Brett L. Ruiz v. Phoenix A. Fribourg

                  THE SUPREME COURT, STATE OF WYOMING

                                            

                                                                   OCTOBER TERM, A.D. 2022

                                                                         December 13, 2022

 BRETT L. RUIZ,

 Appellant
 (Respondent),

 v.                                                                S-22-0085

 PHOENIX A. FRIBOURG,

 Appellee
 (Plaintiff).


                       Appeal from the District Court of Goshen County
                           The Honorable F. Scott Peasley, Judge

Representing Appellant:
      Eric E. Jones, Eric E. Jones, P.C., Wheatland, Wyoming.

Representing Appellee:
      Devon P. O’Connell and Paige J. Anderson of Pence and Macmillan, LLC, Laramie,
      Wyoming.


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.
FENN, Justice.

[¶1] Brett L. Ruiz appeals the district court’s order relinquishing jurisdiction over a child
custody dispute to Texas pursuant to Wyoming Statute § 20-5-307 (LexisNexis 2022). He
argues the district court abused its discretion when it found Wyoming was an inconvenient
forum, and he contends the procedure used in this case violated his right to due process.
We affirm.

                                          ISSUES

[¶2]   Mr. Ruiz presents two issues on appeal. We rephrase the issues as follows:

              I.     Did the district court abuse its discretion when it found
                     Wyoming was an inconvenient forum and relinquished
                     jurisdiction to Texas pursuant to the Uniform Child
                     Custody Jurisdiction and Enforcement Act?

              II.    Did the district court deny Father his due process rights
                     when it entered the Uniform Child Custody Jurisdiction
                     and Enforcement Act order without requiring the parties
                     to file written pleadings in Wyoming?

                                          FACTS

[¶3] The facts surrounding this appeal span several years. Phoenix Fribourg (Mother)
and Brett L. Ruiz (Father) were never married, but they are the parents of one child, EDR,
born in January 2017. Less than a week after EDR’s birth, Mother filed a petition to
establish paternity, custody, and child support. In July 2017, Mother moved to Texas due
to her father’s failing health. In October of 2017, Mother notified the district court the
move was permanent. In January of 2018, the district court held a trial on the petition to
establish paternity. The district court subsequently entered an order establishing Father’s
paternity of EDR and awarding Mother primary custody of the child subject to Father’s
visitation rights.

[¶4] In January of 2019, Mother filed a petition to modify custody in Texas and asked
that the matter be transferred to Texas. The Wyoming district court held a Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) conference with the 45th Civil
District Court, in Bexar County, Texas, pursuant to Wyoming Statute § 20-5-210
(LexisNexis 2019). Both courts agreed Wyoming maintained continuing jurisdiction under
Wyoming Statute § 20-5-302 (LexisNexis 2019), and Wyoming was not an inconvenient
forum under Wyoming Statute § 20-5-307 (LexisNexis 2019). The district court denied
Mother’s request.



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[¶5] Over the course of the next two years, both Mother and Father filed order to show
cause petitions, which were resolved through a Stipulated Order on Motions for Order to
Show Cause (Stipulated Order). Paragraph five of the Stipulated Order stated: “[t]his order
shall not prevent any court from considering a change of venue/jurisdiction if appropriate
under the UCCJEA.” Additionally, the Stipulated Order stated: “[i]f Father violates this
Stipulated Order or if there is a material change in circumstance, Mother may petition that
the case be transferred to Texas.” The Stipulated Order also required both parents to
participate in “parent facilitation” with EDR’s counselor.

[¶6] In December 2021, four years after Mother and EDR moved to Texas, Mother
petitioned the district court in Texas to modify visitation and compel Father’s participation
in parenting facilitation. Mother did not file a pleading in the Wyoming case asking the
district court to relinquish jurisdiction. After receiving Mother’s petition, the Texas court
contacted the Wyoming court to set another UCCJEA hearing to discuss the issue of
jurisdiction. Both parties were present for the hearing and represented by counsel, and
both parties testified and made arguments regarding which state presented a more
convenient forum.

