IN THE SUPREME COURT, STATE OF WYOMING

2024 WY 2

 OCTOBER TERM, A.D. 2023

January 10, 2024

TODD ANDREW DOMENICO,

Appellant

(Defendant),

v.

JOSIE DANIEL f/k/a JOSIE DANIEL 

DOMENICO,

Appellee

(Plaintiff).

JOSIE DANIEL f/k/a JOSIE DANIEL 

DOMENICO,

Appellant

(Plaintiff),

v.

TODD ANDREW DOMENICO,

Appellee

(Defendant).

S-23-0080, S-23-0106

S-23-0081

Appeal from the District Court of Teton County

The Honorable Kate G. McKay, Judge
Representing Todd Andrew Domenico: 

Anna Reeves Olson, Long Reimer Winegar, LLP, Casper, Wyoming; Elizabeth 

Greenwood and Inga L. Parsons, of Counsel, Greenwood Law, LLC, Pinedale, 

Wyoming. Argument by Ms. Olson. 

Representing Josie Daniel: 

Christopher J. King, Apex Legal, P.C., Worland, Wyoming. Argument by Mr. 

King. 

Guardian ad Litem: 

No appearance.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
1

GRAY, Justice. 

[¶1] Todd Andrew Domenico (Father) and Josie Daniel (Mother) divorced on April 9, 

2018. The Decree of Divorce (Decree) granted joint legal custody of the parties’ two 

children to Father and Mother and primary physical custody to Father. In 2020, Mother 

filed for a modification of the Decree requesting primary physical custody of the children. 

After a trial, the district court continued primary physical custody with Father and 

increased Mother’s visitation. Father and Mother filed cross-appeals. We reverse in part 

and remand for further proceedings. 

ISSUES 

[¶2] Mother and Father, while advocating different outcomes, raise some of the same 

issues and each raises separate issues. We reorganize and rephrase these issues as follows: 

1. Did the district court abuse its discretion when it denied 

a W.R.C.P. 35 psychological evaluation of Mother and 

prohibited inquiry into Mother’s mental health? 

2. Did the district court fail to make sufficient findings of

fact to support its custody and visitation determinations under 

W.R.C.P. 52? 

a. Did the district court err in failing to award 

Mother primary physical custody or a shared custody 

arrangement? 

b. Did the district court err in failing to allocate 

visitation for the children’s birthdays; extending 

Mother’s summer visitation for two weeks with no 

weekend visitation for Father; and removing the 

requirement that the parents provide qualified 

caregivers for WGD? 

3. Did the district court abuse its discretion in failing to 

designate one parent as a final decision-maker on issues of the 

children’s welfare, especially medical decision-making? 

4. Did the district court violate Mother’s fundamental right 

to parent when it prohibited Mother from obtaining a 

psychological evaluation of her children? 
2

5. Did the district court abuse its discretion when it refused 

to consider allegations of Mother’s psychological abuse of one 

child after the evidence closed? 

FACTS AND PROCEDURAL HISTORY 

[¶3] Mother and Father have two children, WGD (born in 2007) and SMD (born in 

2011). WGD is severely autistic and requires specialized care. In 2018, after lengthy, 

hostile litigation, the district court awarded Father and Mother joint legal custody of the 

children and gave primary physical custody to Father. In the Decree, the district court 

found that Father had been the children’s primary caregiver in a stable home environment 

since 2013 and that Mother struggled with her development as a parent because of opiate 

addiction and mental health issues. She was awarded supervised visitation every other 

weekend, Wednesday evening visitation, and four weeks during the summer vacation. The 

Decree placed conditions on Mother’s visitation. Some related to the care of the children, 

and others addressed Mother’s rehabilitation. 

[¶4] The Decree required qualified caregivers for WGD. Specifically, the court ordered: 

Mother shall provide [Applied Behavior Analysis (ABA)] 

therapy in her home for WGD during her periods of 

responsibility as recommended by WGD’s therapists, and

Mother shall employ assistant(s) to assist her with WGD’s 

care. The parties shall cooperate in facilitating SMD’s 

participation in any agreed-upon activity, regardless of which 

parent SMD is with during those activities. 

[¶5] In 2020, after completing the rehabilitative conditions, Mother filed a Motion to

Modify Custody, Visitation, and Child Support. She originally sought primary physical 

custody of the children but later added an alternative request for a shared custody 

arrangement. 

[¶6] Prior to trial, Mother filed her Expert Witness Designation. Mother’s designation 

named Dr. Amanda Turlington, a licensed psychologist, as a retained expert. According 

to the designation, Mother retained Dr. Turlington to conduct psychological examinations 

on both children “to determine the predicted effects on each child of a modification to the 

current custody and visitation arrangement, as well as other factors.” The designation 

asserted the evaluations were scheduled for “early March” and that the designation would 

be supplemented when a report was available. Father and the guardian ad litem (GAL) 

first learned of Mother’s proposed psychological evaluation of the children from the Expert 

Witness Designation. Father filed a motion to strike Mother’s expert and prohibit the 

evaluation of the children. 
3

[¶7] Father based his objection on two arguments. First, Mother’s designation failed 

under W.R.C.P. 26(a)(2)(B)(i) and (ii). Rule 26 in relevant part requires that the disclosure 

of a witness retained or specially employed to provide expert testimony must be 

accompanied by a written report. The written report must contain, among other things, “(i) 

a complete statement of all opinions the witness will express and the basis and reasons for 

them; [and] (ii) the facts or data considered by the witness in forming them[.]” Second, 

Mother failed to seek court approval for an evaluation of the children under W.R.C.P. 35. 

[¶8] After finding that Mother had failed to submit the required information or show 

good cause for the evaluation, the district court granted Father’s motion. It prohibited a 

psychological evaluation of the children and struck the witness. 

[¶9] The proceedings were bifurcated with the initial hearing limited to the question of 

whether there had been a material change of circumstances (First Phase: Material Change 

of Circumstances or Change of Circumstances Trial). Once the district court found a 

material change of circumstances, the case proceeded to trial on modification of custody 

and visitation (Second Phase: Modification of Custody and Visitation or Custody 

Modification Trial). 

A. First Phase: Material Change of Circumstances 

[¶10] At the July 2021 Change of Circumstance Trial, Mother presented the testimony of 

Dr. Sadie Cole Monaghan.1 Dr. Monaghan conducted a psychological evaluation of 

Mother on April 16, 2018, followed by weekly individual therapy sessions with Mother 

which continued through the time of the trial. Dr. Monaghan testified that Mother had 

shown significant improvement in her parenting skills and mental health issues. Mother 

also called her primary substance abuse therapist, Anne Ellingson. Ms. Ellingson’s 

participation in Mother’s treatment began shortly after the divorce was filed in 2017 and 

continued until 2019. In March 2019, she released Mother from further drug rehabilitation 

treatment but recommended continued mental health treatment. Two caregivers who 

worked with WGD in Mother’s home testified the children had a close and loving 

relationship with Mother. Sara Devon Viehman, Mother’s friend and coworker, testified 

about Mother’s likely success in her new job, her personal improvement, and her close 

relationship with the children. 

