               IN THE SUPREME COURT, STATE OF WYOMING

                                       2015 WY 125

                                                            APRIL TERM, A.D. 2015

                                                               September 16, 2015

CARRERA KYLEE COOK f/k/a
CARRERA KYLEE MOORE,

Appellant
(Defendant),
                                                     S-15-0057
v.

AUSTIN LEE MOORE,

Appellee
(Plaintiff).

                     Appeal from the District Court of Uinta County
                        The Honorable Timothy C. Day, Judge

Representing Appellant:
      Kenneth S. Cohen of Cohen Law Office, P.C., Jackson, Wyoming.

Representing Appellee:
      Ammon E. Francom and John A. Thomas of John A. Thomas Law Office,
      Evanston, Wyoming.

Guardian Ad Litem:
     No appearance.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
FOX, Justice.

[¶1] After learning of Mother’s imminent relocation nearly 1,400 miles away, Father,
Austin Lee Moore, petitioned for custody modification and to transfer primary custody of
the parties’ child, TM, to him. Mother, Carrera Kylee Cook (f/k/a Carrera Kylee Moore),
opposed the modification, and after a trial on the merits, the district court found that
Mother’s move constituted a material change in circumstances, and that it was in the best
interests of TM for Father to become his primary custodian. Mother appealed and we
affirm.

                                          ISSUE

[¶2] Was there a material change in circumstances warranting the reopening of the
existing custody order?

                                         FACTS

[¶3] The parties were married April 8, 2011, and divorced on November 13, 2012, in
Evanston, Wyoming. One child resulted from the marriage, TM, born in 2011. The
original custody order awarded the parties joint legal custody of TM, with Mother having
primary physical custody. Father was given liberal visitation, which consisted of every
other weekend, alternating holidays, and a graduated summer visitation schedule. Father
also had the option of extending one of his weekend visits every other month to begin
Wednesday and end Sunday. Father regularly exercised his visitation with TM.

[¶4] Soon after the parties’ divorce, Father moved from the marital residence to his
parents’ home in Evanston, Wyoming, and Mother moved with TM to Layton, Utah, to
reside with her parents. Layton is approximately 75 miles from Evanston. The proximity
of the parties’ residences made the exercise of Father’s visitation relatively simple.

[¶5] On October 25, 2013, Mother filed a motion for order to show cause, alleging that
Father had denied her visitation when he had custody of TM during the summer, in
violation of the custody order. Father responded, denying that he had violated the
custody order, and requesting that the district court modify his child support and some of
the visitation provisions. The parties attempted to resolve their issues by meeting with
each other and their respective attorneys. It was at this meeting that Father learned
Mother was planning to marry and move with TM to live with her new husband in
College Station, Texas, nearly 1,400 miles from Evanston. Father then amended his
petition to modify, requesting that the district court grant him primary physical custody of
TM. Mother opposed the modification, arguing that there had not been a material change
in circumstances warranting the reopening of the original custody order, and, in the
alternative, that if there was a material change, it would be in TM’s best interests for her
to retain primary physical custody.


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[¶6] A trial was held on May 7, 2014, and the parties submitted closing oral arguments
by telephone on June 18, 2014. The district court found that Mother’s relocation
constituted a material change in circumstances, and that it was in TM’s best interests for
Father to be awarded primary physical custody. Mother timely filed her notice of appeal.

                               STANDARD OF REVIEW

[¶7]                Decisions affecting child custody rest within the sound
             discretion of the district court. CLH v. MMJ (In re TLJ),
             2006 WY 28, ¶ 6, 129 P.3d 874, 876 (Wyo. 2006). We will
             not disturb the district court’s findings “absent procedural
             error or a clear abuse of discretion.” Id. (citing Selvey v.
             Selvey, 2004 WY 166, ¶ 15, 102 P.3d 210, 214 (Wyo. 2004)).
             “Judicial discretion is a composite of many things, among
             which are conclusions drawn from objective criteria; it means
             exercising sound judgment with regard to what is right under
             the circumstances and without doing so arbitrarily and
             capriciously.” Id. (quoting Fergusson v. Fergusson, 2002
             WY 66, ¶ 9, 45 P.3d 641, 644 (Wyo. 2002)). Our primary
             goal in reviewing for an abuse of discretion is determining
             whether the district court’s decision is reasonable. Id. (citing
             Selvey, 2004 WY 166, ¶ 15, 102 P.3d at 214). “We view the
             evidence in the light most favorable to the district court’s
             determination, affording to the prevailing party every
             favorable inference and omitting from our consideration
             conflicting evidence.” Id. (citing Selvey, 2004 WY 166, ¶ 15,
             102 P.3d at 214).