[¶7] During the hearing, Mother argued Wyoming was now an inconvenient forum.
Mother presented evidence EDR went to school in Texas, attended therapy in Texas, had
a pediatrician and dentist in Texas, had maternal grandparents who reside in Texas, and
had friends in Texas. Mother also argued Father had acquiesced to Texas having
jurisdiction by violating the Stipulated Order. Specifically, she alleged Father failed to
participate in parenting facilitation.

[¶8] Father argued Wyoming had continuing and exclusive jurisdiction. Father also
argued the district court could not transfer jurisdiction to Texas unless Mother showed the
child did not have a significant connection with Wyoming, and substantial evidence
concerning the child’s care, protection, training, and personal relationships was no longer
available in Wyoming. Father asserted EDR still had significant connections to Wyoming.
Father presented evidence EDR had a close relationship with her paternal grandparents
who live in Wyoming, had other extended family in Wyoming, and had friends at a
preschool she attended in Wyoming. Father admitted EDR did not have a dentist or
medical provider in Wyoming, and he had not attended parenting facilitation.

[¶9] Following arguments from both parties, the two district court judges participated in
an off-record discussion about which state presented a more convenient forum. Following
this discussion, the Wyoming court determined Wyoming was an inconvenient forum and
entered an order relinquishing jurisdiction to Texas in January 2022. Father timely
appealed.




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                                       DISCUSSION

   I. Did the district court abuse its discretion when it held Wyoming was an
      inconvenient forum and relinquished jurisdiction to Texas?

[¶10] “In child custody proceedings, ‘the determination of whether to exercise jurisdiction
or to defer to the courts of another state is reviewed for an abuse of discretion.’”
Pokrovskaya v. Van Genderen, 

, 

 (Wyo. 2021) (quoting
Symington v. Symington, 

, 

 (Wyo. 2007)). “‘If the
record includes sufficient evidence to support the district court’s exercise of discretion, we
will defer to that court and affirm its decision’ on inconvenient forum.” 

 (quoting
Symington, ¶ 7, 

).

[¶11] When a court of this state makes an initial custody decision, it has continuing subject
matter jurisdiction to enforce or modify the order subject to the provisions of the UCCJEA.
See 

(a) (LexisNexis 2021). The UCCJEA was adopted by the
Wyoming legislature in 2005 and controls jurisdiction over child custody and visitation
disputes. Pokrovskaya, ¶ 10, 

 (citing In re NC, 

, 

 (Wyo. 2013); 

). “It codifies both the common law
doctrine of forum non conveniens as it relates to child custody and the court’s continuing
subject matter jurisdiction to enforce or modify its original decrees.” 

 (citing 

, 20-2-203(a) (LexisNexis 2019)). Under Wyoming Statute § 20-5-
302(a), a district court that made the initial child custody determination maintains
exclusive, continuing jurisdiction over that case until the following conditions occur:

              (i) A court of this state determines that the child, the child’s
                  parents and any person acting as a parent do not have
                  significant connection with this state and that substantial
                  evidence is no longer available in this state concerning the
                  child’s care, protection, training and personal relationships;
                  or

              (ii) A court of this state or a court of another state determines
                   that the child, the child’s parents and any person acting as
                   a parent do not presently reside in this state.

However, when those conditions have not occurred and the district court has exclusive,
continuing jurisdiction, Wyoming Statute § 20-5-307(a) allows the district court to decline
to exercise that jurisdiction at any time based on the doctrine of forum non conveniens:

              A court of this state which has jurisdiction under this act to
              make a child custody determination may decline to exercise its


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               jurisdiction at any time if it determines that it is an
               inconvenient forum under the circumstances and that a court of
               another state is a more appropriate forum. The issue of
               inconvenient forum may be raised upon motion of a party, the
               court’s own motion, or request of another court.

See also 

(a) (allowing a court that has jurisdiction to modify or
enforce an order to decline to exercise its jurisdiction if it finds it is an inconvenient forum).

