was entitled to joint presumptive
support than if he was not and instead had to pay support based on the regular child
support tables.

[¶9] In January of 2014, Mother filed a motion seeking relief from the order awarding
visitation under Wyoming Rules of Civil Procedure 60(a) and (b)(1). She argued that
there must have been a mistake, clerical or otherwise, because the court made it very
clear in its order that shared custody was not appropriate, but nonetheless awarded Father
visitation of more than 40% in 2014. Mother argued that this was a de facto shared
custody arrangement inconsistent with the finding.

[¶10] After a hearing in March 2014, the district court denied Mother’s Rule 60 motion.
It issued a decision letter and an order on the matter (Rule 60 Order) as well as on child
support, holding that no change to the order awarding visitation was necessary. That
order states:

             1. The [district court] wrote what it intended to be the
             visitation schedule in its . . . Decision Letter and will not
             change that schedule.

             2. Child support is what it is and is a separate issue from the
             custody issue. It is clearly dictated by Statute.




                                             2
                3. In the event that visitation would fall below 40% overnight
                in 2015, the parties may come to the [district court] for a
                recalculation at that time.

As to child support, the district court found that because Father would have overnight
visits for 152 nights in 2014 (41.6% of the year), he would be required to pay joint
presumptive support in the amount of $199.09 per month as provided in § 20-2-304(c).1

[¶11] Mother timely perfected this appeal from the district court’s order denying relief
under Rule 60.

                                           DISCUSSION

Visitation Amounting to Shared Physical Custody

[¶12] Mother argues that the district court erred in denying her motion for relief under
Rule 60(b)(1). She continues to argue here, as she did in the district court, that despite
expressly rejecting shared custody, the district court awarded Father de facto shared
physical custody, which she contends must be a mistake. We disagree.

[¶13] Rule 60(b)(1) provides as follows:

                On motion, and upon such terms as are just, the court may
                relieve a party or a party’s legal representative from a final
                judgment, order, or proceeding for the following reasons: (1)
                mistake, inadvertence, surprise, or excusable neglect . . . .

W.R.C.P. 60(b)(1).

[¶14] Trial courts are vested with discretion to grant or deny a motion for relief from an
order or judgment under Rule 60(b)(1), and our review is limited to determining whether
that discretion was abused. Largent v. Largent, 2008 WY 106, ¶ 13, 192 P.3d 130, 134
(Wyo. 2008); Vanasse v. Ramsay, 847 P.2d 993, 996 (Wyo. 1993). An abuse of
discretion occurs when the district court exceeds the bounds of reason or commits an
error of law, with the ultimate standard being whether it could reasonably have concluded
as it did. Largent, ¶ 13, 192 P.3d at 135. Mother bears the burden of showing that the

1
  We take this opportunity to observe that all issues in a divorce should be resolved in a single decree.
There may be extraordinary circumstances, such as when a spouse is terminally ill, that might justify
granting the divorce and sorting out other issues later, but those cases would be rare. Here the district
court did not make determinations regarding child custody, visitation and support in the divorce decree,
which required further orders that now create a procedurally complex situation for the parties and this
Court. Granting a divorce without resolving all of the issues also makes compiling accurate statistical
information impossible, because it creates a false impression that a case is finished when it is not.


                                                    3
district court abused its discretion and was clearly wrong in not granting relief under
W.R.C.P. 60(b). Absent such a showing, the ruling denying relief will be upheld. Id.

[¶15] A district court has specific statutory authority to fashion a custody plan to
“include any combination of joint, shared or sole custody” which it finds to be in the best
interests of the children. Wyo. Stat. Ann. § 20-2-201(d) (LexisNexis 2013).2
Unfortunately, the term “shared physical custody” is not defined under Title 20 of the
Wyoming statutes, which governs domestic relations including child custody and
visitation. In fact, Article 2 of Title 20, which applies to custody and visitation decisions,
defines none of the terms in the section just cited.