[¶11] The district court found a material change of circumstance as follows: 

It was unequivocally established at trial that Mother has made 

vast improvements in personal development and her ability to 

parent since the time of the Decree in 2018. Mother struggled 

1 During these proceedings, Dr. Monaghan changed her name to Dr. Cole and is referred to by that name

later in the record.
4

with addiction. She is now well into recovery. She was subject 

to a variety of treatment and testing requirements. She has met 

those benchmarks and completed treatment. She was 

unemployed. She is now employed. She rented a home. She

now owns a home. She was faced with a large volume of 

conditions for supervised and unsupervised visitation. She has 

complied with those conditions now for a long period and 

transitioned some time ago to unsupervised visitation. She had 

health issues and physical limitations. Those limitations have 

resolved. It is uncontested that Mother now thrives. Mother 

should be commended for her achievements. 

It is also not contested that Father has maintained as a 

parent since the entry of the Decree. His life has not been

stagnant, however. Changes in his life include the addition of 

a new partner who now lives in the home. That partner’s 

daughter also resides at Father’s home. The Court heard 

testimony that the parties’ children continue to do well in the 

new environment at Father’s house. 

Thus, this is not a case where the custodial parent has 

diminished or remained stagnant. Both parents now appear to

be on a more even footing as parents when compared to the 

circumstances at the time of trial. 

B. Motions Prior to Second Phase: Modification of Custody and Visitation Trial 

[¶12] After the district court’s ruling on the Material Change of Circumstances Trial but 

prior to the Custody Modification Trial, the parties filed numerous motions—Father’s 

Motion to Dismiss Petition or Alternative to Strike [Mother’s] Experts2 and for Sanctions

(Motion to Strike); the GAL’s Motion for an Order Requiring [Mother] to Obtain a 

Psychological Evaluation Pursuant to W.R.C.P. 35 (Rule 35 Motion); Mother’s Expedited 

Motion for Order Regarding Medical Decision-Making Concerning COVID-19 

Vaccination for the Minor Children; Father’s Motion for Full Medical Authority to Make 

Medical Decisions for the Minor Children; and Mother’s Expedited Motion for Order 

Permitting [Mother] to Make Medical Appointment for WGD.

2 Mother’s experts were Dr. Anthony (physician), Dr. Monaghan (psychologist), and Dr. Collins 

(psychiatrist).
5

1. Motion to Strike 

[¶13] Father based his Motion to Strike on Mother’s failure to comply with discovery.3

 

He cited many instances where Mother failed to comply with discovery requests entirely, 

provided only partial responses, or submitted redacted medical records prior to depositions. 

Mother objected to the Motion to Strike asserting that any discovery failures did not 

prejudice Father. 

[¶14] After a hearing on the matter, the district court found the discovery violations 

prejudiced Father and the GAL. The district court struck Mother’s witnesses from 

testifying at the Custody Modification Trial, stating that “[i]f this [was] not a best interests

situation, [the] Court would strongly consider . . . dismissal given the inappropriate 

behavior.” 

2. Rule 35 Motion4

[¶15] In a Rule 35 Motion, the GAL asserted Mother’s mental health, as it relates to 

parental fitness and competency, continued to be at issue in the Custody Modification Trial. 

The GAL claimed there was good cause to conduct a second evaluation as the original 

evaluation, conducted by Dr. Monaghan, was not based on objective criteria because 

3 At this juncture in the proceedings, the district court judge assigned to the case retired. A different district

court judge assumed responsibility for the proceedings on January 11, 2022. 

4 W.R.C.P. 35(a) provides:

(a) Order for an Examination.— 

(1) In General.—The court where the action is pending may 

order a party whose mental or physical condition—including 

blood group—is in controversy to submit to a physical or mental 

examination by a suitably licensed or certified examiner. The 

court has the same authority to order a party to produce for 

examination a person who is in its custody or under its legal 

control.

(2) Motion and Notice; Contents of the Order.—The order: 

(A) may be made only on motion for good cause and 

on notice to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, 

and scope of the examination, as well as the person or 

persons who will perform it. 

(Emphasis added.) W.R.C.P. 7(b) provides the requirements for presenting a motion to the court:

(b) Motions and Other Papers.— 

(1) In General.—A request for a court order must be made by 

motion. The motion must:

(A) be in writing unless made during a hearing or 

trial;

(B) state with particularity the grounds for seeking 

the order; and

(C) state the relief sought.
6

Mother had not disclosed material information to Dr. Monaghan about her past mental 

health treatment. The GAL asserted Dr. Monaghan, Mother’s counselor, was not a neutral 

witness and given the parties’ current dispute regarding the veracity and reliability of 

Mother’s medical records, a comprehensive psychological evaluation by a neutral, third 

party was required. The GAL proposed the name of an independent expert who could 

complete the evaluation and report in time to allow the trial schedule to proceed without 

change. Father separately joined GAL’s motion, claiming Mother’s mental condition as it 

relates to her parenting ability was in controversy. Mother objected, arguing the GAL did 

not establish good cause to conduct an evaluation. Mother further objected to the proposed 

neutral third-party expert. 

[¶16] The district court denied the GAL’s Rule 35 Motion finding: 

1. Under Wyo. R. Civ. Proc. 35(a), [Mother’s] mental and 

physical condition are placed in issue in this modification 

action, but there is not good cause to order a psychological 

evaluation of [Mother] at this time. 

2. The Court realizes that the discovery of redactions to 

records and the late ability to take the deposition of some of the 

experts may have interfered with an ability to think through 

whether to request . . . an independent psychological evaluation 

be conducted, but the hearing on the first half of the statute for 

modification occurred eight months ago, although the Court 

acknowledges that the GAL’s Motion . . . was made in 

December. 

3. The Court does not find that the GAL’s Motion . . . is 

calculated to assist the Court in touching on the best interests 

of the children to determine whether any modification of the 

parties’ Decree needs to be made. 

4. It is [Mother’s] burden to come forward to show that a 

material change existed and to show that whatever 

modification she seeks is in the best interests of the children, 

considering all the other options about the best interests of the 

children for the Court to examine. That includes the custodial 

arrangement for many years and the stability or instability of 

the children in their environment and under their schedule, 

which the Court would expect to hear testimony and evidence 

regarding, rather than focusing on the reliability of opinions of 

experts who, for the most part, the Court has stricken that 
7

[Mother] intended to call about her psychological and physical 

situation on how those may have affected the children. 

5. The focus should be on the best interests of the children, 

not on [Mother], but it is [Mother’s] burden to show that her 

proposal to modify the Decree is in the best interests of the 

children overall. 

 3. Mother’s Motion for Medical Decision-Making

[¶17] Mother filed an Expedited Motion for Order Regarding Medical Decision-Making 

Concerning COVID-19 Vaccination for the Minor Children. The motion stated that 

Mother had agreed to have WGD receive the vaccination but objected to the vaccination 

of SMD due to the “unknowns that remain surrounding the vaccine.” Mother requested an

order temporarily restraining the parties from vaccinating SMD. 

 4. Father’s Motion for Medical Decision-Making

[¶18] Father filed a reply and a Motion for Full Medical Authority to Make Medical 

Decisions for the Minor Children. Father requested that Mother’s motion be denied and 

sought a hearing on his motion for sole medical authority. He asserted the parties’ 

discussions regarding the children’s medical care had been unproductive for months. They 

were unable to agree on appropriate medications for WGD or on a foot operation ultimately 

intended to prevent WGD from being confined to a wheelchair. The GAL also responded 

supporting the doctor’s recommendation that the children receive a COVID-19 

vaccination.5 

[¶19] Without a hearing, the district court denied the parties’ motions on medical decisionmaking. It found the parties’ motions attempted to modify the original Decree without 

affording the other parent due process of law and without providing admissible evidence 

in support of the motions. 