[¶12] Father argues once the district court decides it has exclusive, continuing jurisdiction
under Wyoming Statute § 20-5-302, it must conclude it is unable to transfer jurisdiction to
another forum. He asserts Wyoming Statute § 20-5-302 “is in conflict with” Wyoming
Statute § 20-5-307, and a district court can only decline jurisdiction if the requirements of
§ 20-5-302(a) are met. Father’s argument is contrary to the plain language of the UCCJEA,
and we have previously rejected this argument. See Pokrovskaya, 

, 

; Symington, 

, 

; Prickett v. Prickett, 

, 

 (Wyo. 2007).

[¶13] “We ‘consider all statutes relating to the same subject or having the same general
purpose and strive to interpret them harmoniously.’ And we ‘will not interpret a statute in
a way that renders any portion meaningless or in a manner producing absurd results.’” MSC
v. MCG, 

, ¶ 19, 

 (Wyo. 2019) (internal citations omitted)
(quoting Int’l Ass’n of Fire Fighters Local Union No. 5058 v. Gillette/Wright/Campbell
Cty. Fire Prot. Joint Powers Bd., 

, ¶ 34, 

 (Wyo. 2018)).
If we interpreted the UCCJEA in the manner suggested by Father, it would render
Wyoming Statute § 20-5-307 meaningless. We have previously recognized these statutory
provisions can be read in harmony:

               Because the [custody order] originated in Wyoming, the
               district court must initially determine if it retains exclusive,
               continuing jurisdiction pursuant to Wyo. Stat. Ann. § 20–5–
               302. If the court concludes that it has jurisdiction, it must then
               decide whether it should decline jurisdiction pursuant to Wyo.
               Stat. Ann. § 20–5–307 because the other state provides a more
               appropriate forum for resolution of the issues presented.

Prickett, 

, 

; see also Pokrovskaya, 

,

 (“Generally, courts have continuing jurisdiction over child custody and
visitation cases. The UCCJEA and the doctrine of forum non conveniens allow courts to
decline continuing jurisdiction under certain circumstances.”); Symington, 

,
¶¶ 8–9, 167 P.3d at 659–61 (holding a district court that had continuing jurisdiction did not
abuse its discretion when it determined it was an inconvenient forum and transferred the


                                                4
case to Idaho). Under the plain language of the UCCJEA, although the Wyoming district
court had exclusive, continuing jurisdiction, it was not precluded from determining whether
it should relinquish that jurisdiction to Texas under Wyoming Statute § 20-5-307.

[¶14] When determining if Wyoming is an inconvenient forum, the district court must
consider the factors set forth in Wyoming Statute § 20-5-307(b). The statutory factors are:

              (i)     Whether domestic violence has occurred and is likely to
                      continue in the future and which state could best protect
                      the parties and the child;
              (ii)    The length of time the child has resided outside this
                      state;
              (iii)   The distance between the court in this state and the court
                      in the state that would assume jurisdiction;
              (iv)    The relative financial circumstances of the parties;
              (v)     Any agreement of the parties as to which state should
                      assume jurisdiction;
              (vi)    The nature and location of evidence required to resolve
                      the pending litigation, including testimony of the child;
              (vii)   The ability of the court of each state to decide the issue
                      expeditiously and the procedures necessary to present
                      the evidence; and
              (viii) The familiarity of the court of each state with the facts
                     and issues in the pending litigation.

(b).

[¶15] Father argues that the district court abused its discretion because it did not consider
the statutory factors set forth in Wyoming Statute § 20-5-307(b) or its Texas counterpart,
Texas Family Code § 152.207. Father’s argument is not supported by the record. The
record shows that both courts considered the inconvenient forum factors in light of the
evidence and testimony presented at the hearing. The courts placed particular emphasis on
factors such as the length of time the child had resided outside of Wyoming, the distance
between the two courts, and the nature and location of the evidence required to resolve the
pending litigation. See 

(b). Specifically, the Wyoming district
court considered the fact that the child had resided in Texas for four years, had medical and
dental providers in Texas, and was seeing a counselor in Texas. While it is true that neither
court made specific findings on all the factors, the UCCJEA order specifically stated the



                                              5
Wyoming court considered all the factors set forth in Wyoming Statute § 20-5-307. After
considering those factors, the district court found Wyoming was an inconvenient forum.

