### IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 139

OCTOBER TERM, A.D. 2021

December 2 2 , 2021

AUSTIN GUTIERREZ f/k/a AUSTIN BRADLEY,

Appellant (Defendant),

v.

JEFFREY G. BRADLEY,

Appellee (Plaintiff). S

- 21

- 0079

Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge

Representing Appellant: H. Michael Bennett of Corthell and King, P.C., Laramie, Wyoming.

Representing Appellee: No appearance.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, 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 BOOMGAARDEN, Justice

[¶ 1 ] Austin Gutierrez (Mother) appeals the district court’s child custody modification order awarding Jeffrey G. Bradley (Father) primary physical cust ody of their two children.

Mother contends the court abused its discretion when it determined a material chan ge in

circumstances had occurred that warranted re consideration of the existing child custody

order , and when it failed to adequ ately consider the children’s sibling relationships in its best interests analysis. Father did not file a brief. We affirm.

ISSUES

[¶ 2 ] We re phrase Mothe r’s issues as:

I. Did the district court abuse its discretion by finding a material change in circumstances had occurred that

warranted reconsideration of child custody?

II. Did the district court abuse its discretion by failing to adequately consider the children’s sibling relationships in its best interests analysis?

FACTS

[¶3 ] Mother and Father , who married in 2009 , share two minor children : QGB born in 2009, and KJB born in 2010. During the marriage, the parties lived in Laramie, Wyoming. In January 2016, the parties entered into , and the court accepted, a stipulated divorce decree

that award ed them joint legal

, physical , and residential custody of the children. T he y agreed to an alternating two

- week visitation s chedule structured around Father’s work

travel

.

[¶4 ] Shortly after the divorce, Father remarried

. Father and his wife had another child, BB, in 2016. In 2 017, Mother moved to Cheyenne and also remarried. Mother’s husband

ha d one daughter , JG, from a previous relationship , and Mother and her husband ha d their

first child , GG, in 2018.

[¶5] Mother filed a petition to modi fy child custody when she moved to Cheyenne

. The

court granted Mother’s petition in April 2018. First, i t found that her move constituted a material change in circumstances because the alternating two

- week visitation schedule

became “simply not workable” and “detrimental” to the children. 1 Then, i t determined it

1 After Mother moved to Cheyenne, the two

- week visitation schedule meant that, during Mother’s visitation, the children were commuting to Laramie from Cheyenne every day for school and extra

-2 was in the children’s best interests for the parties to share joint legal custody and for Mother

to have primary residential custody 2 subject to Father’s liberal visitation. 3

[¶ 6 ] Father filed the custody modification petition at issue in July 2020. His petition

contend ed that a material change in circumstances had occurred in that: the children had expressed a desire to live with Father ; Father had moved to Evans, Colorado to be closer

to work and now was able to be home every night ; Mother had created instability in the children’s lives by moving three times since the last modification ; and Mother ha d hindered Father’s visitation, caused scenes with Father and his wife at school events , and failed to keep Father informed and involved with the children ’s lives , schooling, and appointments

. Father argued that it was in the children’s best interests that he be awarded primary

resident ial custody.

[¶ 7 ] In September 2020, Mother ’s family relocated to Artesia, New Mexico due to her

husband’s job transfer

. Mother and her husband welcomed another child

, SG , s ometime

thereafter

.

[¶ 8 ] The court held a hearing on Father’s petition in January 2021. The children testified

first

. QGB discussed the move t o New Mexico and expressed a desire for things to be like they were before when his parents lived closer. Although he had nothing negative to say

a bout life at Mother’s, when asked what he like d about being at Father’s he answered that they “do a lot more activities ” there, they “do more things as a family[,]” and he is “ happier

there sometimes

. ” KJB did not state a preference to reside with either parent

.