[¶16] However, this Court has examined shared physical custody scenarios and has
rendered decisions that provide helpful guidance. In Buttle v. Buttle, we reversed a
district court that awarded shared physical custody, with each party having 50% of the
time with the children. 2008 WY 135, ¶¶ 29-44, 196 P.3d 174, 181-84 (Wyo. 2008). In
JS v. MB, we affirmed when the custody arrangement was challenged as a de facto award
of shared physical custody despite the fact that the father had been awarded what the
district court described as primary custody. 2010 WY 114, ¶¶ 6-18, 237 P.3d 974, 975-
78 (Wyo. 2010). We noted that “[a]lthough Father does technically hold primary custody
of the parties’ child, the schedule set by the district court does amount to sharing the time
of the child almost equally” by alternating weeks that the child spends with each parent.
Id., ¶ 8, 237 P.3d at 976. However, we determined that the district court’s findings
adequately supported its custody decision.

[¶17] More recently, in Davidson v. Carrillo, we concluded that the custody
arrangement ordered by the district court did not result in de facto shared custody. 2014
WY 65, ¶ 8, 325 P.3d 444, 446 (Wyo. 2014). There the father argued that, despite
awarding him primary custody, the district court abused its discretion by granting the
mother liberal visitation amounting to shared physical custody. Id. We explained:



2
  Shared custody is not favored, and hence a district court is required to provide an explanation and place
its findings on the record when it orders such a custody arrangement. We have explained:

                We have repeatedly said that divided or shared custody is not favored by
                this Court absent good reason therefore. We have explained that stability
                in a child’s environment is of utmost importance to the child’s well-
                being, while a measure of instability is inherent in joint custody
                arrangements. We have emphasized that the success of a joint or shared
                custody arrangement hinges on the extent to which the parents are able to
                communicate and agree on the matters relevant to the children’s welfare.

Testerman v. Testerman, 2008 WY 112, ¶ 15, 193 P.3d 1141, 1145 (Wyo. 2008) (citations and quotation
marks omitted).


                                                     4
                Ultimately, the court concluded that “Continuing to reside
                with the Father while having liberal visitation with the
                Mother will allow the child to maintain and strengthen the
                relationship she has with both of her parents.” Contrary to
                Father’s claims, the district court did not order a “shared” or
                “divided” custody arrangement. Further, we are not persuaded
                by Father’s argument that the district court’s order resulted in
                de facto shared custody. Father does not provide any support
                either for his definition of “parenting time,” or for the
                proposition that the concept of “parenting time” is used as a
                criterion for determining whether a custody arrangement
                results in “shared” or “divided” custody. In any event, under
                the district court’s order, Mother and Father do not share
                equal physical custody of AD. Under the custody order,
                Mother has visitation with AD on three weekends per month,
                for approximately 48 hours, and on two weekdays per week.
                Mother’s weekday visitation is approximately two-and-a-half
                hours. Based on the fact that Mother’s visitation is limited to
                these specific times, we cannot conclude that the custody
                arrangement ordered by the district court results in de facto
                shared custody.

Id., ¶ 9, 325 P.3d at 447-48 (footnotes omitted); see Testerman, ¶¶ 14-15, 193 P.3d at
1145 (contemplating whether shared physical custody amounts to substantial equal time
between parents).3

[¶18] Consistent with these decisions, which have not been legislatively overruled, we
conclude that shared physical custody means that the time allotted each parent must be

3
  See also Zupan v. Zupan, 2010 WY 59, ¶¶ 17-27, 230 P.3d 329, 334-37 (Wyo. 2010) (shared physical
custody evenly split between parents; alternate residential custody of the children on an annual basis);
Roemmich v. Roemmich, 2010 WY 115, ¶¶ 8-15, 238 P.3d 89, 92-94 (Wyo. 2010) (shared custody
amounted to each parent having physical custody of the child equally for one week and visitation the
following week); Parris v. Parris, 2009 WY 44, ¶¶ 16-21, 204 P.3d 298, 303-05 (Wyo. 2009) (reversing
shared physical custody arrangement where time with the child was shared equally; that is, the child
resided with each parent on alternating weeks); Buttle, ¶¶ 29-44, 196 P.3d at 181-84 (finding district court
abused its discretion in entering a shared custody order giving each parent equal time with the child,
meaning each parent would have custody 50% of the time); Eickbush v. Eickbush, 2007 WY 179, ¶¶ 10-
17, 171 P.3d 509, 511-14 (Wyo. 2007) (court abused discretion by ordering a shared physical custody
arrangement where each parent had equal time with child, alternating weekly); In re KRA, 2004 WY 18,
85 P.3d 432 (Wyo. 2004) (shared physical custody equated to each parent having child in alternating
weeks); Drake v. McCulloh, 2002 WY 50, ¶¶ 7-22, 43 P.3d 578, 582-85 (Wyo. 2002) (shared custody of
the child rotated equally on five-day schedule); Reavis v. Reavis, 955 P.2d 428, 432-34 (Wyo. 1998)
(shared physical custody arrangement where each parent had equal time was not in the best interest of
child).