5. Expedited Motion for Order Permitting [Mother] to Make Medical

Appointment

[¶20] Several months later, Mother filed an Expedited Motion for Order Permitting 

[Mother] to Make Medical Appointment for WGD. Mother alleged WGD had been taking 

Adderall since late 2021 but had not been diagnosed with attention deficit disorder (ADD), 

5 Based on the number and tenor of the motions being filed, on January 26, 2022, the district court issued a 

Case Requirements Order under Rule 801 of the Uniform Rules for District Courts (Case Requirements

Order) setting conduct requirements for counsel during litigation. It also issued an Order Requiring

Counsels’ Immediate Compliance which stated because the parties were not complying with the Case

Requirements Order, any further violation would result in sanctions.
8

attention deficit hyperactivity disorder (ADHD), or any similar disorder. She asserted 

WGD’s behavior had become more aggressive since taking the drug, and her consent to 

his continued use of the medicine was conditioned on her ability to take him to a 

psychiatrist to determine whether the drug was suitable. Mother had made an appointment, 

but it was postponed due to Father’s disagreement. Mother requested an order permitting 

her to take WGD to an appointment. 

[¶21] Father objected, claiming WGD’s current medical providers prescribed the 

medication and neutral third parties such as school personnel found its effects on WGD 

helpful. In addition, Father argued WGD’s severe autism made it unlikely that such an

appointment would result in productive diagnostic information, and that it was 

unnecessary, potentially confusing, and traumatic for WGD. Father asserted that the 

parties’ disagreements over WGD’s other medications and the recommended surgical 

procedures for WGD’s feet should take precedence over any psychiatric evaluation. 

[¶22] After hearing argument, the district court denied Mother’s motion. 

C. Second Phase: Modification of Custody and Visitation 

[¶23] The Custody Modification Trial began on August 31, 2022. Prior to trial, Father 

filed a Request for Written Findings Pursuant to Rule 52(a)(1)(A) (Rule 52). After three 

days of testimony and evidence, the trial was continued for a fourth day and completed on 

October 20, 2022. The issues at trial were custody, visitation, and modification of the 

decision-making authority of the parents. 

[¶24] After trial, but before the district court entered its Final Order6 on January 4, 2023, 

the GAL filed an Emergency Motion to Suspend [Mother’s] Visitation Until Further Order 

based on events that occurred during Mother’s December visitation. The GAL later 

supplemented the motion with written reports from police officers, the hospital counselor, 

and school personnel. Mother claimed SMD was experiencing suicidal ideation and over 

the course of three days took SMD to school officials, the police department, and the 

emergency room. None of the entities found Mother’s reports of SMD’s suicidal thinking 

credible. The district court did not separately rule on the GAL’s motion but dismissed it 

in its Final Order. 

[¶25] The district court issued a Final Order on January 4, 2023. The order did not modify 

custody. Mother and Father continue to have joint legal custody of the children with Father 

6 On January 3, 2023, the district court issued an order entitled Trial Order Regarding Best Interests

Modification of Decree of Divorce. There were two subsequent orders—Amended Trial Order Nunc Pro 

Tunc filed January 3, 2023, and Second Amended Trial Order Nunc Pro Tunc filed January 4, 2023 (Final 

Order). 
9

as the primary physical custodian.7 The district court addressed but did not modify the 

parties’ decision-making authority, stating: 

Neither party shall have the right to make a decision over the 

view or decision of the other parent if the parties are unable to 

make any major joint decisions regarding their children’s 

welfare, education, non-emergency healthcare, discipline, and 

religious training. 

[¶26] The summer visitation schedule was modified. Mother’s summer visitation 

increased from four to six consecutive weeks. The following provisions of the Decree were 

vacated:

12. All references in the Decree requiring co-parenting 

counseling or use of a parent coordinator[;] 

13. All references in the Decree requiring that any party 

must provide qualified assistants, therapists, caregivers, 

supervisors, or specialized therapists, including ABA therapy 

and assistance, for WGD[;] 

14. All references in the Decree preventing [Mother] from 

driving or operating a vehicle with WGD as a passenger 

without another adult person, a qualified assistant, a therapist, 

a caregiver, a supervisor, or a specialized therapist being 

present[.] 

7 On appeal, Mother claims the judgments entered by District Court Judge Marvin Tyler were void ab initio 

because they were not drafted or signed by a sitting district court judge with jurisdiction. Judge Tyler 

retired effective January 2, 2023. The original Trial Order Regarding Best Interests was signed by Judge 

Tyler on December 30, 2022, and filed on January 3, 2023. The Amended Trial Order Nunc Pro Tunc was 

signed by Judge Tyler on January 1, 2023, and filed on January 3, 2023. The Second Amended Trial Order 

Nunc Pro Tunc was signed by Judge McKay on January 4, 2023, and filed on January 4, 2023. Even if we 

disregard the fact that the original Trial Order Regarding Best Interests and the Amended Trial Order Nunc 

Pro Tunc were signed by Judge Tyler prior to his retirement, and the subsequent amended order only 

corrected clerical errors, there is no jurisdictional issue here. 

Subject matter jurisdiction resides with the court, not the judge. See Fleet v. Guyette, 2020 WY 

78, ¶ 15, 466 P.3d 812, 817–18 (Wyo. 2020) (“The existence or non-existence of a court’s subject matter

jurisdiction is a question of law that we review de novo. Subject matter jurisdiction is ‘the power to hear 

and determine the matter in controversy between the parties.’ A district court’s subject matter jurisdiction

is invoked with the filing of a pleading ‘stating a case belonging to a general class over which the authority 

of the court extends.’” (citations omitted)); W.R.C.P. 60(a) (“The court may correct a clerical mistake or a 

mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the 

record. The court may do so on motion or on its own, with or without notice.”). The Second Amended 

Trial Order, appealed here, was entered by the then-presiding judge, Judge McKay, on January 4, 2023, the 

day after she took office. 
10

[¶27] Both Mother and Father appeal, arguing the district court failed to provide sufficient 

reference to the record to support its conclusions and abused its discretion when, among 

other things, it failed to designate a final decision-maker to undo the impasse preventing 

resolution of WGD’s health issues. Additional facts will be addressed as relevant to the 

discussion of the parties’ issues. 

STANDARD OF REVIEW 

[¶28] “Child custody and visitation are within the sound discretion of the trial court.” 

Castellow v. Pettengill, 2021 WY 88, ¶ 7, 492 P.3d 894, 897 (Wyo. 2021) (citing Bruce v.

Bruce, 2021 WY 38, ¶ 12, 482 P.3d 328, 332 (Wyo. 2021) (quoting Edwards v. Edwards, 

2020 WY 35, ¶ 10, 459 P.3d 448, 450 (Wyo. 2020))). “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 or capriciously.” Evans v. Sharpe, 2023 WY 55, ¶ 25, 530 P.3d 298, 

307 (Wyo. 2023) (quoting Johnson v. Clifford, 2018 WY 59, ¶ 8, 418 P.3d 819, 822 (Wyo. 