[¶ 9 ] Father testified next. He expressed some frustrations with Mother’s co

- parenting

since the 2018 custody modifi cation

. Specifically, Mother had moved several times since

then and she did not always keep Father informed of those moves. Father also discussed

instances whe n Mother was inflexible regarding visitation

, failed to include him on school forms and thereby made it difficult for him to access information

, and di d not allow him to help out with the children’s medical appointments and needs

. Additionally, Mother and

her husband had caused two public scenes by yelling at Father and his wife in front of the

children at school event s

.

curriculars. The court found that “[i]t does not serve the best i nterests of the children to spend their time in such a manner, sometimes on dangerous roads and in poor weather conditions.”

2 The court found that both parents were competent and fit, both had a solid and loving relationship with the children, both were involved in the children’s lives and had demonstrated an ability to care for the children. It recognized that Mother had had a period of instability that seemed to have been resolved. It also made clear in its order that Father’s rotating two

- week work schedule weighed heavily in its decision to award Mother primary residential custody.

3 During the two

- week periods when Father was not working, he was entitled to two weekday visits from 3:00 p.m. to 7:00 p.m., and weekend visits from Friday afternoon t hrough Sunday. Father was also entitled to summer and holiday visits as outlined in the court’s order.3 [¶ 10 ] Father was particularly concerned about Mother’s latest move to New Mexico and

the nine

- hour distance it created between him and the children. Since Mother ’s move, Father had only seen the children for T hanksgiving and half of Christmas break , and he felt

that his communication with them was otherwise strained

. Father wanted to see the children more, and b ecause the ir schooling in New Mexico was online due to COVID

- 19

, Father asked Mother if the y could return to the rotating two

- week visitation schedule , but

this did not occur

. Father expressed concern for the children because he felt like the y were forced to keep information from him regarding Mother and their life at her home

. He

feared that

, if the current situation continued, KJB w ould “ continue to have a wall [ up ]” and QGB may begin “ to lash out [

. ]” Lastly, Father explained that awarding him custody

would allow the minor children to foster their relationship s with extended family because

both Father’s and Mother’s parents live in Laramie

, Wyoming, Father’s sister lives in Casper , Wyoming, and his wife’s family live s in Greeley and A rvada , Colorado.

[¶ 11 ] Mother testified that she and her husband we re renting their house in New Mexico

on a six

- month lease that they intended to renew for another six months. Mother explained

that the children ha d a structured routine during the week

, and that she wa s home all day to assist with their online schooling

. Due to COVID

- 19

, the children were not participating

in many extracurriculars, but the family attended church together and Mother promoted other types of family activities. Mother conceded that her move to New Mexico had made

visitation harder

, and that

, at the time of the hearing, Father’s visitation primarily consisted of holidays. However, Mother stated she had never tried to interfere with Father’s visitation, and she encourage d the children to call him more

.

[¶ 12 ] Mother a dmitted that she had moved , at least once

, within Wyom i ng, without telling Father, and that she had submitt ed forms to the children’s schools that included contact information for only her and her husband. But Mother stated the se oversights were due to being busy, and that she never intend ed to interfere with Father’s access to school

information. Mother also acknowledged that her actions towards Father and his wife at the

two school events were embarrassing and not good examples of co

- parenting. As to the

children’s well

- being, Mother claimed that she mainly s aw them happy and excited.

[¶1 3 ] In closing, Father argued that a material change in circumstances had occurred in that Mother had continuously failed to foster a relationship between Father and the children, and Mother had relocated t he children to New Mexico. Mother argued that Father had failed to demonstrate a material change in circumstances. Each party maintained that

the children were close to the half

- and/or stepsiblings in his or her home and urged the

court to consider sibl ing separation in its best interests analysis. Mother suggested that the sibling relationships in her home, the children’s custodial home, should be considered more important. Each party asserted it was in the children’s best interest for him or her to h ave primary physical custody.4 [¶ 1 4 ] In a February 2021 order

, t he district c ourt found that Mother’s relocation to New

Mexico made the existing visitation schedule difficult, if not impossible

, and negatively impacted the children’s relationship with Father and therefore constituted a material change

in circumstances

. T he court then determined it was in the children’s best interests for the parties to share joint legal custody and for Father to have primary physical custody. Mother timely appealed.

STANDARD OF REVIEW

[¶ 1 5 ] Our standard of review for child custody modification decisions is well established.

