               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 44

                                                            APRIL TERM, A.D. 2013

                                                                   April 17, 2013


WENDY WILLIS, f/k/a WENDY DAVIS,

Appellant
(Defendant),

v.                                                   S-12-0176

CHAD DAVIS,

Appellee
(Plaintiff).


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

Representing Appellant:
      M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Appellee:
      Matthew D. Winslow of Keegan & Winslow, P.C., Cody, Wyoming.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
VOIGT, Justice.

[¶1] The appellant, Wendy Willis (hereinafter Mother), appeals the district court’s
decision to deny her motion for modification of custody and visitation. She claims that
the district court’s order does not comply with the statutes regarding child custody and
visitation and that the district court improperly denied the admission of the children’s
treating counselor’s notes and written opinion into evidence at the motion hearing. We
affirm.

                                         ISSUES

[¶2] 1. Did the district court abuse its discretion when it denied Mother’s motion for
modification of custody and visitation?

       2. Did the district court abuse its discretion when it determined that the treating
counselor’s notes and written opinion regarding her counseling sessions with the children
were inadmissible hearsay?

                                         FACTS

[¶3] Mother and the appellee, Chad Davis (hereinafter Father), married in 2000, and
two children, CD and DD, were born during the marriage. On March 10, 2006, Father
filed for divorce, and the district court entered the decree of divorce on November 19,
2007. Father was granted primary physical and residential custody of the children, while
Mother was granted “reasonable and liberal visitation.” In its decision letter, the district
court specified that

              [v]isitation between [Mother] and [CD and DD] is to take
              place at least two weekends a month at or before 4:00 p.m.
              Friday and concluding at or before 4:00 p.m. Sunday. This
              visitation is to primarily take place on weekends when
              [Father] is working. The parties are to agree upon which
              weekends visitation will take place. However, the Court
              realizes that this type of arrangement may become stressful
              and confusing to not only the parties but also the boys as it
              may change each month. If either party finds that this
              arrangement is not working, they may notify the other party
              in writing and visitation will default and take place every
              other weekend beginning at or before 4:00 p.m. Friday and
              concluding at or before 4:00 p.m. Sunday.




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[¶4] On June 10, 2010, Mother filed a motion to modify the custody arrangement.1 A
hearing on the motion was held on March 22 and 23, 2012, where each party called
various witnesses, including experts. The district court determined that Mother failed to
demonstrate that there had been a material and substantial change in circumstances since
the last request for custody modification and denied the motion. The district court also
noted the inability of Mother and Father to cooperate when determining when Mother’s
visits with the children would occur. Thus, the district court ordered that Mother submit
her work schedule to Father and that Father create the visitation schedule. Additional
facts will be discussed when relevant.

                                           DISCUSSION

                 Did the district court abuse its discretion when it denied
                Mother’s motion for modification of custody and visitation?

[¶5] Mother argues that the district court abused its discretion when it denied her
motion for modification of child custody because the record demonstrates that there was
a material change of circumstances surrounding the original custody arrangement and
that a modification of custody is in the best interests of the children. “Decisions
pertaining to child custody are within the sound discretion of the district court and will
not be disturbed on appeal absent procedural error or a clear abuse of discretion.” CLH v.
MMJ (In re TLJ), 2006 WY 28, ¶ 6, 129 P.3d 874, 876 (Wyo. 2006). In making this
decision, we focus on whether the district court’s decision was reasonable. Id. Further,
“[w]e 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. After a review of the record, we find that the
record supports the district court’s finding that there was not a material change of
circumstances and, therefore, the district court did not have jurisdiction to consider the
best interests of the children and grant a custody modification.

[¶6] “As a general rule the doctrine of res judicata applies to divorce decrees.” Willis
v. Davis, 2010 WY 149, ¶ 12, 243 P.3d 568, 570 (Wyo. 2010). However, Wyoming law
recognizes that a modification to a custody or visitation arrangement is sometimes
necessary. Id. Modification of a custody order is controlled by Wyo. Stat. Ann. § 20-2-
204(c) (LexisNexis 2011), which states in pertinent part:

                      A court having jurisdiction may modify an order
                concerning the care, custody and visitation of the children if
1
 Between the times the district court filed the divorce decree and when Mother filed the motion to modify
custody that is at issue in this appeal, Mother and Father filed various motions with the district court,
including other motions to modify custody and requests for sanctions. Further, the district court’s
decision on one of those motions was appealed to this Court, which we affirmed. See Willis v. Davis,
2010 WY 149, 243 P.3d 568 (Wyo. 2010).