2018)). “A district court does not abuse its discretion if it could reasonably conclude as it 

did.” Sears v. Sears, 2021 WY 20, ¶ 13, 479 P.3d 767, 772 (Wyo. 2021) (quoting Johnson, 

¶ 8, 418 P.3d at 822). 

[¶29] Judicial discretion is not absolute: 

Abuse occurs when a material factor deserving significant 

weight is ignored, when an improper factor is relied upon, or 

when all proper and no improper factors are assessed, but the 

court makes a serious mistake in weighing them. 

Ianelli v. Camino, 2019 WY 67, ¶ 21, 444 P.3d 61, 66–67 (Wyo. 2019) (quoting Love v.

Love, 851 P.2d 1283, 1291 (Wyo. 1993) (quoting Vanasse v. Ramsay, 847 P.2d 993, 996 

(Wyo. 1993))). 

[¶30] We review the record to determine if sufficient evidence supports “the district 

court’s decision, and we afford the prevailing party every favorable inference while 

omitting any consideration of evidence presented by the unsuccessful party.” Bruce, ¶ 12, 

482 P.3d at 332 (quoting Edwards, ¶ 10, 459 P.3d at 450). “[I]n every case, the record 

must support the district court’s determination that the modification is in the children’s best 

interests through ‘the proceeding transcripts, by opinion letter, or as findings in the written 

order’ to allow appellate review.” Ianelli, ¶ 21, 444 P.3d at 66–67 (quoting Booth v. Booth, 

2019 WY 5, ¶ 22, 432 P.3d 902, 910 (Wyo. 2019) (quoting Jackson v. Jackson, 2004 WY 

99, ¶ 15, 96 P.3d 21, 26 (Wyo. 2004))). “We review the district court’s conclusions of law 

de novo.” Castellow, ¶ 7, 492 P.3d at 897 (citing Meiners v. Meiners, 2019 WY 39, ¶ 8, 

438 P.3d 1260, 1266 (Wyo. 2019)). 
11

DISCUSSION 

I. The district court abused its discretion when it denied a Rule 35 psychological 

evaluation of Mother and prohibited inquiry into Mother’s mental health during 

the Second Phase of trial. 

[¶31] Father claims the district court erred when it denied the GAL’s motion for a Rule 

358 evaluation and found the facts surrounding Mother’s mental health were irrelevant 

because the Custody Modification Trial would only focus on the “best interests of the 

children, not [Mother].” He also argues the district court abused its discretion when it 

denied him the opportunity to present evidence related to Mother’s current mental health 

by prohibiting the introduction of evidence grounded in the records of Mother’s stricken 

experts. 

[¶32] In custody cases, a child’s best interests are paramount, and the district court is 

required to consider “[t]he current physical and mental ability of each parent to care for 

each child.” Wyo. Stat. Ann. § 20-2-201(ix). 

[¶33] Relevant evidence is “evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” W.R.E. 401; Stevens v. Anesthesiology Consultants 

of Cheyenne, LLC, 2018 WY 45, ¶ 47, 415 P.3d 1270, 1286 (Wyo. 2018). 

[¶34] Although a custody determination does not create an automatic right to a 

psychological evaluation, good cause may exist to compel a psychological evaluation when 

there are “verified allegations that the parent in question is having mental problems that 

could substantially impact his or her ability to properly raise children.” Wade v. Wade, 124 

So. 3d 369, 375 (Fla. Dist. Ct. App. 2013) (citing In re G.D., 870 So. 2d 235, 238 (Fla. 

Dist. Ct. App. 2004) (a parent’s mental state is not “at issue” until there are pertinent 

allegations of mental insufficiency)). 

8 Father has standing to appeal denial of the GAL’s Rule 35 Motion. W.R.C.P. 10(c) provides: 

(c) Adoption by Reference; Exhibits.—A statement in a pleading may 

be adopted by reference elsewhere in the same pleading or in any other 

pleading or motion. A copy of a written instrument that is an exhibit to a 

pleading is a part of the pleading for all purposes. 

Here the GAL filed a Rule 35 Motion, Father joined this motion by a separate written pleading

where he specifically adopted the history and grounds of the GAL’s motion and separately asked for relief. 

Father’s joinder complied with the requirements of Rule 7. Cf., In re Est. of Smith, 555 N.E.2d 1111, 1114 

(Ill. App. Ct. 1990) (“Lifecare does not have standing to pursue an appeal of this portion of the circuit 

court’s ruling, because the motion was not Lifecare’s but was the executor’s, and Lifecare did not join in 

the motion.”); Goodman v. Stancell, 368 N.Y.S.2d 274, 275 (App. Div. 1975) (Bank did not join in the 

motion made by defendant Stancell and has no standing to appeal from the denial of defendant Stancell’s 

motion.).
12

[¶35] The record contains facts and allegations that would support Father’s contention that 

Mother’s mental health could substantially impact her ability to properly supervise the 

children. These include the GAL’s claims that the original evaluation, conducted by Dr. 

Monaghan, was not based on objective criteria, that Mother had failed to disclose material 

information about her past mental health treatment to Dr. Monaghan, and the parties’ 

dispute over the veracity and reliability of Mother’s medical records. 

[¶36] Mother’s mental health is directly relevant to whether a change in visitation is in the 

children’s best interest. Mother’s motion for modification was based on her mental health 

improvement over the time since the divorce decree and relied, in large part, on Dr. 

Monaghan’s testimony which was stricken from the Custody Modification Trial. The 

district court erred when it found Mother’s mental health was not relevant to the best 

interests of the children. On remand, a mental health evaluation should be ordered and 

appropriate mental health evidence admitted.

II. The district court’s Rule 52(a)(1)(A) findings of fact are sufficient as to custody 

but insufficient to support its visitation determinations. 

[¶37] Both parties claim the district court failed to comply with Father’s Rule 52 request 

for specific findings of fact as they pertained to the district court’s final decisions on child 

custody and visitation. They point specifically to the district court’s decisions to continue 

joint legal custody of Mother and Father, with primary physical custody to Father, and the 

refusal to award either party final decision-making authority. Father separately asserts the 

district court failed to comply with his Rule 52 request related to its decision to modify 

visitation and removal of the requirement for qualified caregivers for WGD. To determine 

sufficient compliance with the requirements of Rule 52, we must look to the rule’s intent 

and apply the rule to the factual findings and conclusions disputed by the parties. 

A. Rule 52(a)(1)(A) 

[¶38] Wyoming Rule of Civil Procedure 52(a)(1)(A) provides: 

(a) General and Special Findings by Court.— 

(1) Trials by the Court or Advisory Jury.— Upon 

the trial of questions of fact by the court, or with an 

advisory jury, it shall not be necessary for the court to 

state its findings, except generally for the plaintiff or 

defendant. Findings of fact and conclusions of law are 

unnecessary on decisions of motions under Rule 12 or 

56 or any other motion except as provided in Rule 52(c).
13

(A) Requests for Written Findings.— If one 

of the parties requests it before the introduction 

of any evidence, with the view of excepting to 

the decision of the court upon the questions of 

law involved in the trial, the court shall state in 

writing its special findings of fact separately 

from its conclusions of law[.] 

W.R.C.P. 52(a)(1)(A). 