We employ a two

- step analysis in determining a request for a change in custody or visitation. The first step requires a showing of a material change in circumstances since the most recent custody and/or visitation order. Once that is shown, the

court det ermines whether a change of custody and/or visitation is in the child[ ren ’s] best interests.

Hays v. Martin , 2021 WY 107, ¶ 21, 495 P.3d 905, 910 (Wyo. 2021) (quoting Lemus v.

Martinez

, 2021 WY 66, ¶ 17, 486 P.3d 1000, 1007 (Wyo. 2021) ; s ee Wyo. Stat. Ann . § 20

- 2

- 204(c) (LexisNexis 2021)

. “ We review a district court ’ s child custody modification ruling for an abuse of discretion. ” Hays , ¶ 21, 495 P.3d at 911 (citing Rush v. Golkowski

, 2021 WY 27, ¶ 36, 480 P.3d 1174, 1182 (Wyo. 2021) ). “A court does not abuse its

discretion unless it acts in a manner which exceeds the bounds of reason under the

circumstances.” Kimzey v. Kimzey , 2020 WY 52, ¶ 27, 461 P.3d 1229, 1238 (Wyo. 2020) (quoting Jacobson v. Kidd , 2018 WY 108, ¶ 14, 426 P.3d 813, 820 (Wyo. 2018))

. We

evaluat e “ the sufficiency of the evidence to support 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.” Id. (quoting Jacobson , ¶ 14, 426 P.3d at

820 ).

DISCUSSION

I. The court did not abuse its discreti on by finding a material change in

circumstances had occurred that warranted reconsideration of child custody.

[¶ 1 6 ] Because custody orders are subject to res judicata, the court must find that a material change in circumstances has occurred before i t can consider modifying a n existing child custody order. Id. ¶ 29, 461 P.3d at 1238 ( citing Bishop v. Bishop , 2017 WY 130, ¶ 11,

404 P.3d 1170 , 1173 (Wyo. 2017 ) )

. To be considered material and thereby justify reopening the order

, “ the change in circumstances must affect the welfare of the children.”

Id. (quoting Jacob son , ¶ 17, 426 P.3d at 821 ) ; see also Ianelli v. Camino , 2019 WY 67, ¶ 23, 444 P.3d 61, 67 (Wyo. 2019). The circumstances “ may h ave rel evance in [ the

children’s lives ] before there are outward signs of harm. ” Ianelli , ¶ 24, 444 P.3d at 675 (quoting Jacobson

, ¶ 19, 426 P.3d at 821 )

. “A district court ’ s finding concerning a material change in circumstances is principally a factual determination to which we accord great

deference.” Id. ¶ 23, 444 P.3d at 67 (citation omitted).

[¶17] Mother argues the district court abused its discretion when it found that her move to New Mexico constituted a material change in circumstances. Though Mother agrees that visitation should have been modified because her move “ made the current visitation

s chedule unworkabl e,” she claims that the circumstances did not warrant a change in custody.

[¶ 1 8 ] In Arnott v. Arnott we explained that a custodial parent ’s relocation “ and factors

‘ derivative ’ of that relocation may constitute a material change of circumstances

. ” Kimzey

, ¶ 31, 4 61 P.3d at 1239 ( quo ting Arnott v. Arnott , 2012 WY 167, ¶ 40, 293 P.3d 440, 458 (Wyo. 2012) ) ; see also Cook v. Moore

, 2015 WY 125, ¶ 8, 357 P.3d 749, 752 (Wyo. 2015)

. The Arnott factors include:

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

Cook , ¶ 10, 357 P.3d at 752 ( quo ting Arnott , ¶ 39, 293 P.3d at 458 ). T hese factors are meant to provide guidance regarding circumstances courts may consider when a party claims a material change in circumstances due to the custodial parent’s relocation

. Id. ¶ 11,

357 P.3d at 752

. T he court need not address every factor or specifically rule on each factor

“as long as there is some indication it considered them

. ” Kimzey , ¶ 38, 461 P.3d at 1241 ; see also Cook

, ¶ ¶ 11

– 12 , 357 P.3d at 753.

