Bloom v. Bloom

Appellant Barrie Ira Bloom (husband) appeals from an order of the district court which denied his motion to enforce certain provisions of a divorce decree which he contended appellee Mona L. Bloom (wife) was not following. His principal concern is that the district court did not provide him with a hearing and, thus, he was denied due process of law. We agree that a hearing was necessary and reverse the order of the district court.

Husband states these issues:

I. Whether the court erred in entering its order on appellant's motion to enforce provision of judgment and decree and post decree order and appellee's counterclaim and motion for decree modification without providing appellant a hearing.

II. Whether the court erred in modifying the time of appellant's weekend visitation without a request by appellee, without a showing of substantial changes in circumstances justifying the modification and without a showing that such modification was in the best interests of the child.

III. Whether the modification of the weekend visitation and the refusal of the court to enforce appellant's right to have his son for all the major Jewish holidays was an abuse of discretion since the divorce decree specifically required that the child be raised in the Jewish faith.

IV. Whether the court's order requiring appellant to pay appellee $2000 to resolve the real property issues was based on insufficient and disputed evidence.

In response, wife contends:

I. Appellant was provided an opportunity to be heard, therefore, the court did not err in entering its order without having received oral evidence.

II. The issue of modifying the time of appellant's weekend visitation was properly before the court by request of the appellee, and a showing of substantial change in circumstances was made by appellee, and a showing was made that such modification was in the best interests of the child.

III. The modification of the weekend visitation and the refusal of the court to enforce visitation not granted in the decree was not an abuse of discretion.

IV. The court's order requiring appellant to pay appellee $2000.00 to resolve the real property issues was based upon sufficient evidence.

FACTS A decree of divorce was granted to the parties on December 30, 1986. The decree contained a provision that the parties' child was to be raised in the Jewish faith and that husband was to have visitation with *Page 1195 the child on each major Jewish holiday. The dates for those holidays in 1986 and 1987 were included in the decree, but three were lined-out and only wife's counsel's signature appeared by the lined-out dates. The decree also provided that the parties were to sell their real property and divide the proceeds equally. At the original divorce hearing, the district judge admonished wife in particular, but also husband, for not working the issues out more satisfactorily and responsibly in the best interests of their child. It is clear from the transcript of the original proceeding that there were many loose ends unresolved with regard to visitation and disposal of the real property.

On May 6, 1987, husband filed a motion to find wife in contempt of the decree. He claimed that wife: would not provide him with a phone number so he could have his regularly scheduled telephone visits with his son; would not disclose her address or the address of his son; and required husband to pick up and deliver the child to the Cheyenne police station rather than at their respective residences as provided for in the decree. Wife denied husband's claims and counterclaimed that he had: violated the decree by not timely paying child support; not divided the parties' personal property as provided for in the decree; harassed wife on a regular basis; and failed to make required payments on one piece of the real property owned by them. This dispute was settled by the district court on January 25, 1988. It is apparent that the district court used a procedure to decide this case which has subsequently been held to be unsatisfactory.Foster v. Foster, 768 P.2d 1038 (Wyo. 1989). However, no appeal was taken from that order of the district court.

On October 27, 1988, husband filed a motion to enforce the divorce decree. That matter was not decided until June 29, 1989, and was disposed of by the district court on briefs, affidavits, and other written documentation. No hearing was held. We find it unnecessary to recite in detail all the charges and countercharges made by each of the parties. They were voluminous and we cannot quarrel with the district court's conclusion that this was "an absurd fight." However unfortunate it might be, it is not unusual for custody, support and visitation issues to remain alive for years, if not decades. Children become the unfortunate pawns in their parents' battles. Nonetheless, our tradition is that such disputes are resolved in courts of law, after the parties have been accorded due process.

Ultimately, the district court awarded wife $2,000 to settle the real property dispute and left the visitation schedule exactly as it was in the original decree, with the exception of changing the pick-up time from 5:00 p.m. Friday to 6:00 p.m. on Friday. This change was made to accommodate wife's work schedule and husband claimed it made it impossible for he and his son to attend Friday evening religious services.

DISCUSSION The governing statutes contemplate that additional proceedings may likely be necessary in child support and custody matters. W.S. 20-2-113(h) (Cum.Supp. 1989). Such proceedings are a continuation of the original divorce decree, although they do have some attributes of a separate and distinct matter.Nicholaus v. Nicholaus, 756 P.2d 1338, 1341-42 (Wyo. 1988). We have held that child custody and visitation matters involve a fundamental right, that of association with one's immediate family. Hall v. Hall, 708 P.2d 416, 421 (Wyo. 1985). Moreover, our decisions are clear that as a general rule proceedings for modification of a custody decree require an opportunity to be heard. Id.; Tanner v. Tanner, 482 P.2d 443, 445 (Wyo. 1971); 4 J. McCahey, M. Kaufman C. Kraut, Child Custody Visitation Law and Practice, § 25.02[2][b] (1990). See also Foster, 768 P.2d at 1041. There are circumstances where we have found an abbreviated hearing sufficient to have provided due process, or at least sufficient enough to constitute only harmless error.Hall, 708 P.2d at 421-22; and see Yates v. Yates,702 P.2d 1252, 1254-55 (Wyo. 1985).

Here, no hearing at all was held and husband was justifiably surprised to find *Page 1196 the district court entering an order disposing of his claims without his having been given an opportunity to present all relevant, noncumulative evidence that supported his cause. The visitation issues were hotly contested and husband's assertion that modification of Friday visitation, for the limited purpose of accommodating wife's work schedule, irreconcilably frustrated that portion of the decree which requires that the child be raised in the Jewish faith. While there may be custody/visitation cases which require only limited testimony or testimony primarily documentary in nature and a formal hearing before the judge may not be necessary if the parties so agree, this is not such a case. See Dixon v. Dixon, 423 N.W.2d 507,509-11 (S.D. 1988).

We note as well that the district court appears to have modified the property settlement, as opposed to enforcing it or resolving an ambiguity. From the record, it is not entirely clear what the district court did effect. However, we note that a district court does not have jurisdiction to modify what is, in essence, a money judgment. McMillan v. McMillan, 702 P.2d 1279,1281-82 (Wyo. 1985).

Reversed and remanded with instructions that the district court afford husband a meaningful opportunity to present evidence to the district court in a formal hearing setting.

URBIGKIT, C.J., filed a dissenting opinion.