[¶39] “The purpose of Rule 52(a) is ‘to indicate the factual basis for the decision on the 

contested matters.’” Castellow, ¶ 10, 492 P.3d at 898 (quoting O’s Gold Seed Co. v. United 

Agri-Prods. Fin. Servs., Inc., 761 P.2d 673, 676 (Wyo. 1988)). 

To play fair, a trial judge relying on discretionary power should 

place on record the circumstances and factors that were crucial 

to his determination. He should spell out his reasons as well as 

he can so that counsel and the reviewing court will know and 

be in a position to evaluate the soundness of his decision. 

Id. (quoting Kimzey v. Kimzey, 2020 WY 52, ¶ 38, 461 P.3d 1229, 1241 n.2 (Wyo. 2020)). 

The court’s findings “do not need to be elaborate.” Id. However, they do need to “be clear, 

specific and complete in concise language informing the appellate court of the underlying 

bases for the trial court’s decision.” Id. (quoting O’s Gold, 761 P.2d at 676). 

1. The District Court’s Factual Conclusions and Reasonable Inferences 

[¶40] The factual findings related to the district court’s conclusion that a modification of 

the Decree was warranted are: 

6) Both parties need to play an active, mature role in each 

of [the] children’s lives. 

7) As to the factor of the quality of the relationship each 

child has with each parent under Wyo. Stat. Ann. § 20-2-

201(a)(i): 

 The [Father] is, and has been, the primary caregiver for 

each of the children before entry of the Decree and thereafter 

under the terms of the Decree. He uses this role as a means of 

exerting control over [Mother’s] ability to strengthen her 

relationship with the children. He and each child share a very 

strong, close, and loving relationship. 
14

Certain provisions in the Decree regarding parenting 

time have stunted the quality of relationship which has existed 

between [Mother] and the children. Also, other provisions in 

the Decree have inhibited the quality of relationship [Mother] 

has with WGD (e.g., requirements for caregivers, restrictions 

upon [Mother] to drive alone with WGD, etc.). Despite these 

barriers, [Mother] has a strong, loving relationship with WGD. 

She and SMD share a very strong, close, and loving 

relationship. The children truly seek to have a good quality 

relationship with [Mother]. 

The Court finds it is in the best interests of each child 

that each child have a close, strong, and loving relationship 

with each parent. The Court intends to modify the Decree to 

allow [Mother] and each child to improve a better quality 

relationship. 

8) Regarding the factor as to the ability of each parent to 

provide adequate care for each child throughout each period of 

responsibility, including arranging for each child’s care by 

others as needed pursuant to Wyo. Stat. Ann. § 20-2-201(a)(ii): 

 [Father] has provided adequate and appropriate care for 

each child throughout the time that each child has been in his 

primary physical custody and control. He and his girlfriend 

have lived together for several years. He and the children rely 

upon [Father’s] girlfriend to provide care and supervision. 

[Father] has employed caregivers to assist in providing for 

WGD’s special needs. 

 [Mother] is capable of providing adequate care for the 

children, however the Decree’s stringent requirements for her 

to provide caregivers for WGD have become more onerous 

than necessary. The Court intends to modify the Decree in this 

respect. 

9) As to the factor of the relevant competency and fitness 

of each parent under Wyo. Stat. Ann. § 20-2-201(a)(iii): 

Both parents are generally fit and competent parents. 

[Father] has consistently challenged [Mother’s] competency 

and fitness by relying upon testimony and evidence from the 
15

divorce trial, suspicion, and conjecture despite the findings and 

conclusions in this Court’s August 19, 2021, Order After Trial 

on Material Change of Circumstances. 

10) As to the factor of each parent’s willingness to accept 

all responsibilities of parenting, including a willingness to 

accept care for each child at specified times and to relinquish 

care to the other parent at specified times under Wyo. Stat. 

Ann. § 20-2-201(a)(iv): 

Both parties generally comply with the Decree on this 

issue. 

11) Regarding the factor of how the parents and each child 

can best maintain and strengthen a relationship with each other 

pursuant to Wyo. Stat. Ann. § 20-2-201(a)(v): 

Quite simply, both parties need to recognize that their 

ability to co-parent, communicate, and cooperate are mandated 

to provide for the best interests of each child. Both parents lack 

the insight to do anything about this. The offender need only 

look no further than his or her mirror. The 2018 Decree 

implemented some processes for the parents to accomplish 

this, but instead they persist in widening the chasm. See

Matters Reviewed, Considered, and Disregarded, supra.

[9]

9 Matters Reviewed, Considered, and Disregarded refers to a provision in the Final Order where the district 

court described the parameters of its review. There it affirmed it had considered “all of the matters of 

Record in this case pertaining to the second phase of trial” and the “admissible, credible, reliable, and 

relevant sworn testimony” and “evidence.” It then generally addressed the matters it did not consider, 

saying: 

At Trial, there was inadmissible evidence and testimony, hearsay 

testimony, and some speculation introduced, or attempted to be 

introduced, by the parties. No inadmissible evidence and testimony, 

hearsay testimony, or speculation were given any weight by the Court in 

reaching its decision(s), and no inadmissible evidence and testimony, 

hearsay testimony, or speculation proved or disproved any material fact in 

controversy. Moreover, the Court did not consider or rely upon any 

extraneous matter, including attachment, document, record, or submission 

which was not “admissible” and/or admitted at Trial.

Specifically, the district court said it: 

disregarded [Father’s] Motion to Strike [Mother’s] Reply Pleadings Filed 

on December 5, 2022, or, in the Alternative Provide [Father] 10 Days to 

Respond to [Mother’s] Pleadings and the Guardian Ad Litem’s Motion to 

Strike [Mother’s] Pleadings because [Mother] bears the burden of proof 
16

12) As to the factor of how the parents and each child 

interact and communicate with each other and how such 

interaction and communication may be improved under Wyo. 

Stat. Ann. § 20-2-201(a)(vi): 

Quite simply, both parties need to recognize that their 

ability to co-parent, communicate, and cooperate are mandated 

to provide for the best interests of each child. Both parents lack 

the insight to do anything about this. The offender need only 

look no further than his or her mirror. The 2018 Decree 

implemented some processes for the parents to accomplish 

this, but instead they persist in widening the chasm. See

Matters Reviewed, Considered, and Disregarded, supra. 

Both parties realize that they must cooperate and communicate 

to promote the best interests of each of their children, but until 

they resolve their personal disputes, the Court is skeptical 

regarding their acceptance of their need to do so constructively.

13) As to the factor of the ability and willingness of each 

parent to allow the other to provide care without intrusion, 

respect the other parent’s rights and responsibilities, including 

the right to privacy under Wyo. Stat. Ann. § 20-2-201(a)(vii): 

Quite simply, for years neither parent has been capable 

of demonstrating a willingness to allow the other to provide 

care without intrusion, respect the other parent’s rights and 

responsibilities, including the right to privacy. 

14) As to the factor of the geographic distance between the 

parents’ residences under Wyo. Stat. Ann. § 20-2-201(a)(viii): 

 [Father] and the children reside in the Jackson area, 

approximately one mile apart. The proximity of the parents to 

each other exacerbates their ability to carry on their personal 

disputes. 

to show “that the modification [of the Decree] would be in the best 

interests of the children . . . .”