[¶ 1 9 ] The record certainly indicates the district court considered the Arnott factors.

Examin ing the circumstances of this case, the court determined that Mother ’ s move to New

Mexico “will certainly cause, and has already created, difficulties (if not impossibilities) involving the exercise of current visitation

. ” It also found that the move ha d negatively impacted the children’s relationship with Fathe r , as the parties struggled to maintain visitation given the nine

- hour distance between their homes

. It recognized that QGB had indicated a preference to live with Father. And it found there was “absolutely no evidence ”

that the children’s lives would “be enhanced economically, emotio nally [

, ] or educationally by the move” to New Mexico

.

[¶ 20 ] A ddition ally

, the court determined that while Mother ’s multiple moves decreased stability in the children’s lives, Father’s stability had increased since he relocated to

Colorado to be closer to his job of 10 years

. I t found that the parties had “ suffered from a6 deterioration in co

- parenting and parental communication, particularly with respect to [Mother] failing to foster an open relationship between the minor children and [Father

. ] ”

T he court observed that, due to the deterioration of parental communication, “ [ t ] he minor children currently feel unable to be open and free about their relationships with both parents, to the point where they express anxiety about disclosing information to the other parent[.]” And it noted that the move to New Mexico had negatively impact ed the children’s relationships with their extended family

, relationships that could be fostered by

a primary placement with Father

.

[¶ 2 1 ] As to Mother’s argument that the district court should have reconsidered only

visitation

, it fails for the same reasons we have rejected such arguments before. See Ianelli

, ¶

¶ 25

– 26 , 444 P.3d at 67

– 68 ; Booth v. Booth , 2019 WY 5, ¶ 21, 432 P.3d 902, 909 (Wyo. 2019)

. We have previously explained that if the court f i nd s a material change in

circumstances has occurred

, it is then “ required to make an independent determination about what, if any, modification is in the children ’ s best interest.” I anelli

, ¶ 26, 444 P.3d

at 67

– 68 ( quo ting Booth , ¶ 21, 432 P.3d at 909). Thus, when the court finds a material change

, it may properly review both custody and visitation to determine wh ether

modification of the existing order is warranted. Ianelli , ¶ 26, 444 P.3d at 68.

[¶2 2 ] The district court evaluated the evidence

, and adequately assessed whether the change in circumstances was material in accordance with our precedent. We are satisfied

it did not abuse its discretion in determining that a material change in circumstances had

occurred.

II. The district court adequately considered the children’s sibling relationships in its best interests analysis

.

[¶ 2 3 ] Once a court has found a material change in circumstances, it must determine what custody arrangement is in the children’s best interests

. See Hays , ¶ 21, 495 P.3d at 910 ( citing Lemus , ¶ 17, 486 P.3d at 1007)

. This requires consideration of the factors set forth

in Wyo. Stat. Ann. § 20

- 2

- 201 (a)

. 4 Walsh v. Smith

, 2020 WY 25, ¶ 13 , 458 P.3d 58, 64

4 “ In determining the best interests of the child, the court shall consider, but is not limited to, the following

factors ” :

(i) The quality of the relati onship each child has with each parent; (ii) 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; (iii) The relative competency and fitness of each parent; (iv) 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; (v) How the parents and each child can best m aintain and strengthen a relationship with each other;7 (Wyo. 2020)

. Separation of sibling s is a non

- statutory factor courts also must consider

, together with other non

- statutory factors such as primary caregiver status and a child’s custodial preference

. See Ianelli , ¶ 27, 444 P.3d at 68 (collecting cases). “No single factor

is determinative [

. ]” Id. ( quoting Martin v. Hart

, 2018 WY 123, ¶ 21, 429 P.3d 56, 63 (Wyo. 2018) )

. Rather, t he court “must look to the totality of the evidence ” to determine

what arr angement is in the children’s best interests

. Id. (citation omitted).