                                                   2
              there is a showing by either parent of a material change in
              circumstances since the entry of the order in question and that
              the modification would be in the best interests of the children
              pursuant to W.S. 20-2-201(a).

This statute requires the district court to find two things before granting a parent’s motion
to modify a custody or visitation order. First, the parent must show that there has been “a
material change in circumstances since the entry of the order in question[.]” Wyo. Stat.
Ann. § 20-2-204(c). If a material change in circumstances cannot be shown, the doctrine
of res judicata applies to the original order. In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d at 876.
“The district court does not properly acquire jurisdiction to reopen an existing custody
order until there has been a showing of ‘a substantial or material change of circumstances
which outweigh society’s interest in applying the doctrine of res judicata’ to a custody
order.” Id. (quoting Kreuter v. Kreuter, 728 P.2d 1129, 1130 (Wyo. 1986)). Thus, if
there is not a material change in circumstances, the district court need not determine
whether a modification would be in the best interests of the child. See id.

[¶7] Here, the district court determined that there had not been a material change in
circumstances; however, Mother claims that that conclusion is not supported by the
record. We disagree. The primary flaw with Mother’s argument is that she completely
disregards this Court’s standard of review. Specifically, she presents this Court only with
the evidence in favor of finding a material change of circumstances, as presented by her
witnesses. To the contrary, this Court views the evidence in the light most favorable to
the district court’s conclusion, and disregards all conflicting evidence. Id. at ¶ 6, at 876.

[¶8] Mother claimed that a material change in circumstances occurred because the
children were displaying more aggression in their behavior and because Father had not
put the children into counseling. The district court concluded that any behavioral
changes in the children could be attributed to Mother’s behavior which has “created a
stressful situation by failing to deal with situations in a mature manner which would be in
the children’s best interest.” Further, the district court did not fault Father for not putting
the children into counseling, as the children were already attending counseling paid for
by Mother. The record supports the district court’s findings.

[¶9] Mother called several witnesses during her case, two of which offered opinions in
a clinical context. The first was a licensed psychologist who was retained as an expert
witness by Mother. The second was a licensed clinical social worker who had been
seeing the children as a counselor since 2008. The expert testified that she observed and
interviewed the children on three different occasions and then made conclusions about
what steps needed to be taken in the future to help the children with the issues they were
experiencing--specifically depression and aggressive and anxious behavior. She
recommended that the children continue with individual counseling, and it would be ideal
if both parents agreed on the counselor. The expert opined that the tension between the


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parents was contributing “tremendously” to the children’s problems and that the children
are in “crisis” because the adults in their lives are making bad decisions.

[¶10] The counselor testified that she began treating the children in 2008 for aggression
and anxiety. She had written in her notes from the initial assessment that “Mom wants to
go back to court and get the boys back.” The counselor recommended that the children
needed to continue counseling on a weekly basis and also recommended that the parents
get equal custody time with the children. She stated: “Children need both parents, and
they need both biological parents in their lives.”

[¶11] Father called a licensed marriage and family therapist as an expert witness at the
hearing. The expert met with the children and their family members (Father, step-
mother, half-sister, and step-brother) at their home on two occasions and also met with
Father and the children’s step-mother at the expert’s office. After the evaluation,
Father’s expert agreed with Mother’s expert’s recommendations, but also recommended
that both parents attend counseling sessions of their own. She further suggested that the
parents change the way in which they communicate with one another--if they can’t
speak to each other in person without conflict, they need to communicate via text
message or e-mail. Father’s expert believed the only change needed to stop the stress in
the children’s lives is their parents’ behavior.

[¶12] Despite Mother’s claims to the contrary, there was ample evidence produced at the
hearing to support the district court’s finding that the children’s behavior was not a
material change of circumstances that could warrant a change in custody or visitation if in
the children’s best interests. The testimony of the counselor demonstrates that the
children were having issues with aggression in 2008, which was a year before the first
motion to modify custody was filed in 2009 and ultimately denied by the district court.
Further, the testimony demonstrates that the behavior is not caused by some new and
material change in circumstances regarding custody and visitation. Instead, it is caused
by the parents’ continual bad behavior towards each other which, as far as this Court can
tell, has been a problem since before the divorce was finalized. Thus, these problems are
nothing new and the district court did not abuse its discretion in finding this did not
warrant a material change in circumstances.