Other than the Motion to Strike, the district court does not refer to any evidence or testimony that

it considered or declined. 
17

15) Regarding the factor of the current physical and mental 

ability of each parent to care for each child pursuant to Wyo. 

Stat. Ann. § 20-2-201(a)(ix):

Each parent generally possesses the appropriate 

physical and mental ability to care for each child.

16) As to any other factors the court deems necessary and 

relevant under Wyo. Stat. Ann. § 20-2-201(a)(x):

See Matters Reviewed, Considered, and 

Disregarded,

[10] supra.

17) The Court considered other factors the Court deems 

necessary and relevant, including but not limited to, whether 

the best interests of each of the parties’ children, considering 

their special needs and conditions, would be adversely affected 

or promoted in approving a custody and a visitation 

arrangement in light of each parent’s present circumstances 

and living arrangements.

18) The Court does not prefer one parent as a custodian 

solely because of gender.

19) Pursuant to Wyo. Stat. Ann. § 20-2-201(c), the Court 

must consider any evidence of child abuse as being contrary to 

the best interests of each child. Each party has raised the 

specter that the opposite parent has engaged in child abuse 

(particularly involving WGD). None of such claims proved the 

existence of child abuse under the preponderance-of-evidence 

standard. There is ample circumstantial evidence that both 

parents have engaged in emotional abuse of their children, 

particularly SMD, by embroiling them in this endless, high 

conflict litigation.

20) This record does not support a conclusion that a shared 

custody arrangement would promote stability in each child’s 

environment and that it is in each child’s best interests to 

fashion such a plan. 

10 See supra note 9.
18

[¶41] In Castellow, we found that “[t]he district court set forth the factors at Wyo. Stat. 

Ann. § 20-2-201(a) that courts are to consider when determining a custody arrangement in 

the child’s best interest, but then failed to address them as they pertained to this case.” 

Castellow, ¶ 12, 492 P.3d at 899. Here the district court’s findings are lengthy, yet 

conclusory. Some of the district court’s findings comply with Rule 52, other key findings 

do not. Many lack reference to the record and in some instances the record does not support 

them. The findings support the district court’s decision on custody but are insufficient to 

support its decisions extending Mother’s summer visitation, removing the requirement that 

the Mother provide qualified caregivers for WGD, and failing to designate one of the 

parents as a final decision-maker. We address the insufficient findings in detail.

[¶42] In finding 7, the district court provided no facts, and we can find none in the record,

to support its conclusion that Father uses his role as primary caretaker “as a means of 

exerting control over [Mother’s] ability to strengthen her relationship with the children.” 

Similarly, we are not informed which provisions in the Decree unnecessarily “stunted the 

quality of relationship which has existed between [Mother] and the children.” The district 

court’s reference to the Decree’s therapeutic requirements for WGD’s caregivers does not 

explain how WGD’s needs have changed, and we can find nothing in the record to support 

the district court’s conclusion that this requirement should be vacated. 

[¶43] Finding 8 details Father’s appropriate care of the children since the time of the 

divorce and the children’s close relationship to both parents. It also states that the Decree’s 

“stringent requirements for [Mother] to provide caregivers for WGD” have become “more 

onerous than necessary.” While the record supports Father’s care of the children and their 

close relationship with both parents, it does not directly address Mother’s burden in 

providing caregivers. The finding provides no basis for this conclusion, and we are left to 

speculate about the district court’s reasons. In finding 9, the district court recites no facts 

to support its conclusion that Father relied solely on the divorce trial to challenge Mother’s 

competency and fitness and the record contradicts this finding. As discussed in this 

opinion, Father challenged Mother’s current competency by joining the GAL’s Rule 35 

Motion. 

[¶44] Findings 11, 12, and 13 contain conclusions or admonishments relating to the 

continued failings of both parents regarding an inability to communicate and work together 

in the best interests of the children. Nothing in these paragraphs reveals how the district 

court weighed each parent’s transgressions in reaching its modification decisions. In 

finding 17, the district court does not identify the “other factors” it “deem[ed] necessary 

and relevant” in reaching a decision in the best interests of the children, and we are unable 

to review these unidentified factors to determine whether they support the district court’s 

decision or are relevant to the best interests of the children. In finding 19, the district court 

asserts, “[t]here is ample circumstantial evidence that both parents have engaged in 

emotional abuse of their children, particularly SMD, by embroiling them in this endless,
19

high conflict litigation.” The finding lacks any citation to the record, and the record 

contains conflicting evidence on this question. 

[¶45] Father claims the lack of a sufficient basis for the district court’s conclusions 

requires this Court to remand the district court’s Final Order. He specifically challenges 

the basis for the decisions on (1) joint decision-making, (2) modification of visitation, (3) 

vacating the requirement for qualified caregivers for WGD, and (4) extending Mother’s 

summer visitation. Mother agrees that joint decision-making is unworkable and asserts the 

insufficient factual findings require a remand on the issue of primary physical custody or 

at least a shared custody arrangement. We address the district court’s custody and 

visitation decisions here and separately address the issue of medical decision-making infra 

¶¶ 54–62. 

a. Sufficient evidence supports the award of physical custody to Father. 

[¶46] Mother argues that the lack of sufficient findings under Rule 52 prevents this Court 

from determining whether the district court abused its discretion when it denied primary 

physical custody to Mother. We disagree. 

[¶47] On appeal, Mother did not argue that evidence introduced during trial demonstrated 

Father’s ongoing care of the children was deficient nor did she refer to evidence which 

supports the conclusion that a major change in the physical custody of the children would 

be more beneficial for them. 

[¶48] There are sufficient Rule 52 findings supported by the record to sustain the district 

court’s determination that a change in physical custody was not warranted. The district 

court found Father has been the primary physical custodian of the children since before the 

Decree and has provided adequate and appropriate care for each child throughout the time 

that each child has been in his primary physical custody and control. While Mother has 

improved her parenting skills which, in turn, has improved her relationship with the 

children, “[o]ur 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.” Walker v. Walker, 2013 WY 132, ¶ 21, 311 P.3d 170, 175–76 (Wyo. 2013) (quoting 

Hanson v. Belveal, 2012 WY 98, ¶ 13, 280 P.3d 1186, 1192 (Wyo. 2012)). On this issue, 

Father is the prevailing party. 

[¶49] “In custody modification proceedings, the party seeking to modify custody carries 

the burden of establishing that a material change of 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.” Kappen v. Kappen, 2015 WY 3, ¶ 11, 

341 P.3d 377, 381 (Wyo. 2015) (citing Jackson, ¶ 7, 96 P.3d at 23–24). Mother “cannot 

use W.R.C.P. 52(a) to challenge the district court’s order on any and all grounds.” 

Pettengill v. Castellow, 2022 WY 144, ¶ 21, 520 P.3d 105, 112 (Wyo. 2022). “If [s]he 
20

disagreed with the outcome, [s]he should have separately argued why the district court 

abused its discretion by awarding [Father] primary physical custody, analyzing the 

evidence under the appropriate standard of review.” Id. 

[¶50] The Rule 52 findings related to physical custody are sufficient. The district court 

did not abuse its discretion when it determined Mother failed to meet her burden to 

demonstrate a change in physical custody would be in the best interests of the children. 

b. The district court erred in failing to allocate a specific schedule for 

birthday visitations, in extending Mother’s summer visitation for two 

weeks with no weekend visitation for Father, and in removing the

requirement that Mother provides qualified caregivers for WGD. 