[¶ 2 4 ] In regard to sibling separation , “[w]e have consistently acknowledged a strong public policy in favor of preserving sibling relationships and ‘[k]eeping siblings together in the same household[.]’” I d. ¶ 30, 444 P.3d at 69 ( quo ting Paden v. Paden , 2017 WY 118, ¶ 19, 403 P.3d 135, 141 (Wyo. 2017) ). This policy is “equally applicable whether the children are full sibling, half [

- ] sibling, or stepsiblings.” Id. ( quo ting Aragon v. Aragon

, 2005 WY 5, ¶ 26, 104 P.3d 756, 764 (Wyo. 2005) ). W e have instructed district courts to “articulate the reasons supporting any decision to separate siblings to assure that a ‘comprehensive evaluation of all relevant factors occurred’ prior to the custody

d etermination.” Id. (cit ation omitted). And we have cautioned trial counsel that they cannot remain passive on the issue , they “ must assist the trial judge in articulating on the record the relevant factors and their relative weight which, in the lawyer ’ s professional judgment, should act as a foundation for the [] court ’ s exercise of judicial discretion. ’” Id. (citing Paden , ¶ 19, 403 P.3d at 141 ).

[¶ 2 5 ] Though Mother did not request W.R.C.P. 52(a) findings, see Walsh , ¶ 17, 458 P.3d

at 65, she now takes issue with the district court’s terse analysis regarding the children’s sibling relationships

. The district court found:

QGB and KJB have half [

- ] siblings and/or stepsiblings at both parents’ homes. The evidence reflected that QGB and KJB are

clos e to all of their various siblings.

Without citing to authority, Mother argues that because the children had siblings in both

households , the court was required to make a more in

- depth analysis regarding sibling

s eparation

. She also contends that the sibling separation analysis should be focused on the

“ siblings within the home of the primary caregive r” in order to avoid “separating a familia l

(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved; (vii) The ability and willingness of each parent to allow the other to prov ide care without intrusion, respect the other parent ’ s rights and responsibilities, including the right to privacy; (viii) Geographic distance between the parents ’ residences; (ix) The current physical and mental ability of each parent to care for each child; (x) Any other factors the court deems necessary and relevant.

Wyo. Stat. Ann. § 20

- 2

- 201(a) (LexisNexis 2021).8 unit [

. ] ” S he claims that “ to simply disregard the relationships already formed and separate these sibling s [is] contrary to the standard of Aragon .”

[¶ 2 6 ] T he record makes clear that the district court did not disregard the children’s sibling relationships in its best interests analysis

— it found that close sibling relationships existed

at both parent’s homes

. Moreover, sibling separation “is just one of several factors courts consider in determining the primary issue

— the best interest s of the children.” See Aragon

, ¶ 24, 104 P.3d at 764 (citation omitted). The court further considered that QG B and KJB had strong relationship with both parents. In a ddition

, it found that Mother and Father were both competent and fit to parent; each could provide adequa te care

, w as willing to accept

all parenting responsibilities , and w as able to interact appropriately with the children

.

[¶27] However, t he court expressed some reservations about Mother’s ability to maintain a relationship with Father and found that Father had been the more accommodating parent.

The court also was conce rned that Mother seemed to exclude Father from the children’s lives, and that Mother had “ displayed some lack of judgment in handling family

- related situations[.]” It found that Father was the more stable parent overall

. I t also took into

consider ation QGB’s testimony in which he indicated a desire to live with Father

.

[¶ 2 8 ] Weighing all the required factors, the court determined tha t it was in the children’s

best interests to award primary physical custody to Father. See Paden , ¶ 21, 403 P.3d at

14 1

– 4 2 (concluding that the district court’s sibling separation findings, though not extensive, were adequate because when “ viewed in conjunction with the district court ’ s findings on the other relevant factors, they provide[d] us with a reason ed explanation for

the district court ’ s decision”); JCLK v. ZHB , 2015 WY 95, ¶ 19, 353 P.3d 720, 724 (Wyo. 2015) (affirming the district court’s custody decision despite a lack of explicit sibling separation findings because “its detailed analysis demonstrate [d] that it carefully considered the [child’s best interests], and determined that those interests would be served by awarding primary custody to Father”)

. T he record supports that decision

. The district

court did not abuse its discretion.

[¶ 2 9 ] Affirmed.