                                                      5
approximately 50% in any given year. This view is consistent with other alternative
custody arrangements and the overall design of Article 2, Title 20. See, e.g., Testerman,
¶ 13, 193 P.3d at 1145 (“Wyoming statutes do not define ‘primary custody,’ but we have
suggested a meaning by saying that ‘awarding custody to one parent fixes that parent as
the primary nurturer of the child and the one with whom the child shall reside.’”). 41.6%
is not the substantial equivalent of 50%. However, arrangements which involve more
time may cross a line that is not yet clearly defined, and so district judges should
carefully consider whether the parenting plans they contemplate award liberal visitation
or whether they are in reality de facto shared custody arrangements.

[¶19] Mother contends that Article 3, Title 20, which governs child support, statutorily
defines shared custody in § 20-2-304(c). As discussed more fully below, that statute
provides for an award of joint presumptive child support when each parent keeps the
children overnight more than 40% of the time, if both parents contribute substantially to
the expenses of the children in addition to paying child support. She argues that the
legislature, by adjusting child support downward when one parent spends 40% or more of
the available time with the child, has defined shared physical custody.

[¶20] While child custody and support go hand-in-hand, see Rose v. Rose, 576 P.2d 458,
460 (Wyo. 1978), we are not convinced that the legislature intended the requirements for
joint presumptive support to define shared physical custody.4 See Rodriguez v. Casey,
2002 WY 111, ¶ 20, 50 P.3d 323, 329 (Wyo. 2002) (“[O]ur job is to give effect to the
most likely, most reasonable, interpretation of the statute, given its design and purpose.”).
The legislature did not choose to link the statute referring to “shared physical custody” to
that providing for joint presumptive child support, and did not change the statutory
scheme after the cases cited above were decided.

[¶21] We therefore conclude that the child custody and visitation arrangement ordered
by the district court did not result in de facto shared physical custody between Mother
and Father. Accordingly, the district court did not abuse its discretion in denying this
aspect of Mother’s Rule 60(b)(1) motion.

Requirements for Joint Presumptive Support under § 20-2-304(c)

[¶22] In her second issue, Mother contends, inter alia, that the district court erred by
ordering joint presumptive child support without determining that both parties contribute
substantially to the children’s expenses as required by statute. She contends that Father


4
 We note that this Court has, perhaps inadvertently, used the term “shared physical custody” to refer to §
20-2-304(c) and its predecessor statutes regarding joint presumptive child support. Jensen v. Milatzo-
Jensen, 2013 WY 27, ¶ 39, 297 P.3d 768, 780 (Wyo. 2013); Fountain v. Mitros, 968 P.2d 934, 935 (Wyo.
1998); Cranston v. Cranston, 879 P.2d 345, 350 (Wyo. 1994). With this decision, we hope to clear up
any confusion.


                                                     6
does not, and that the court had to consider and decide this issue because it was required
to do so by statute. We agree. The joint presumptive support statute provides as follows:

              When each parent keeps the children overnight for more than
              forty percent (40%) of the year and both parents contribute
              substantially to the expenses of the children in addition to
              the payment of child support, a joint presumptive support
              obligation shall be determined by use of the tables.

Wyo. Stat. Ann. § 20-2-304(c) (emphasis added).

[¶23] We note that this is not truly a Rule 60(b) issue, because the district court did not
order child support until it decided the Rule 60 motion. This is therefore a direct appeal
of that issue. However, the standard of review is the same. See Stevens v. Stevens, 2014
WY 23, ¶ 8, 318 P.3d 802, 805 (Wyo. 2014) (child support issues reviewed for abuse of
discretion).

[¶24] The record confirms that the district court’s physical custody and visitation
arrangement resulted in Father having the children overnight 152 times in 2014, which is
41.6% of the year. Mother had the children for 213 nights, which is 58.4% of the year.
However, § 304(c) comes into play only if both parents contribute substantially to the
children’s expenses in addition to paying child support. See Jensen, ¶ 26, 297 P.3d at
776 (152 days out of year equates to more than 40%, thus falling into the parameters of §
304(c)). The record does not indicate that the district court considered, much less
determined, whether the parties, and particularly Father, contributed substantially to the
expenses of the children over and above the child support he is required to pay. Applying
the usual abuse of discretion standard of review for child support issues, see Stevens, ¶ 8,
318 P.3d at 805, we find that the district court abused its discretion because it did not
comply with the requirements of § 20-2-304(c), which was an error of law.