[¶16] Father also takes issue with the district court granting Mother’s second request to
relinquish jurisdiction after it denied her first request. Although the district court denied
Mother’s previous request to relinquish jurisdiction, it was not precluded from determining
Wyoming had become an inconvenient forum when she filed her second request. We have
recognized “[s]ituations change over time, . . . and the changes may lead the court to a
different decision.” Symington, 

, 

. Such changes “are
one of the reasons that [Wyoming Statute] § 20-5-307 is necessary.” Id.

[¶17] Two years had passed since Mother’s initial request to relinquish jurisdiction.
Mother and EDR’s circumstances had changed. EDR had increased ties with Texas, had
lived in Texas for most of her life, and substantial evidence regarding the litigation was
now located in Texas, including evidence regarding Father’s lack of participation in the
parenting facilitation. In addition, the Stipulated Order contemplated the potential transfer
of jurisdiction to Texas. The record contains sufficient evidence to support the district
court’s decision, and it did not abuse its discretion when it found Wyoming was an
inconvenient forum and relinquished jurisdiction to Texas.

   II. Were the parties required to file written pleadings in Wyoming?

[¶18] Father claims his due process rights were violated because the district court did not
require Mother to file written pleadings in Wyoming prior to the UCCJEA hearing. “The
question of whether an individual was afforded due process is one of law subject to de novo
review.” In re TJH, 

, 

 (Wyo. 2021) (citations omitted).
“The touchstones of due process are notice and the opportunity to be heard. With regard
to the amount of process due, we have explained that the notice and the opportunity to be
heard must be appropriate to the nature of the case.” Womack v. Swan, 

, ¶ 20,

 (Wyo. 2018) (quoting ELA v. AAB, 

, 

(Wyo. 2016)). “The opportunity to be heard must be meaningful.” 

 (quoting Goss v.
Goss, 

 (Wyo. 1989)).

[¶19] Father did not cite to any portion of the UCCJEA to support his argument that the
UCCJEA requires written pleadings to be filed before the district court can consider
declining jurisdiction. This argument is contrary to the language of the UCCJEA, which
specifically allows “[t]he issue of inconvenient forum [to be] raised upon motion of a party,
the court’s own motion, or request of another court.” 

(a). In
this case, the inconvenient forum issue was raised at the request of the Texas court. Once
this issue was raised, it was proper for the district court to communicate with the Texas
court. See 

 (a) (“A court of this state may communicate with a
court in another state concerning a proceeding arising under this act.”).



                                             6
[¶20] To support his due process argument, Father primarily relies on Loghry v. Loghry,

 (Wyo. 1996). However, Father’s reliance on Loghry is misplaced. In Loghry,
we found the defendant had been deprived of due process because she had not been
properly notified about the divorce hearing where child custody was determined. 

 at
666–68. As a result, she had been deprived of her property and liberty interests without
notice and a meaningful opportunity to be heard. 

 The issue of notice is not at stake in
this case, and the UCCJEA hearing did not involve modifying Father’s custody or visitation
rights. The hearing involved whether the Wyoming district court would decline to exercise
its jurisdiction. The district court gave Father notice of the UCCJEA hearing, and he
appeared at that hearing with counsel. The district court allowed the parties to participate
in the communication between the Texas and Wyoming courts and present evidence and
arguments before rendering a decision on jurisdiction. The district court gave Father a
meaningful opportunity to be heard. The procedure utilized in this case comports with due
process.

                                     CONCLUSION

[¶21] Although the district court maintained exclusive, continuing jurisdiction to modify
the child custody order under Wyoming Statute § 20-5-302(a), the district court did not
abuse its discretion when it declined to exercise that jurisdiction after finding Wyoming
was an inconvenient forum under Wyoming Statute § 20-5-307. The district court did not
violate Father’s due process rights by not requiring the parties to file written pleadings in
Wyoming. The district court’s order is affirmed.




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