[¶51] Mother and Father assert the district court erred when it modified visitation 

requiring the parties to share the children’s birthdays without providing any further 

guidance. Father asserts the district court’s findings of fact are insufficient to support its 

decision that it is in the children’s best interests to increase Mother’s summer visitation 

without providing visitation for Father and in vacating the requirement that Mother provide 

qualified caregivers for WGD. 

[¶52] The district court’s primary duty in making custody and modification decisions is 

to serve the best interests of the children. See Kimzey, ¶ 18, 461 P.3d at 1236. 

[¶53] The Rule 52 findings contain no facts in support of the district court’s conclusions 

as they pertain to the modification of visitation and vacating the requirements for 

caregivers. For these reasons, on remand, visitation and the need for qualified caregivers 

must be reconsidered, and on reaching a decision, the district court must set forth sufficient 

findings of facts and conclusions of law in support of its decision pursuant to Rule 52. 

III. The district court abused its discretion in failing to designate one parent as a final 

decision-maker on issues of the children’s welfare, especially medical decisions. 

[¶54] Mother and Father both claim that the district court abused its discretion when it 

failed to resolve the impasse caused by their inability to reach an agreement regarding the 

children’s welfare—especially medical care. 

[¶55] The record contains abundant evidence of the parents’ inability to agree on many 

questions related to the children. Their inability to agree on medical treatment is 

particularly harmful to the children, especially WGD. As an example, for over a year, 

WGD’s doctors have concluded that his gait, which causes him to fall frequently and has 

caused him injury, requires extensive surgery. Mother continues to resist surgical 

intervention. WGD has yet to be treated for this problem. 
21

[¶56] Mother asserts, 

The Court has basically put a stalemate in place that does not 

allow for either of the parents to understand what steps must 

be taken for medical care for their special needs child when 

they don’t agree. The end result is that if it is non-emergency 

care then it may not happen and this would not be in the best 

interests of the minor child. 

We agree. 

[¶57] Wyo. Stat. Ann. § 20-2-201(d) provides: 

The court shall order custody in well defined terms to promote 

understanding and compliance by the parties. In determining 

custody a court shall not favor or disfavor any form of custody. 

Custody shall be crafted to promote the best interests of the 

children, and may include any combination of joint, shared or 

sole custody. 

Wyo. Stat. Ann. § 20-2-201(d) (LexisNexis 2023). 

[¶58] Here, the district court ordered: 

 The Court believes that it is in the best interests of each 

child that the parties shall have joint legal custody of their 

minor children. Joint legal custody means that both parents 

shall share in the responsibility for making major decisions 

about their children’s welfare, education, non-emergency 

healthcare, discipline, and religious training. Neither party 

shall have the right to make a decision over the view or 

decision of the other parent if the parties are unable to make 

any major joint decisions regarding their children’s welfare, 

education, non-emergency healthcare, discipline, and religious 

training. 

[¶59] Under Rule 52, the district court must spell out its reasons so that counsel and the 

reviewing court will be in a position to evaluate the soundness of its decision. Nothing in 

the district court’s findings supports its conclusion that the children’s best interests are 

served by its order on decision-making. Throughout these proceedings, the district court 

expressed its displeasure with the parents’ failure to reach any agreement over the welfare 

of the children. The parties agree animosity exists and has existed since the inception of 

the divorce proceedings—a period of more than seven years. 
22

[¶60] Despite this evidence and the district court’s well-documented skepticism as to the 

parties’ ability to address these issues in the future, the district court refused to resolve the 

problem. When two fit parents disagree, the court must provide a resolution to the dispute. 

Mills v. Fleming, 2017 ME 144, ¶¶ 7–10, 166 A.3d 1012, 1014–15. 

[¶61] We find the Maine Supreme Court’s reasoning in Mills instructive. There, Mother 

appealed the district court’s decision to give Father the final authority to determine the 

children’s participation in sports, claiming it violated her fundamental right to parent. The 

Maine Supreme Court said: 

When fit parents, who are parenting separately, cannot 

agree on an aspect of their shared parenting responsibilities, 

and cannot agree on a nonlitigation-based method of resolving 

that dispute, the court must undertake its responsibility to 

adjudicate the facts and provide a resolution to the dispute. 

Although a negotiated resolution by caring parents holds the 

potential for the best outcome for the children, the court must 

act when the parents cannot resolve their dispute. Absent the 

court’s availability for that dispute resolution, the uncertainty, 

discord, and continued stalemate between the parents would 

leave children, torn between those parents, in an untenable 

circumstance. Simply put, a court order that allows one parent 

to make the decision on a disputed child-related issue does not 

violate the constitutional rights of either parent. 

Mills, ¶ 10, 166 A.3d at 1015. See also Evans, ¶¶ 31–34, 530 P.3d at 309–10 (approving 

modification requiring Mother to obtain recommendations from three medical 

professionals in the event she and Father cannot agree on a major surgery, and otherwise 

final decision-making authority for the children’s healthcare resides with Mother subject 

to specific communication and consultation requirements). 

[¶62] The district court’s Rule 52 findings do not explain the district court’s decision, and 

we find no support for this disposition in the record. We vacate the district court’s Final 

Order as it relates to joint legal medical decision-making. On remand, the district court 

must resolve the parties’ medical decision-making stalemates. 

IV. The district court did not exceed its jurisdiction or violate Mother’s fundamental 

right to parent when it prohibited Mother from obtaining a psychological 

evaluation of her children. 

[¶63] Mother designated Dr. Turlington to conduct psychological examinations on both 

children and, without consulting Father, scheduled evaluations for “early March.” Father 
23

claimed the designation ran afoul of both W.R.C.P. 26(a)(2)(B)11 and 35(a). The district 

court granted Father’s motion and ruled that the appropriate remedy was to exclude the 

witness and prohibit the psychological evaluation. 

[¶64] Mother concedes the district court had jurisdiction to strike the witness and limit the 

evidence but argues the district court exceeded its jurisdiction and crossed a constitutional 

boundary by prohibiting Mother from obtaining a psychological examination of the 

children whether the expert testified or not. Mother cited MBB v. ERW, 2004 WY 134, 

¶ 9, 100 P.3d 415, 418–19 (Wyo. 2004) (“It is cardinal with us that the custody, care and

nurture of the child[ren] reside first in the parents . . . .” (quoting Nulle v. Gillette-Campbell 

Cnty. Joint Powers Fire Bd., 797 P.2d 1171, 1174 (Wyo. 1990))). She claims the district 

court’s order denied Mother her fundamental right to care for her children.12 

[¶65] She also claims the district court’s prohibition violated her constitutional due 

process right to present expert recommendations to the GAL, citing KES v. CAT, 2005 WY

11 W.R.C.P. 26(a)(2)(B) provides: 

Disclosure of Expert Testimony.— 

. . .