[¶25] The parties dispute whether the evidence does or does not support a conclusion
that Father substantially contributes to the children’s expenses, which is a question of fact
requiring, inter alia, an evaluation of the credibility of the witnesses. Therefore, whether
the evidence supports a determination that both parents contribute substantially to the
expenses of the children in addition to paying child support is a decision the district court
must initially make. See Lee v. Lee, 2013 WY 76, ¶¶ 12-16, 303 P.3d 1128, 1133-34
(Wyo. 2013) (examining the substantial contribution requirement of § 304(c)). We will
therefore reverse the award of joint presumptive child support and remand for the district
court to make that determination.

Clerical Error




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[¶26] In her final issue, Mother urges us to find that the custody and visitation order
contained a clerical error that the district court should have corrected pursuant to
W.R.C.P. 60(a). Rule 60(a) provides as follows:

              Clerical mistakes in judgments, orders or other parts of the
              record and errors therein arising from oversight or omission
              may be corrected by the court at any time of its own initiative
              or on the motion of any party and after such notice, if any, as
              the court orders. During the pendency of an appeal, such
              mistakes may be so corrected before the appeal is docketed in
              the Supreme Court, and thereafter while the appeal is pending
              may be so corrected with leave of the Supreme Court.

W.R.C.P. 60(a).

[¶27] Our standard of review for a district court’s decision under Rule 60(a) is firmly
established:

              When reviewing a district court’s application of Rule 60(a),
              this Court employs a two-part process. The first question we
              must answer is whether the correction or clarification of a
              judgment relates to a clerical mistake. If so, we then review
              the district court’s order to ascertain whether it clarified or
              modified the original judgment. Both questions are questions
              of law, which we review de novo.

Tafoya v. Tafoya, 2013 WY 121, ¶ 7, 309 P.3d 1236, 1238 (Wyo. 2013) (citations and
quotation marks omitted).

[¶28] Mother complains that the clerical error is a result of the district court not
independently calculating how many nights Father would have visitation, and that it
simply adopted his calculation that he would have the children 152 nights in 2014. She
contends that Father does not have the children for more than 40% of the nights in any
given year. She also asserts that the district court’s “failure to take the nights awarded
into account, while making a determination that shared custody was not appropriate, was
a ‘clerical error.’”

[¶29] Based upon our examination supra, see ¶ 24, the record does indeed confirm that
Father would have had the children overnight for 41.6% in 2014. There was no mistake
in that calculation, clerical or otherwise. The record is also clear that the district court
intended to order the visitation it did, and that doing so cannot be considered a clerical
error subject to correction. Consequently, we need not address the two questions posed



                                              8
when reviewing a Rule 60(a) issue, and we can dispose of Mother’s final contention
without further analysis.

                                      CONCLUSION

[¶30] Shared physical custody is an arrangement in which a child spends substantially
equal time with each parent in any given year. The amount of visitation awarded Father
is not substantially equal to the time Mother will have the children, and it is not therefore
de facto shared physical custody. The district court did not abuse its discretion in
awarding Mother primary physical custody and awarding Father liberal visitation of 152
nights in 2014. Furthermore, the record confirms that the number of nights awarded to
Father for overnight visitation in the order in question was what the district court
intended, and that it was not a clerical mistake.

[¶31] Concerning child support, because Father and Mother each had the children
overnight for more than 40% of the time in 2014, the district court abused its discretion in
awarding joint presumptive support without making a determination that both parents
contribute substantially to the expenses of the children in addition to paying child
support, as required under § 20-2-304(c). If Father’s overnight time with the children
drops below the 40% threshold due to the school and holiday calendar in future years, the
parties can ask the district court to revisit the issue. However, we observe that if a district
court awards visitation that teeters on the brink of the “more than 40%” threshold from
year to year, it should strongly consider a visitation schedule that does not force the
parties to ask the Court to revisit the issue annually because of the expense involved.

[¶32] Affirmed in part, reversed in part, and remanded for further proceedings consistent
with opinion.




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