                     In custody modification proceedings, the party seeking
             to modify custody carries the burden of establishing that a
             material change in circumstances affecting the child’s welfare
             has occurred subsequent to the entry of the initial decree, and
             that the modification would be in the best interests of the
             child affected. Jackson v. Jackson, 2004 WY 99, ¶ 7, 96 P.3d
             21, 24 (Wyo. 2004). “A district court’s findings concerning a
             material change in circumstances is principally a factual
             determination to which we accord great deference.” Morris v.
             Morris, 2007 WY 174, ¶ 7, 170 P.3d 86, 89 (Wyo. 2007)
             (quoting In re TLJ, 2006 WY 28, ¶ 11, 129 P.3d at 877).
             “Our task is simply to determine whether, examining the
             record in the light most favorable to the successful party, the
             district court could have reasonably concluded as it did.”


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                Walker v. Walker, 2013 WY 132, ¶ 21, 311 P.3d 170, 175
                (Wyo. 2013) (quoting Hanson v. Belveal, 2012 WY 98, ¶ 13,
                280 P.3d 1186, 1192 (Wyo. 2012)).

Kappen v. Kappen, 2015 WY 3, ¶¶ 10-11, 341 P.3d 377, 381 (Wyo. 2015).

                                            DISCUSSION

[¶8] Mother raises only one issue on appeal: whether the district court abused its
discretion when it found that her relocation constituted a material change of
circumstances warranting the reopening of the original custody order. In Arnott v. Arnott,
2012 WY 167, 293 P.3d 440 (Wyo. 2012), we overruled our precedent holding that
relocation by the primary physical custodian, by itself, could not constitute a material
change in circumstances. Id. at ¶ 40, 293 P.3d at 458. Instead, we explicitly recognized
that “a relocation by the primary physical custodian, as well as ‘factors that are derivative
of relocation’—including ‘the inherent difficulties that the increase in geographical
distance between the parents imposes’—may constitute a material change in
circumstances sufficient to warrant consideration of the best interests of the children.”
Id. In this case, the district court relied on our decision in Arnott to find that “Mother’s
move to Texas constitutes a substantial and material change of circumstances sufficient to
warrant consideration of a custodial arrangement that is in the best interests of [TM].”
Mother contends that the district court abused its discretion in so finding. 1

[¶9] Mother declares that the district court failed to consider the res judicata effect of
the original custody order. We have recognized generally that custody decisions are
subject to the doctrine of res judicata; however, “[n]ew issues and facts may create a
material change in circumstances, thus mandating a new adjudication of the parties’
rights.” Kappen, 2015 WY 3, ¶ 12, 341 P.3d at 381-82. The issue of whether there has
been a material change in circumstances affecting the welfare of the child is a threshold
inquiry which the district court must resolve before it reopens an existing custody order
to determine the best interests of the child. Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis
2015); see also Arnott, 2012 WY 167, ¶ 14, 293 P.3d at 445; Kappen, 2015 WY 3, ¶¶ 13-
14, 341 P.3d at 382.

[¶10] In Arnott, we recognized that “a move by a custodial parent, especially when the
distance from the remaining parent is significant, may create ‘new issues framed by facts

1
  In addition to the arguments addressed herein, Mother also argues that the district court inappropriately
considered her past relationships in determining that there had been a material change in circumstances.
However, the district court made abundantly clear in its order that it was finding that only Mother’s
relocation constituted a material change in circumstances. It addressed Mother’s relationships only when
discussing which custody arrangement was in the best interests of TM. Because Mother did not raise the
issue of whether the district court abused its discretion by finding that it was in TM’s best interests for
Father to have primary physical custody, we need not address Mother’s argument on this issue.


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differing from those existing when the original decree was entered,’ which preclude the
application of res judicata.” 2012 WY 167, ¶ 39, 293 P.3d at 457-58. We went on to
identify some of the “new facts” that may arise as a result of a custodial parent’s
relocation which would justify a finding of a material change in circumstances, including:

              [A] change in the ability of the parties to maintain the existing
              parenting agreement, a change in the ability of the children to
              maintain a close relationship with the remaining parent,
              factors affecting quality of life in the new location, the child’s
              geographic preference, and the relative merits of available
              social and educational opportunities in the new location.

Id. at ¶ 39, 293 P.3d at 458. Examining these factors, we find that the district court could
reasonably have concluded that a material change in circumstances affecting the welfare
of TM occurred due to Mother’s relocation.

[¶11] Mother argues that the district court abused its discretion when it failed to consider
each of the factors set forth in Arnott. The Arnott factors were intended to provide
guidance to district courts regarding some circumstances that it may consider when faced
with a modification petition due to the relocation of the custodial parent. See Arnott,
2012 WY 167, ¶ 39, 293 P.3d at 458 (“These new facts may include . . .” (emphasis
added)). While we consider the Arnott factors a good framework for district courts to
consider when determining whether a relocation creates a material change in
circumstances, there is no requirement that they make findings regarding each factor.