[¶13] With respect to the counseling issue, Father testified that he was involved in some
of the counseling decisions when the children first began counseling. However, he
became uncomfortable with the current counselor after law enforcement began
investigating his family. Father testified that he would help with the costs of counseling
if he had some sort of input as to the counselor, but as of now Mother insists on the
children seeing the current counselor. Father explained that he had not sought other
counseling for the children because he did not think they needed to see two different
counselors. Because the evidence was clear that the children had been in counseling, and
it is reasonable to believe only one counselor is necessary for the children, we find that


                                            4
the district court did not abuse its discretion when it found that this also was not a
material change in circumstances.

[¶14] Mother also makes reference to abuse she alleges the children have suffered at the
hands of their teenaged step-brother. She claims that this information is a sufficient
material change of circumstances to warrant a change in the custody order. Although the
district court did not specifically discuss these allegations in its order denying Mother’s
motion, we conclude that the district court did not abuse its discretion in finding this
information was not a material change in circumstances either.

[¶15] The counselor testified that the children told her that they did not feel safe at
Father’s home because their step-brother was mean to them and would hurt them. She
also testified that over time she saw one of the children, DD, with a black eye on two
occasions and a bruise behind his ears. When the counselor inquired about the first black
eye, DD initially explained that he had fallen down, but he then later stated his step-
brother hit him with a baseball bat. When he had the second black eye, he would not tell
the counselor how he had received it.

[¶16] While this testimony on its own is concerning, there was also evidence presented
that the counselor and Mother contacted the police about the allegations of abuse. The
detective who investigated the report interviewed Mother, Father, the step-mother, the
step-brother, and both children. When she interviewed DD, he told her that he received
the bruise after falling off a wooden railroad tie, and the step-brother denied that he had
hit DD with a baseball bat. At the end of the investigation, the detective concluded that
there was no evidence to support the allegation that the step-brother had hit DD with a
bat.

[¶17] Further, in response to the allegations of abuse against the step-brother, Father and
step-mother have taken steps to make sure that the younger children cannot be injured
accidentally during play with the step-brother. The step-mother testified that, although it
makes her sad because it doesn’t allow the brotherly relationship all the children had
before, the step-brother does not have any physical contact with CD and DD. Father
explained that there is a house rule that the boys are not allowed to engage in any
wrestling or roughhousing. Additionally, the step-brother is never left alone with CD or
DD. Thus, the evidence demonstrates that it is unlikely that DD or CD have been or are
being abused by the step-brother and that these allegations do not constitute a material
change in circumstances.

[¶18] Mother’s brief devotes most of its length to why a change in the custody and
visitation order would be in the best interests of the children. However, because there
was not a material change of circumstances regarding the custody and visitation order,
the district court did not acquire jurisdiction to consider whether a change would be in the
best interests of the children. Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 8, -- P.3d --, --


                                             5
(Wyo. 2013). Therefore, the district court did not abuse its discretion when it did not
engage in an analysis regarding the best interests of the children. Instead, the doctrine of
res judicata forbids the district court from doing so. See id. For these reasons, we also
cannot consider whether a change of custody and visitation would be in the best interests
of the children.

[¶19] We must address one final argument Mother makes regarding the district court’s
order. Mother asserts that “[e]ven though the [district] [c]ourt found that there was no
material change of circumstances, the [district] [c]ourt sua sponte ordered that the
previous visitation order should be modified.” Mother’s argument seems to be based
upon the fact that in the original visitation schedule the district court stated:

                     Visitation between [Mother] and [CD] and [DD] is to
              take place at least two weekends a month at or before 4:00
              p.m. Friday and concluding at or before 4:00 p.m. Sunday.
              This visitation is to primarily take place on weekends when
              Chad is working. The parties are to agree upon which
              weekends visitation will take place.

(Emphasis added.) In the order denying Mother’s motion to modify custody and
visitation, the district court stated:

                      With respect to weekends that the Parties have to work
              during their scheduled visitation, the Court finds that the
              previous ruling contemplated both parties having some
              minimal degree of civility toward one another. The hope was
              for a schedule that accommodated each other; however, this is
              [obviously] not going to develop. The Court therefore orders
              [Father] to create the visitation schedule. [Mother] is to
              submit her work schedule for this purpose.