(B) Witnesses Who Must Provide a Written Report.—Unless 

otherwise stipulated or ordered by the court, if the witness is one retained 

or specially employed to provide expert testimony in the case or one whose 

duties as the party’s employee regularly involve giving expert testimony, 

this disclosure must be accompanied by a written report prepared and 

signed by the witness or a disclosure signed by counsel for the party. The 

report must contain:

(i) a complete statement of all opinions the witness will 

express and the basis and reasons for them; 

(ii) the facts or data considered by the witness in forming 

them;

(iii) any exhibits that will be used to summarize or support 

them;

(iv) the witness’s qualifications, including a list of all 

publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous four 

years, the witness testified as an expert at trial or by deposition; 

and 

(vi) a statement of the compensation to be paid for the study 

and testimony in the case.

W.R.C.P. 26(a)(2)(B). 12 Mother also asserts the district court’s later ruling on Mother’s Expedited Motion for Order Regarding 

Medical Decision-Making and Father’s Motion for Full Medical Authority to Make Medical Decisions for 

the Minor Children was a violation of her fundamental rights to parent. The district court denied both 

motions. The district court found the Decree did not provide one parent the ability to make a final decision 

regarding the health of the children over the protests of the other parent and held that a decision on this 

dispute prior to the trial would violate due process. The denial of the motions for medical authority was

based on the Decree’s award of joint legal custody where neither parent was given final decision-making 

authority. 
24

29, ¶ 16, 107 P.3d 779, 784 (Wyo. 2005) (“One of the basic elements of due process is the 

right of each party to be apprised of all the evidence upon which an issue is to be decided, 

with the right to examine, explain, or rebut such evidence.” (quoting Matter of SAJ, 942 

P.2d 407, 410 (Wyo. 1997))). 

[¶66] The original Decree awarded Mother and Father joint legal custody and required the 

parties to consult with each other before executing a medical decision. Mother has no 

fundamental or due process right to override the provisions of her Decree. 

 A judgment respecting parental rights and 

responsibilities does not implicate a parent’s fundamental right 

to parent unless it constitutes a state intrusion on that right. 

Such an intrusion may be found to exist when a judgment 

directly and substantially limits the parent’s decision-making 

authority and delegates an aspect of parental rights and 

responsibilities to a third party. 

Mills, ¶ 7, 166 A.3d at 1014 (citations omitted). “Courts deciding parental rights matters 

are regularly called upon to resolve disputes when dedicated, loving, and fit parents are 

unable to reach agreement . . . . Court resolution of [the] dispute[] . . . involve[d] no state 

intrusion on the parties’ right to parent.” Id. ¶ 8, 166 A.3d at 1014–15. 

[¶67] Mother did not consult with Father before arranging for the evaluation of the 

children. Mother’s decision to schedule a psychological examination of the children 

without consulting Father was a direct violation of the Decree. Mother’s fundamental right 

to parent was not affected when the district court prevented Mother from conducting an

evaluation for the purpose of securing evidence for trial. 

V. The district court abused its discretion when it refused to consider allegations of 

Mother’s psychological abuse of one child after the evidence closed.

[¶68] Father claims the district court abused its discretion in failing to consider the GAL’s 

Emergency Motion to Suspend [Mother’s] Visitation Until Further Order filed after trial, 

but before the district court entered its Final Order. 

[¶69] This motion was predicated on events that began during Mother’s visitation with 

SMD on Wednesday, December 7, 2022. On December 8, 2022, Mother sent a text 

message to Father and the GAL stating SMD had expressed suicidal thoughts to Mother 

during their visit the previous evening (Wednesday). Mother said she had shared this 

information with SMD’s school principal. The principal met with SMD and determined 

there was no threat of self-harm and notified both parents of this conclusion. 
25

[¶70] Dissatisfied with the school’s response, on Saturday, December 10, during Mother’s 

weekend visitation, she took SMD to the Jackson Police Department to report that SMD 

would be endangered if she returned to Father’s home. While in SMD’s presence, Mother 

discussed her “personal history and experiences” with Father including allegations of 

physical and psychological abuse. After an investigation of Mother’s concerns, the case 

was closed for lack of cause.

[¶71] Dissatisfied with the police response, on Sunday, December 11, 2022, Mother 

brought SMD to the emergency room for suicidal concerns, specifically, Mother alleged 

SMD would kill herself if she had to return to Father’s home that evening. After an

evaluation by the doctor, an emergency assessment “related to the risk for harm to self and 

recommendations for safety planning” by the hospital on-call counselor, and a lengthy 

observation, hospital personnel documented their concerns that SMD had been coached to 

express suicidal ideation and discharged her to her Father. 

[¶72] In each of these interviews, Mother, in front of SMD, discussed Father’s physical 

and mental abuse towards Mother (which had been litigated and found unsupported), 

Mother’s own attempted suicide, and Mother’s fear that Father was causing harm to SMD.

[¶73] The district court denied the motion in its Second Amended Trial Order. After 

discussing the parents’ inability to communicate and chastising the parties for flooding the 

district court with numerous motions, the district court stated: 

 Even after the Trial was completed and before the Court 

could make its determinations, the turmoil was further stoked 

with the Guardian Ad Litem’s Emergency Motion to Suspend 

Plaintiff’s Visitation Until Further Order, and the inevitable 

onslaught of Responses, Replies, and Supplements. Needless 

to say, these inane pleas for court intervention are deemed 

automatically denied for reasons which have been previously 

explained to the attorneys[13] and which are well-known to 

them. All of these filings and claims for relief are disregarded. 

[¶74] “We review the denial of a post-trial motion for abuse of discretion.” Aimone v.

Aimone, 2023 WY 43, ¶ 50, 529 P.3d 35, 48 (Wyo. 2023), reh’g denied (June 6, 2023) 

(citations omitted). At the time the motion was filed, no final order had been entered, and 

no judicial determination which might be considered a final order had been made. “[T]he 

district court was free to revise its [decision] prior to judgment, and could have heard the 

pre-judgment motion . . . .” Parris v. Parris, 2009 WY 44, ¶ 17, 204 P.3d 298, 303–04 

(Wyo. 2009) (citing Steranko v. Dunks, 2009 WY 9, ¶ 6, 199 P.3d 1096, 1096–97 (Wyo. 

13 Prior to the district court’s final ruling, it had warned the parties that any motion containing the words

“Emergency” or “Expedited” or other words of urgency would “automatically be deemed DENIED.”
26

2009); Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo. 1987)). The best interests of 

the children are paramount in making custody and visitation decisions. Arnott v. Arnott, 

2012 WY 167, ¶ 31, 293 P.3d 440, 454 (Wyo. 2012). 

[¶75] Upon review of the materials in the GAL’s supplemental filing, we do not find the 

GAL’s motion “inane” or that its purpose was to “stoke” the “turmoil.” The GAL’s 

supplemental information describes exigent circumstances calling into question SMD’s 

health and safety during Mother’s visitation. The district court abused its discretion in 

denying the GAL’s post-trial motion without considering its merits. On remand, the district 

court should consider the merits and relevance of the GAL’s motion. 

CONCLUSION 

[¶76] The district court abused its discretion when it denied the GAL’s motion for a Rule 

35 examination, excluded evidence related to Mother’s mental health, failed to designate a 

final decision-maker, and refused to consider the GAL’s emergency motion. It did not 

abuse its discretion when it declined Mother’s invitation to modify physical custody of the 

children, nor did it exceed its jurisdiction when it prohibited Mother from obtaining a 

psychological evaluation of the children. Affirmed in part, reversed in part, and remanded 

for further proceedings consistent with this opinion.