Bachand v. Walters

OPINION MACY, Justice. In this case, we are called upon to determine whether the district court erred in clarifying its own order modifying a decree of divorce. We affirm. Appellant Yvonne K. Bachand (Walters) states this issue: Issue 1. The District Court Incorrectly Interpreted the Order on Petition to Modify Divorce Decree Entered March 8, 1990. Appellee Robert James Walters counters: 1. Did the District Court Abuse His Discretion By Revising and Clarifying the Parties’ Divorce Decree to (a) grant the Appellant the ability to visit the Parties’ Children When they visited the Ap-pellee Out of State During the Summer; and (b) To Extend Appellee’s Summer Visitation Period By the Amount of Time in Which Appellant Visited? 2. Is Appellant subject to costs, penalties and damages pursuant to W.R.A.P. 10.05 for bringing a frivolous and merit-less appeal? The parties were divorced by a decree entered on March 15, 1987. The wife was awarded custody of the parties’ two minor children, who were then about four and one-half years and three months of age. The original decree provided for visitation rights, largely premised upon the fact that both parents were residing in Cheyenne, but also contained this provision: If the parties reside in different communities which prevents the exercise of the visitation during the week, Husband shall be entitled to have the children for six weeks during the summer months. Further, during the years in which Husband is entitled to have the children on Christmas day, he shall be entitled to have them for one week during the Christmas vacation. In June 1989, the husband sought to have the decree modified as to his visitation rights. He premised his request for modification upon the fact that he had moved to southern California. The husband asked to be given four additional weeks of visitation during the summers as well as other periods of visitation which coincided with school vacation periods. The wife objected to lengthy summer visitations and introduced expert testimony indicating that, because of their ages, the children could be adversely affected by being away from their primary caretaker for periods longer than four weeks at one time. The district court, acknowledging that it was in the best interests of the children, entered an order on March 8, 1990, modifying the visitation provisions as follows: The visitation provisions of the Judgment and Decree of [Djivorce entered herein on the 15th day of May, 1987 should be, and the same are hereby, clarified to provide as follows: a. During the summers of 1990, 1991 and 1992, Plaintiff’s summer visitation with the minor children shall be one visitation period of three (3) weeks containing four (4) weekends during the first month of summer vacation and a second visitation period of three (3) weeks containing four (4) weekends during the third month of summer vacation. b. During the summers of 1990, 1991 and 1992, Defendant shall be entitled to visit the minor children for the Tuesday, Wednesday and Thursday of the second week of each such visitation period. Such Tuesdays, Wednesdays and Thursdays shall not be included when determining Plaintiff’s visitation periods. c. Beginning in the summer of 1993, Plaintiff shall be entitled to seven (7) consecutive weeks summer visitation containing no less than eight (8) weekends. During such summer visi [286] tation, Defendant shall be entitled to visit the minor children for the Tuesday, Wednesday and Thursday of such weeks as she may be able to travel to Plaintiffs place of residence. Such Tuesday(s), Wednesday(s) and Thursday(s) shall not be included when determining Plaintiffs visitation period. On May 14, 1990, the husband filed a motion for an order to show cause why the wife should not be held in contempt of the modified visitation order, claiming that the wife failed to abide by the terms and conditions of that order. On June 15, 1990, the wife filed a motion for summary judgment on the basis that she had fully complied with the modified visitation order. The district court denied both motions on November 20, 1990, and, because of the parties’ disagreement as to the interpretation of the March 8, 1990, order, issued a clarifying order, which provided in part: 3. That the Court hereby clarifies the Court Order of March 8, 1990 as follows: a. That the Court hereby adds the following to paragraph 3a: “This schedule applies if Mother does not exercise any visitation as set out in paragraph 3b and 3c.[”] b. [“] the event the Mother chooses to exercise visitation as set out in paragraph 3b and 3c, then Father shall be entitled to an additional visitation with his children for sueh time as the Mother has visited the children. This means that should the Mother visit less than the full three days, the Father will not be entitled to three additional days but only such additional time as utilized by the Mother in visiting the children as set out in paragraph 3b and 3c.” 4. That the Court in further clarification of the Court’s Order of March 8, 1990 hereby adds the following sentence at the end of paragraph 3c o[f] said Order: “The Mother shall be limited to two (2) visits under this paragraph.” This appeal followed. Wyo.Stat. § 20-2-113(a) (Supp.1990) provides in pertinent part: Either parent may petition the court to enforce or revise the decree. The court has continuing subject matter and personal jurisdiction to enforce or revise the decree concerning the care, custody, visitation and maintenance of the children as the circumstances of the parents and the benefit of the children requires. Neither party filed a motion to revise the visitation schedule. The wife urges us to view this matter from the perspective that the district court was construing its order, that such a construction is a question of law, and that we should give no particular deference to the decision of the district court. It is our view that the parties clearly demonstrated, through their actions and pleadings, the existence of a profound disagreement about the visitation periods. In the March 8, 1990, order, the district court employed language which was subject to misconstruction, especially in view of the parties’ now rather obvious hostility level. Therefore, we conclude that the district court could properly clarify its earlier modification order in light of the circumstances of the parents and for the benefit of the children. See Gaines v. Doby, 794 P.2d 566 (Wyo.1990). The husband asserts that the wife’s appeal was meritless and asks this Court to so certify and to award costs and a penalty pursuant to W.R.A.P. 10.05. We decline to do so. Affirmed. URBIGKIT, C.J., files a dissenting opinion.