                      As always, the parties are at liberty to schedule
              visitation as they may agree upon. This Court sincerely hopes
              that will occur.

                     With respect to holiday visitation, it is to coincide with
              the school’s schedule and run through the weekend before
              school resumes. Specifically, Thanksgiving begins the
              Wednesday afternoon school recesses and ends the Sunday
              afternoon before school resumes. Spring/Easter Break is to
              operate in the same way.




                                             6
                       If the Thanksgiving or Spring/Easter break coincides
                with the same weekend of regular weekend visitation it does
                not mean an extra weekend for [Mother].

[¶20] Mother argues this “change” gives Father “complete discretion over the visitation”
and that “if [Father] gets angry at [M]other, he can take away her visitation entirely[.]”
We find that Mother’s assertions simply are not the case. The district court’s order did
not modify the amount of visitation that Mother gets with the children. She will still
receive her two weekends of visitation per month. If she does not, she may request that
the district court find Father in contempt of court. The transcripts demonstrate that
Father and Mother often were unable to come to an agreement regarding which weekends
Mother’s visitation should take place, and they had different understandings of what days
were included in holiday visitation. To remedy the bickering between the parties in that
respect, the district court put Father in charge of determining which two weekends per
month Mother gets visitation. This arrangement makes sense considering Father’s work
schedule originally was supposed to be the driving factor in when Mother’s visitation was
to take place. Further, the district court clarified its expectations regarding what days the
holiday visitations included. Those clarifications were well within the purview of the
district court and it did not abuse its discretion in making them. Bachand v. Walters, 809
P.2d 284, 286 (Wyo. 1991).

                      Did the district court abuse its discretion when it
                     determined that the treating counselor’s notes and
                   written opinion regarding her counseling sessions with
                           the children were inadmissible hearsay?

[¶21] Mother argues that the district court committed error when it determined that the
treating counselor’s notes and written opinion regarding her counseling session with the
children were inadmissible hearsay. Normally, we review a trial court’s evidentiary
decisions for an abuse of discretion. Glenn v. Union Pac. R.R. Co., 2011 WY 126, ¶ 12,
262 P.3d 177, 182 (Wyo. 2011). However, the basis on which Mother argues the
evidence should be admissible is being raised for the first time on appeal.2

                We strongly adhere to the rule forbidding us to consider for
                the first time on appeal issues that were neither raised in, nor
                argued to, the trial court, except for those issues which are
                jurisdictional or are fundamental in nature. We follow this
                rule because it is unfair to reverse a ruling of a trial court for
                reasons that were not presented to it, whether it be legal

2
  At trial, Mother claimed that the counselor’s notes and written opinion were admissible as statements for
the purposes of medical diagnosis or treatment under W.R.E. 803(4). On appeal, she argues that the
documents are admissible as a business record pursuant to W.R.E. 803(6).


                                                    7
              theories or issues never formally raised in the pleadings nor
              argued to the trial court.

Washington v. State, 2011 WY 132, ¶ 15, 261 P.3d 717, 721 (Wyo. 2011) (quoting Erwin
v. State, DFS, 2010 WY 117, ¶ 15, 237 P.3d 409, 414 (Wyo. 2010) (internal citations and
quotations omitted)).

[¶22] Whether certain evidence is admissible at a hearing certainly is not jurisdictional
in nature. Further, it cannot be argued that this evidence was fundamental as the
counselor testified at length at the hearing. Mother claims that the omission of the
evidence was egregious because it contained information regarding the emotional and
psychological detriment of the children due to the amount of time that they spend with
their Mother, the violence from the step-brother, that the children do not feel safe at
home, and that Father had coached the children not to report negative things to the
counselor. However, the counselor testified regarding each of these allegations at the
hearing. Thus, we decline to consider whether the district court’s decision regarding the
evidence was error.

                                     CONCLUSION

[¶23] The district court’s conclusion that Mother failed to demonstrate a material change
in circumstances surrounding the custody and visitation order is supported by the facts
presented at the hearing. For that reason, the district court was not required to engage in
an analysis of whether a change in custody or visitation was in the best interests of the
children. Finally, we decline to consider Mother’s argument that the counselor’s notes
and written opinion were admissible as business records under W.R.E. 803(6) because
that issue is being raised for the first time on appeal. We affirm the district court’s order
denying Mother’s motion to modify custody and visitation.




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