[¶12] The district court’s order reflects that it considered at least some of the Arnott
factors, even though it did not explicitly identify them. First, the district court
determined that Mother’s move “essentially foreclose[d]” the parties’ ability to maintain
the existing parenting agreement. Arnott, 2012 WY 167, ¶ 39, 293 P.3d at 458 (New
facts and circumstances warranting reopening of the existing custody order when a
custodial parent relocates may include “a change in the ability of the parties to maintain
the existing parenting agreement.”). The court reasoned:

              [T]here is not time for Father to drive to Texas for weekend
              visitation, not to mention the additional cost.              It is
              prohibitively expensive for Father to fly for such frequent
              visitation. In addition, there is the practical difficulty of such
              weekend visitation in terms of time, since Father cannot
              reasonably fly to Texas until after work on a Friday, yet must
              be in Wyoming on Sunday for work on Monday.

Moreover, the district court implicitly recognized that Father’s ability to maintain a close
relationship with TM would be affected by the move due to a decrease in visitation which


                                              4
would inevitably occur: “The evidence shows that Father has been able to maintain a
close relationship and frequent contact with [TM], in part through regular alternating
weekend visitation and alternating long weekends every other month. Mother’s move to
Texas essentially forecloses that visitation scheme[.]”

[¶13] The parties also presented evidence regarding the relative merits of available
social opportunities, though the district court did not discuss this factor in its material
change of circumstances analysis. Arnott, 2012 WY 167, ¶ 40, 293 P.3d at 458; Olsen v.
Kilpatrick, 2007 WY 103, ¶ 10, 161 P.3d 504, 507 (Wyo. 2007) (“[T]his Court ‘may
affirm a district court’s decision on any proper legal grounds supported by the record.’”)
(quoting Del Rossi v. Doenz, 912 P.2d 1116, 1119 (Wyo. 1996)). The parties testified
that much of their extended family, on both sides, lives in or around Evanston, Wyoming,
and Layton, Utah, and TM spends a considerable amount of time with them. The
evidence demonstrated that TM’s contact with his extended family would significantly be
reduced if he moved to Texas.

[¶14] There was scant evidence presented on the remaining Arnott factors,2 which would
have made it nearly impossible for the district court to come to any kind of a conclusion
regarding those factors had the court attempted that feat. Nevertheless, the factors that
the district court was able to consider support its conclusion that Mother’s relocation did
constitute a material change in circumstances which warranted the reopening of the
existing custody order. Thus, Mother’s move, as well as the inherent difficulties imposed
by the increase in geographical distance between the parents, created new facts and issues
not present at the time the original custody order was entered, sufficient to warrant
reconsideration of the best interest of TM. Arnott, 2012 WY 167, ¶ 40, 293 P.3d at 458.

[¶15] Mother relies heavily on our decision in Kappen3 to establish that her move did
not constitute a material change in circumstances. We emphasize our holding in Arnott,
where “we rejected the application of any presumption to the relocation of a custodial
parent,” Kappen, 2015 WY 3, ¶ 18, 341 P.3d at 383, and we reiterate that the custodial
parent’s geographic move is but one of several factors the district court may weigh.
Furthermore, Kappen is easily distinguished from the facts and circumstances of this
case. In Kappen, we found the distance the custodial parent moved did not significantly
impact the existing parenting agreement. Id. at ¶ 20, 341 P.3d at 383. Mother’s
relocation, in this case, would require a reworking of the existing parenting agreement
because of the expansive geographic distance between the parties. Moreover, TM’s
relationship with Father would necessarily change due to an increase in the time between
Father’s visitation with TM.
2
  The remaining factors include: “factors affecting quality of life in the new location, the child’s
geographic preference, and the relative merits of available educational opportunities in the new location.”
Arnott, 2012 WY 167, ¶ 39, 293 P.3d at 458. These factors may not have had particular relevance to a
child of this age.
3
  Kappen was published after the district court’s order was issued.


                                                    5
[¶16] Mother also contends that the district court erred in light of our decision in Kappen
because the court focused on how the relocation would affect Father, and failed to
consider whether the move constituted a material change affecting the welfare of TM.
Indeed, in Kappen, we emphasized the need for a district court to consider whether “the
change holds some relevance in the child’s life.” Kappen, 2015 WY 3, ¶ 15, 341 P.3d at
382. While the district court never explicitly found that Mother’s relocation would have
an effect on TM, the evidence clearly demonstrates that such is the case. Olsen, 2007
WY 103, ¶ 10, 161 P.3d at 507. Primarily, as the district court found, TM would
experience a substantial change in the relationship he shares with his Father. Under the
original custody order, TM was able to spend time with Father at least once every two
weeks. With the extensive distance between Evanston, Wyoming, and College Station,
Texas, the frequency of those visits would inevitably decrease. Moreover, TM would
experience a reduction in time that he would be able to spend with his extended family.
The transition from seeing his extended family almost daily or bi-weekly to holidays or
“when [they] can find a time” would undoubtedly impact TM. The evidence clearly
establishes that relocation to College Station, Texas, would affect TM’s welfare.

                                     CONCLUSION

[¶17] The district court determined that Mother’s relocation, nearly 1,400 miles from
Father, created a material change in circumstances warranting the reopening of the
original custody order. The considerable increase in the geographical distance between
the parties created a material change in circumstances affecting the welfare of the child.
Because the district court could reasonably conclude as it did, we affirm.




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